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Lerajjareanra-O-Kel-Ly v. Jeffrey Zmuda; Pam Sonnen

September 7, 2012

LERAJJAREANRA-O-KEL-LY, PLAINTIFF,
v.
JEFFREY ZMUDA; PAM SONNEN; DEBBIE WEEDON; LORI BRISBIN; JAMES LOUCK; KEVIN BUTLER; JOHN HARDISON; MICHAEL JOHNSON; KEITH YORDY; JOHANNA SMITH; JEFFREY HENRY; RODNEY SCHLIENZ; ALAN LEE; TIMOTHY RICHARDSON; SARAH LINK; GARTH LYONS; JAY CHRISTENSEN; DAVID VEHLING; BRENT REINKE; TODD MARTIN; KIMBERLY JONES; L. YOUNG; MARK AIELLO; VERNON GREENLAND; LARISSA PFIEFER; RANDY BLADES; SHANNON NICHOLS; VICKY HANSEN; JIMMIE CROSBY; SGT. OVERGAARD; PSYCH. TECH. HEINRICH; AND JOHN AND JANE DOES 1-20,
EMPLOYEES OF THE STATE OF IDAHO BOARD OF CORRECTION AND IDAHO DEPARTMENT OF CORRECTION; DEFENDANTS.



The opinion of the court was delivered by: Honorable Mikel H. Williams United States Magistrate Judge

MEMORANDUM DECISION AND ORDER

Pending before the Court are Defendants' Partial Motion to Dismiss (Dkt. 61), Defendants' Motion for Summary Judgment (Dkt. 62), and Plaintiffs' Motion in Opposition to Defendants' Motion for Summary Judgment (Dkt. 70). All parties have consented to the jurisdiction of a United States Magistrate Judge to enter final orders in this case. (Dkt. 74.) See 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73.

Having reviewed the record, the Court finds that the parties have adequately presented the facts and legal arguments in the briefs and record and that the decisional process would not be significantly aided by oral argument. Therefore, in the interest of avoiding delay, the Court shall decide this matter on the written motions, briefs and record without oral argument. D. Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters the following Order.

DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES

1. Background

In 2006, Plaintiff was designated as a PREA (Prison Rape Elimination Act) inmate. Prison officials justified this label because they had two reports that Plaintiff had sexually assaulted other inmates, and because Plaintiff appeared to be grooming young inmates (for example, ages 18, 19, and 20) for sexual relationships or abuse. As a result, Plaintiff was placed in administrative segregation until his release in 2011, despite Plaintiff's allegations that the PREA designation was based upon false information. While in segregation, Plaintiff complained that his cell was too cold from time to time.

After initial review of the Complaint, Plaintiff was permitted to proceed on the following claims: (1) that Defendants violated Plaintiff's First Amendment rights when they acted out of retaliation for Plaintiff's jailhouse lawyer activities when they refused to remove his predator points, remove his PREA designation, or release him from ad-seg; (2) that Defendants violated Plaintiff's Fourteenth Amendment due process rights when they refused to remove his predator points, remove his PREA designation, give him meaningful housing reviews, or release him from ad-seg; (3) that Plaintiff's Fourteenth Amendment equal protection rights were violated because, among other reasons, other inmates who engaged in sexual activity were not PREA-designated nor were they kept in administrative segregation; and (4) that Defendants violated the Eighth Amendment by housing Plaintiff in unreasonably cold temperatures. (Dkt. 18.)

Defendants now seek dismissal of Plaintiff's Eighth Amendment Claims for failure to exhaust administrative remedies.(Dkt. 61.)

2. Standard of Law

Pursuant to the Prison Litigation Reform Act of 1995 (PLRA),*fn1 a prisoner is required to exhaust all administrative remedies within the prison system before he can bring a civil rights lawsuit challenging the conditions of his confinement. 42 U.S.C. § 1997e(a). "There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court." Jones v. Bock, 549 U.S. 199, 211 (2007).

The Jones v. Bock Court noted that the important policy concern behind requiring exhaustion is that it "allows prison officials an opportunity to resolve disputes concerning the exercise of their responsibilities before being haled into court." Id. at 204. In addition, the Jones v. Bock Court cited with approval the observation that "the primary purpose of a grievance is to alert prison officials to a problem, not to provide personal notice to a particular official that he may be sued; the grievance is not a summons and complaint that initiates adversarial litigation." Id. at 219 (internal citation omitted).

