MEMORANDUM DECISION AND ORDER
B. LYNN WINMILL, Chief District Judge.
Defendants have filed the following motions in this prisoner civil rights case: (1) CCA Defendants' Motion to Compel Plaintiff to Respond to Defendants' First Discovery Requests and to Deem Defendants' First Requests for Admissions to Plaintiff Admitted (Motion to Compel) (Dkt. 22); and (2) CCA Defendants' 12(b) Motion to Dismiss (Motion to Dismiss). (Dkt. 23.) Having reviewed the written arguments of the parties, as well as the record in this case, the Court has determined that oral argument is unnecessary, and therefore enters the following Order.
Plaintiff is an inmate in the custody of Idaho Department of Correction (IDOC) and is currently incarcerated at Idaho State Correctional Institution (ISCI). However, between July 6, 2009, and February 15, 2011, Plaintiff was incarcerated at the Idaho Correctional Center (ICC).
On May 25, 2011, Plaintiff filed a civil rights complaint alleging that while he was incarcerated at ICC, Defendant Brenner, a correctional officer, made sexual advances toward him. ( See Dkt. 3.) When Plaintiff declined her sexual advances, he alleges that Defendant Brenner retaliated against him by preventing him from receiving medical treatment and his religious diet, conducting numerous cell and pat-down searches on him, placing him in segregation, and destroying and/or stealing his property. Plaintiff further alleges that Defendants Fry, Yahle, Rogers, and Chaney aided Defendant Brenner in these actions, and that they fired him from his prison job as well. Finally, Plaintiff claims that after he reported the alleged misconduct of Defendants Brenner, Fry, Yahle, Rogers and Chaney, he was then transferred to ISCI. Defendant Ibarra, an ICC investigator, later interviewed Plaintiff about the alleged misconduct but didn't seem concerned about Defendants' threatening conduct toward Plaintiff, and instead harassed and intimidated Plaintiff. ( Id. )
The Court reviewed Plaintiff's initial Complaint and permitted him to proceed only against Defendant Brenner for his claims of Eighth Amendment sexual abuse and First Amendment retaliation. (Dkt. 7.) Thereafter, Plaintiff filed a Supplemental or First Amended Prisoner Civil Rights Complaint. (Dkt. 8.) On June 15, 2012, the Court determined that Plaintiff cured the deficiencies in his original Complaint so he was then permitted to proceed against all Defendants on all of his claims, including constitutional violations of failure to protect, calculated harassment and retaliation, inadequate medical care, and denial of religious practices, so long as he served the Amended Complaint on all Defendants within 60 days after entry of the Order. (Dkt. 12, p.2; Dkt. 8, pp.4-12.) However, on February 11, 2013, the Court ordered all claims against Defendant Brenner dismissed without prejudice because she was not served within the time period set forth in the June 15, 2012 Order. (Dkt. 27, p.4.)
On January 10, 2013, during the discovery period in this case, Defendants Corrections Corporation of America (CCA), Fry, Yahle, Rogers, Chaney and Ibarra (CCA Defendants) filed the two pending motions: a Motion to Compel wherein they argue that Plaintiff's responses to CCA Defendants' discovery requests and request for admissions are evasive and fail to respond to the substance of the questions asked (Dkt. 22), and a Motion to Dismiss this action in its entirety because Plaintiff failed to properly exhaust his administrative remedies as to any of his claims. (Dkt. 23.) Because the CCA Defendants have filed a Motion to Dismiss seeking the complete dismissal of this action, the Court will first address the Motion to Dismiss, and then the Motion to Compel.
CCA DEFENDANTS' MOTION TO DISMISS (DKT. 23)
Pursuant to Federal Rule of Civil Procedure 12(b), CCA Defendants have filed a Motion to Dismiss on the basis that Plaintiff failed to exhaust his administrative remedies prior to filing his lawsuit. For the reasons set forth below, the Court will grant in part and deny in part CCA Defendants' Motion to Dismiss.
1. Standard of Law
Pursuant to the Prison Litigation Reform Act of 1995 (PLRA),  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 "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." Woodford v. Ngo, 548 U.S. 81, 88 (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 Jones v. Bock Court noted 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.
