United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
CANDY W. DALE, Magistrate Judge.
Pending before the Court is a Motion to Dismiss for Failure to Exhaust Administrative Remedies and Motion for Summary Judgment filed by Defendants Acel Thacker, Timothy Wengler, and Barbara Ward. (Dkt. 47.) The Motions are now fully briefed. All parties have consented to the jurisdiction of a United States Magistrate Judge to enter final orders in this case. (Dkt. 9.) See 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73.
Having reviewed the record in this matter, and otherwise being fully informed, the Court enters the following Order.
CONSIDERATION OF MOTION TO DISMISS
At the time the allegations arose, Plaintiff was a prisoner housed at the Idaho Correctional Center (ICC). Plaintiff is proceeding on his Amended Complaint alleging Eighth and Fourteenth Amendment claims against Defendants Acel Thacker, Warden Tim Wengler, and Nurse Barbara Ward regarding inadequate medical care for a hernia, mouth cancer,  cataracts, and inflammation to Plaintiff's head. (Dkt. 29, 30.) Defendants assert entitlement to dismissal under Federal Rule of Civil Procedure 12(b).
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 include the claim in a new or ongoing civil rights lawsuit challenging the conditions of his confinement. 42 U.S.C. § 1997e(a); Cano v. Taylor, ___ F.3d ___, 2014 WL 114684 (9th Cir. 2014) (exhaustion of a claim may occur prior to filing suit or during the suit, so long as exhaustion was completed before the first time the prisoner sought to include the claim in the suit). "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 exhaust his administrative remedies, the appropriate remedy is dismissal without prejudice. Id.
The defendant bears the burden of proving failure to exhaust. See Brown v. Valoff, 422 F.3d 926, 936 (9th Cir. 2005). If the defendant does so, "the burden shifts to the plaintiff to show that the administrative remedies were unavailable." Albino v. Baca, 697 F.3d 1023, 1031 (9th Cir. 2012). Confusing or contradictory information given to a prisoner "informs [the] determination of whether relief was, as a practical matter, available.'" Brown, 422 F.3d at 937.
Administrative remedies will be deemed unavailable and exhaustion excused where the prison improperly screened or processed an inmate's grievance, Sapp v. Kimbrell, 623 F.3d 813 (9th Cir. 2010); prison officials misinformed an inmate regarding grievance procedures, even if innocently done, Nunez v. Duncan, 591 F.3d 1217, 1224 (9th Cir. 2010); or "jail staff affirmatively interfered with his ability to exhaust administrative remedies." Albino, 697 F.3d at 1033.
Administrative remedies are also considered "unavailable" where "remedies were "not known and unknowable with reasonable effort." Albino, 697 F.3d at 1037. It is not enough that the prisoner was subjectively unaware of proper grievance procedures. He must also show that "his unawareness was objectively reasonable" - that he "could not have discovered the grievance procedure with reasonable effort." Id. at 1038 ("Albino fails to dispute that the Custody Division Manual described the grievance procedure in § 5-12/010.00, that jail policies required every housing unit to have an adequate supply of Inmate Complaint Forms, or that locked grievance repositories existed in each housing unit"). In addition, "a good faith effort on the part of inmates to exhaust a prison's administrative remedies [is] a prerequisite to finding remedies effectively unavailable." Id. at 1035.
2. ICC Grievance Procedure
ICC follows IDOC's three-stage inmate grievance process. The Declaration of Margaret Purcell, ICC Grievance Coordinator, sets forth the grievances ...