Where there is an "informal[]" and "relative[ly] simpl[e]" prison grievance system, prisoners must take advantage of it before filing a civil rights complaint. Woodford v. Ngo, 548 U.S. 81, 103 (2006). "Proper" exhaustion of administrative remedies is required, meaning that "a prisoner must complete the administrative review process in accordance with the applicable procedural rules, including deadlines, as a precondition to bringing suit in federal court." Id. at 85. Proper exhaustion is "defined not by the PLRA, but by the prison grievance system itself." Jones v. Bock, 549 U.S. at 218. Therefore, the "level of detail necessary in a grievance to comply with the grievance procedures" will be defined by the prison's own grievance policy. Id.

Failure to exhaust administrative remedies is an affirmative defense that should be brought as an unenumerated 12(b) motion. Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003). In deciding a motion to dismiss for failure to exhaust administrative remedies, a court may look beyond the pleadings and decide disputed issues of fact. Id. at 1119-20. Defendants bear the burden of proving failure to exhaust. Brown v. Valoff, 422 F.3d 926 (9th Cir. 2005). The United States Court of Appeals for the Ninth Circuit has instructed that "pro se claims are construed liberally for purposes of the exhaustion requirement." Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 873 (9th Cir. 2008) (immigration context) (relying on Agyeman v. INS, 296 F.3d 871, 878 (9th Cir. 2002) and Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

3. IDOC Grievance Policy

A prisoner held in custody of the Idaho Department of Correction (IDOC) must attempt to resolve any "problem or action" related to his incarceration using the prison's internal grievance system. (Exhibit A to Affidavit of Christina Kearney, Technical Records Specialist/Acting IMSI Grievance Coordinator, Standard Operating Procedure Control Number 316.02.01.001, Docket No. 61-2.) IDOC has a relatively straightforward three-step system, which requires the prisoner to submit an informal concern form describing the problem, file a formal grievance, and submit an appeal of any adverse decision. (Kearney Aff., ¶¶ 4-12.)

The prisoner begins this process by routing the concern form to the staff member most capable of addressing the problem. (Id. at ¶¶ 4-5.) If the issue is not resolved, the prisoner must complete a grievance form, attach a copy of the concern form, and file the grievance within 30 days of the incident. (Id. at ¶ 6.) The "grievance coordinator" at the prison will route a properly-completed grievance to the appropriate staff member, who must respond within 10 days. (Id. at ¶ 9.)

After the staff member responds, the coordinator forwards the grievance to the "reviewing authority," who, after reviewing the prisoner's complaint and the staff member's response, issues a decision. (Id.) If the prisoner is dissatisfied with the reviewing authority's decision, he may then appeal within 5 days to the "appellate authority." (Id. at ¶ 12.) The appellate authority has 14 days to issue a final decision, whereupon the grievance is routed back to the inmate, thus concluding the administrative review process. (Id. at ¶¶ 13-14.)

4. Discussion

Defendants argue that the Eighth Amendment claim is subject to dismissal without prejudice because Plaintiff did not file any grievance related to inadequately-heated living quarters. (Id. at ¶ 18.) Of the 56 grievances Plaintiff submitted in the two years preceding the filing of the Complaint in this action (April 22, 2008, to April 22, 2010), none addressed temperatures in administrative segregation. (Id.)

Plaintiff argues that he filed a grievance regarding inadequate heating in his cell, but his grievance was returned to him because he had more than three pending grievances on other matters in the system. (Dkt. 67, citing Exhibits 1518, 1519.) Plaintiff also argues that he filed another grievance on the condition after May 14, 2006. (Dkt. 67, citing Exhibit 1507.)

Defendants do not disagree with Plaintiff's characterization of the facts, but argue that Plaintiff simply failed to follow the grievance procedure set forth by IDOC by attempting to maintain more than three pending grievances at one time. (Dkt. 73.) The Court disagrees, because the procedure effectively forecloses prisoners from filing legitimate grievances. Prisoners are required to file grievances within a certain number of days, or the grievances will not be accepted. Should a prisoner have four legitimate grievances at roughly the same time, he will be able to pursue only three, and whether he can file the fourth in time is wholly dependent upon whether prison officials process the other three before the time for the filing of the fourth grievance expires. Here, the prison has chosen to make the grievance system unavailable to any prisoner who already has three pending grievances. See Nunez v. Duncan, 591 F.3d 1217, 1226 (9th Cir. 2010) (If prison officials have effectively ...


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