Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Dunlap v. Frisk

United States District Court, Ninth Circuit

June 10, 2013

TIMOTHY ALLAN DUNLAP, Plaintiff,
v.
FRISK, Kitchen Supervisor for IMSI, Defendant.

MEMORANDUM DECISION AND ORDER

CANDY W. DALE, Magistrate Judge.

Pending before the Court is Defendant's Motion to Dismiss for Failure to Exhaust Administrative Remedies (Dkt. 21), Plaintiff's Motion to Proffer Exhibits (Dkt. 16), Plaintiff's Motion to Proffer Exhibits (Dkt. 18), Plaintiff's Motion for Status Conference (Dkt. 19) and Plaintiff's Motion for Trial Date (Dkt. 20). The Court will treat Defendant's Motion to Dismiss for Failure to Exhaust Administrative Remedies as an unenumerated Rule 12(b) motion.

The parties have consented to a United States Magistrate Judge conducting all proceedings under 28 U.S.C. § 636(c). (Dkt. 14.) The Court finds that the parties have adequately stated the facts and legal arguments in their briefs and that the decisional process would not be significantly aided by oral argument. In the interest of avoiding delay, the Court will decide this matter on the written motions, briefs, and record without oral argument. D. Idaho L. Civ. R. 7.1.

The Court will grant both of Plaintiff's Motions to Proffer Exhibits (Dkts. 16, 18). However, for the reasons set forth below, the Court also will grant Defendant's Motion to Dismiss for Failure to Exhaust Administrative Remedies. (Dkt. 21.) The remaining pending motions will be denied.

BACKGROUND

Plaintiff is a prisoner on death row at the Idaho Maximum Security Institution (IMSI). In his Complaint, he alleges that "almost a year ago, [kitchen supervisor] Frisk took away a lunch on the weekends, now [sic] lower nutrition." (Dkt. 1, p. 1.) Plaintiff contends that he lost weight and suffered a heart attack due to inadequate nutrition. ( Id. ) He has sued Defendant Frisk under 42 U.S.C. § 1983, claiming that Frisk's decision to withdraw weekend lunches violated Plaintiff's right to be free from cruel and unusual punishment under the Eighth Amendment. ( Id. at 2.)

The Court initially reviewed Plaintiff's Complaint pursuant to 28 U.S.C. § 1915, and on January 3, 2013, entered an Order permitting Plaintiff to proceed on the claim that Defendant was deliberately indifferent to Plaintiff's basic health needs in violation of the Eighth Amendment. (Dkt. 13.)

On February 26, 2013, Defendant filed a Motion to Dismiss for Failure to Exhaust Administrative Remedies. (Dkt. 21.) Defendant argues that Plaintiff failed to exhaust the IDOC grievance process with respect to his Eighth Amendment claim. (Dkt. 21-1, p. 7.) Specifically, Defendant argues that Plaintiff did not submit a grievance regarding the IDOC's decision to not serve lunch on the weekends or regarding his health concerns. ( Id. )

Plaintiff did not file a response to oppose the motion until May 7, 2013. (Dkt. 26.) Nonetheless, Plaintiff asserts that he "did complete the PLRA." ( Id. at 1.) On May 23, 2013, Defendant filed his reply to Plaintiff's response. (Dkt. 27.) Defendant argues that Plaintiff's response was untimely, but that even if the Court considers the response, Plaintiff has not set forth any evidence to support his claim that he complied with the IDOC grievance process. ( Id. at 2-4.)

EXHAUSTION OF ADMINISTRATIVE REMEDIES

1. Standard of Law

Pursuant to the Prison Litigation Reform Act of 1995 ("PLRA"), Pub. L. No. 104-134, 110 Stat. 1321, as amended, 42 U.S.C. § 1997e, et seq., a prisoner is required to exhaust all of his 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). "Proper" exhaustion of administrative remedies is required, meaning that the prisoner must comply "with [the prison's] deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings." Woodford v. Ngo, 548 U.S. 81, 90-91 (2006).

"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 exhaustion requirement is based on the important policy concern that prison officials should have "an opportunity to resolve disputes concerning the exercise of their responsibilities before being haled into court." Id. at 204.

Failure to exhaust is an affirmative defense that is "subject to an unenumerated Rule 12(b) motion rather than a motion for summary judgment." Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). In deciding a motion to dismiss for lack of exhaustion, the Court "may look beyond the pleadings and decide disputed issues of fact." Id. at 1120. If a prisoner has failed to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.