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. at 103. In Woodford v. Ngo , the prisoner had filed his grievance within six months of the incident at issue, rather than within fifteen days as required by the California Prison grievance system. Id. at 2383-84. The Supreme Court rejected the Ninth Circuit's determination that the prisoner "had exhausted administrative remedies simply because no such remedies remained available to him." Id. at 2384.
Failure to exhaust 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).
A. IDOC Grievance Procedure
The IDOC has a relatively simple grievance procedure which ICC follows. The inmate first submits an offender concern form, then a grievance form if informal resolution cannot be accomplished, and finally an appeal of the response to the grievance. See Purcell Aff. (Dkt. 23-2, p.3) ; IDOC Division of Operations Directive 316.02.01.001 (Dkt. 23-5.) Upon intake at ICC, all new inmates receive an inmate handbook that covers numerous topics, including the grievance procedure, as well as verbal instructions regarding the grievance procedure. (Dkt. 23-2, p.2.) An offender must complete all three steps in order to exhaust the administrative grievance process. ( Id., p.5.)
The first step in the inmate grievance process begins with the inmate addressing an Offender Concern Form to the staff member most capable of responding to and, if appropriate, resolving the issue. ( Id., p.3.) The staff member should respond within seven days of receipt of the Offender Concern Form. The concern form is in triplicate; the staff member keeps the white copy, the pink copy is returned to the inmate after the staff member signs for receipt of it (for proof that the concern was sent), and the yellow copy is later returned to the offender with the staff response. (Dkt. 23-5, p.11.)
If the issue is not resolved in the first step, the offender may then proceed to the second step and file a Grievance Form within 30 days of the incident or problem that is the basis for the grievance (unless the reviewing authority grants an extension of time). (Dkt. 23-2, pp.3-4.) The Grievance Form must comply with the following requirements:
(1) the yellow copy of the Offender Concern Form with the staff member's response (or if no response was provided, the inmate must write "no response" in the staff response section) must be attached to the Grievance Form; (2) the Grievance Form must be handwritten (photocopies are not allowed), legible and signed; (3) the Grievance Form must contain specific information including the nature of the complaint, dates, places, and names; and (4) the offender must suggest a solution to the issue and can only raise one issue per grievance. ( Id.; Dkt. 23-5, pp.4-5.) If the Grievance Form is not completed correctly, it is returned to the offender (with all attachments) using a Grievance/Disciplinary Offense Report (DOR) Transmittal Form. (Dkt. 23-5, p.6.)
If the Grievance Form is filled out correctly, the Grievance Coordinator enters the grievance information into the Corrections Integrated System (CIS) electronic database and assigns it to the staff member most appropriate to respond to, and resolve, the grievance. (Dkt. 23-2, pp.4-5; Dkt. 23-5, p.6.) The staff member has ten days to respond, which response is then returned to the Grievance Coordinator who logs the information into the CIS database, and that information is then forwarded to a "reviewing authority, " who is usually a deputy warden. (Dkt. 23-2, p.4; Dkt. 23-5, p.7) The reviewing authority must review the grievance, the staff member's response, and deny, modify or grant the offender's suggested solution. (Dkt. 23-2, p.4.) The reviewing authority then returns the grievance to the Grievance Coordinator, who files the original grievance form and returns a copy to the inmate with the responses of the assigned staff member and reviewing authority. ( Id. )
If the offender is not satisfied with the reviewing authority's response to his grievance, he may proceed to the third step by filing an appeal within five days of receiving the response to his grievance. ( Id. ) The appeal form is the Grievance/Appeal form, with the "Appeal" box checked, and the inmate must attach the original Grievance Form to the Appeal Form and explain why the grievance finding should be changed. ( Id. )
Once the Grievance Coordinator receives the appeal, it is entered into the CIS database and is forwarded to the "appellate authority, " who is typically the facility head. ( Id., p.5.) The appellate authority must respond within 14 days of receipt of the appeal and notify the Grievance Coordinator that the appeal has been completed. The Grievance Coordinator logs the completion date in the CIS database, forwards a printed copy of the grievance and the offender's original attachments to the offender, and files a copy of the printed grievance, the original Grievance/Appeal form, and copies of all attachments in ...