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Jody Carr v. Warden Carlyn; Lt.

February 17, 2012


The opinion of the court was delivered by: B. Lynn Winmill Chief Judge United States District Court


Now before the Court is Defendants' Motion to Dismiss. (Dkt. 14). After reviewing the record and being fully advised, the Court enters the following order denying Defendants' motion to dismiss Plaintiff's Complaint.


On April 25, 2011, Hon. Candy W. Dale entered an Initial Review Order in this case allowing Plaintiff to proceed on his access to courts and retaliation claims against Defendants Hartnett, Rivera, and Davidson, but dismissing the remaining claims and defendants. Order, 12 (Dkt. 7). Thereafter, the remaining defendants filed the pending motion to dismiss on the grounds that Plaintiff "failed to exhaust his administrative remedies regarding the retaliation claims," and that he "has failed to state a claim for relief in his access to courts claim.." Motion to Dismiss, 2 (Dkt. 14).

On July 22, 2011, Plaintiff was granted permission, and additional time, to produce additional evidence in response to Defendants' motion, which he did on August 15, 2011. (Dkt. 18). In sum, Plaintiff produced hundreds of pages of various documents, affidavits, concern forms, grievances, and a disciplinary offense report (DOR), all purporting to buttress his contention that the exhaustion requirements have been met. See Evidence List & Exhibits (Dkt. 19). Finally, Plaintiff objects to Defendant's reply brief as not conforming to Rule 11, Rule 56(e) and Local Rule 7.1, and requests that it be stricken and not considered by the Court. Objection (Dkt. 21).

Not all of the parties consented to the jurisdiction of a United States Magistrate Judge to enter final orders in this case. Order of Reassignment (Dkt. 22). Accordingly, Judge Dale reassigned this action to the undersigned District Judge on November 21, 2011. Id.


1.Plaintiff's Objection

Plaintiff takes issue with Defendants' reply in support of their motion to dismiss, requesting that it be stricken. Objection, 1-2 (Dkt. 21). Specifically, he argues that pursuant to Federal Rule of Civil Procedure 11, the document submitted in Reply was not properly signed. Id. Further, Plaintiff argues that because the reply was untimely under Federal Rule of Civil Procedure 56(e) and Local Rule 7.1(a)(2), it should not be considered by the Court. Id.

As an initial matter, the signature on the disputed Reply is adequate. Defense Counsel is a registered participant in the CM/ECF program, and properly executed the signature requirement on the defense reply. See Dist. Idaho Loc. Civ. R. 5.1(j), Electronic Case Filing Procedures 13 ("The electronic filing of any document by a Registered Participant shall constitute the signature of that person for all purposes provided in the Federal Rules.").

Further, regarding the timeliness of the reply, the Court granted Defendants additional time, until August 31, 2011, in which to reply. Docket Entry Order (Dkt. 18). This is the same order in which Plaintiff was granted additional time time to file exhibits. Id. Thus, Plaintiff's motion to strike (Dkt. 21) will be denied, and Defendants' reply (Dkt. 20) will be considered.

2.Exhaustion of Administrative Remedies (Retaliation)

Defendants concede that Plaintiff has exhausted the grievance process with regard to his access to courts claim, but argue that the retaliation claim is discrete, has not been properly grieved, and should be dismissed accordingly. Motion to Dismiss, 6 (Dkt. 14-1). In support of their motion, Defendants submit an affidavit from the Grievance Coordinator at the Idaho Correctional Institution Orofino, Coleen Reed. Affidavit of C. Reed (Dkt. 14-2). Reed states that she reviewed institutional records for grievances submitted by Plaintiff between October 14, 2010, and June 21, 2011. Id. at 4.

During that time, Reed states that Plaintiff initiated the grievance process four times, noting two grievances that relate to this action and two others "not related to missing envelopes or retaliation." Id. However, as Plaintiff points out, despite defense counsel's claims "that Plaintiff did not exhaust the grievance process," the Reed affidavit fails to indicate if Plaintiff did or did not properly exhaust the process ...

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