MEMORANDUM DECISION AND ORDER
B. LYNN WINMILL, Chief District Judge.
Plaintiff William "Katlynn" Gray, a prisoner in the custody of the Idaho Department of Correction (IDOC), is proceeding pro se and in forma pauperis in this civil rights action. Now pending before the Court are the following motions: (1) Defendants' Motion to Dismiss (Dkt. 29); (2) Plaintiff's Motion to Strike (Dkt. 35); and (3) Plaintiff's Motion for Sanctions (Dkt. 38).
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.
Because Plaintiff failed to exhaust available administrative remedies with respect to his claims, the Court will grant Defendants' Motion to Dismiss. Plaintiff's Motion to Strike and Motion for Sanctions will be denied.
The facts relevant to Plaintiff's claims are set forth in the Court's Initial Review Order (Dkt. 7) and will not be repeated in detail here. In short, Plaintiff was housed for 21 days in the C-3 tier of the Mental Health Unit (MHU) at the Idaho Maximum Security Institution (IMSI) for the purpose of receiving an evaluation for Gender Identity Disorder. Defendants Geisel, Keller, Cathey, Lake, and Fairgrieve were members of Plaintiff's treatment team.
Plaintiff's Complaint initially asserted multiple claims against various Defendants. The Court reviewed Plaintiff's Complaint under 28 U.S.C. §§ 1915 and 1915A and allowed him to proceed on the following claims: (1) First Amendment claims against Defendants Cathey and Geisel for their alleged retaliatory actions in frequently searching and disorganizing Plaintiff's legal materials; and (2) Eighth Amendment claims against Defendants Geisel, Keller, Cathey, Lake, and Fairgrieve regarding the conditions of confinement in C-3. ( See Initial Review Order, Dkt. 7.)
Defendants Keller, Cathey, Lake and Fairgrieve waived service of process (Dkt. 11) and filed an Answer (Dkt. 18). Defendant Geisel also waived service (Dkt. 12), but has not filed an answer. On December 18, 2012, Plaintiff filed an Amended Complaint (Dkt. 17).
Defendants Keller, Cathey, Lake, and Fairgrieve filed the instant Motion to Dismiss on April 30, 2013 (Dkt. 29). Defendant Geisel joined the Motion on October 1, 2013. (Dkt. 47).
REVIEW OF AMENDED COMPLAINT
The Court has now reviewed Plaintiff's Amended Complaint under 28 U.S.C. §§ 1915 and 1915A. The Amended Complaint is 130 pages long, with an additional 84 pages of exhibits, and the Court concludes that it does not comply with Federal Rule of Civil Procedure 8(a), which requires "a short and plain statement of the claim showing that the pleader is entitled to relief." Therefore, Plaintiff may not proceed on the Amended Complaint. See Knapp v. Hogan, ___ F.3d ___, 2013 WL 6801005, at *1 (9th Cir. Dec. 26, 2013) (holding, in the context of a three-strikes challenge, that failure to comply with Rule 8(a) constitutes a failure to state a claim for relief under the Prison Litigation Reform Act).
Plaintiff's initial Complaint (Dkt. 3), as limited by the Initial Review Order, remains the operative complaint in this case.
Plaintiff asks the Court to strike the Affidavit of Ashley Zortman, filed by Defendants on April 30, 2013 in support of their Motion to Dismiss. Plaintiff incorrectly asserts that the Zortman affidavit contains "expert opinion testimony, conclusionary [sic] statements, [and] irrelevant information" and lacks foundation. (Motion to Strike at 2.) Ms. Zortman is the Grievance Coordinator at IMSI. (Zortman Aff., Dkt. 31, at ¶ 2.) She therefore has personal knowledge of the prison's grievance logs and can testify as to their content. See Fed.R.Evid. 803(6). The affidavit contains facts that are relevant to Defendants' argument that Plaintiff did not exhaust his administrative remedies prior to filing suit. The Court will deny Plaintiff's Motion to Strike.
Plaintiff also seeks sanctions against Defendants for allegedly filing (1) an "egregiously late" reply brief in support of their motion to dismiss and (2) two affidavits along with their reply brief that "are conclusionary [sic], at times contradictory, and largely suggest expert opinions and information outside the realm of personal knowledge." (Memo. in Support of Motion for Sanctions, Dkt. 38-1, at 3.) The Court will deny Plaintiff's request for sanctions. The reply brief was untimely, but only by one day. See Loc. Civ. R. 7.1(a)(6) ("The time periods... automatically generated by CM/ECF for service do not supersede, alter or amend any otherwise applicable Federal or Local Rule specifying a different time period for service or method of computing time."); 7.1(b)(3) (reply brief due 14 days after service of response brief); Fed. R. Civ. 6(d) (allowing three extra days for service in certain circumstances). The Court declines to issue sanctions on that basis, and it has considered Defendants' reply brief notwithstanding the one-day delay.
Further, the affidavit of Stacy Remacle and the second affidavit of Ashley Zortman, submitted with Defendant's reply, are based on personal knowledge and contain relevant information. Because Defendants' Motion to Dismiss is an unenumerated 12(b) motion that permits evidentiary submissions and is not based solely on the pleadings, the affidavits are acceptable. See Wyatt v. Terhune, 315 F.3d 1108, 1119-20 (9th Cir. 2003). They also constitute fair response to Plaintiff's arguments and evidence submitted with his response to Defendants' Motion to Dismiss. See Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996) (stating, in the summary judgment context, that "where new evidence is presented in a reply..., the district court should not consider the new evidence without giving the [other party] an opportunity to respond") (internal quotation marks and alteration omitted). Therefore, the Court will deny Plaintiff's Motion for Sanctions.
Plaintiff also complains that Defendant Geisel's joinder in the other Defendants' Motion to Dismiss was untimely, though he has not filed a motion to strike the joinder. Although the Court notes that Defendant Geisel waited a substantial amount of time to join in the motion and that Defendant Geisel has not answered the Complaint or requested an extension of time, the other Defendants' arguments regarding exhaustion apply equally to Defendant Geisel. Further, Plaintiff has not filed a motion for entry of default against Defendant Geisel. Thus, in the exercise of discretion, the Court will determine whether Plaintiff's claims can be sustained against each of the Defendants notwithstanding Geisel's failure to act in a more timely manner.
DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO EXHAUST ...