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Carr v. Higgens

United States District Court, D. Idaho

September 5, 2014

JODY CARR, Plaintiff,


RONALD E. BUSH, Magistrate Judge.


Plaintiff Jody Carr, 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. All parties have consented to the jurisdiction of a United States Magistrate Judge to enter final orders in this case. (Dkt. 28.) See 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73. Plaintiff's cruel and unusual punishment and related retaliation claims arise from his incarceration at the Idaho Correctional Institution - Orofino (ICI-O) in 2011. His due process and related retaliation claims arise from his subsequent incarceration at the Idaho State Correctional Institution (ISCI) in 2012.

Plaintiff raises these types of claims: (1) Eighth Amendment claims, for allegedly contaminating his food with feces, against Correctional Officer Crystal Fleming, Correctional Corporal Randy Hartnett, and Correctional Officer Kathy Davidson; (2) First or Fourteenth Amendment retaliation claims against Defendants Fleming, Hartnett, and Davidson, for allegedly contaminating Plaintiff's food out of retaliation for Plaintiff's role in causing the prison to institute disciplinary actions against Fleming and her boss, Sergeant Roane, and for Plaintiff's prior lawsuit against Hartnett and Davidson; (3) a Fourteenth Amendment due process claim against Defendant Higgins for allegedly holding Plaintiff in administrative segregation for approximately one year without notice or a hearing; and (4) First or Fourteenth Amendment retaliation claims against Defendant Higgins for allegedly transferring Plaintiff to different prisons in response to Plaintiff's concern forms and grievances and as part of a widespread civil conspiracy to retaliate against him for engaging in litigation against other prison officials. (Dkt. 10.)

For the reasons described to follow, the Court grants Defendants' Cross-Motion for Summary Judgment for failure to exhaust administrative remedies as to Claims 1 and 2, but denies it as to Claim 4. The Court grants Defendants' Summary Judgment Motion as to the individual capacity portion of Claim 3, on qualified immunity grounds; the official capacity portion of Claim 3, on mootness grounds; and Claim 4 in its entirety, on the merits. Plaintiff's Motion for Summary Judgment is denied, and his additional motions will be denied.


Summary judgment is appropriate where a party can show that, as to a particular claim or defense, "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). One of the principal purposes of the summary judgment rule "is to isolate and dispose of factually unsupported claims or defenses." Celotex Corp. v. Catrett , 477 U.S. 317, 323-24 (1986). It is not "a disfavored procedural shortcut, " but is instead the "principal tool[] by which factually insufficient claims or defenses [can] be isolated and prevented from going to trial with the attendant unwarranted consumption of public and private resources." Id . at 327.

"[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment...." Anderson v. Liberty Lobby, Inc ., 477 U.S. 242, 247-48 (1986). Rather, there must be no genuine dispute as to any material fact in order for a case to survive summary judgment. Material facts are those "that might affect the outcome of the suit." Id. at 248. "Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment." T.W. Elec. Serv., Inc. v. P. Elec. Contractors Ass'n , 809 F.2d 626, 630 (9th Cir. 1987).

The moving party is entitled to summary judgment if that party shows that each material fact cannot be disputed. To show that the material facts are not in dispute, a party may cite to particular parts of materials in the record, or show that the adverse party is unable to produce admissible evidence to support the fact. Fed.R.Civ.P. 56(c)(1)(A) & (B). The Court must consider "the cited materials, " but it may also consider "other materials in the record." Fed.R.Civ.P. 56(c)(3). The Court is "not required to comb through the record to find some reason to deny a motion for summary judgment." Carmen v. San Francisco Unified Sch. Dist. , 237 F.3d 1026, 1029 (9th Cir. 2001) (internal quotation marks omitted). Instead, the "party opposing summary judgment must direct [the Court's] attention to specific triable facts." So. Ca. Gas Co. v. City of Santa Ana , 336 F.3d 885, 889 (9th Cir. 2003).

If the moving party meets its initial responsibility, then the burden shifts to the opposing party to establish that a genuine dispute as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586 (1986). The existence of a scintilla of evidence in support of the non-moving party's position is insufficient. Rather, "there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson , 477 U.S. at 252.

Material used to support or dispute a fact must be "presented in a form that would be admissible in evidence." Fed.R.Civ.P. 56(c)(2).[1] Affidavits or declarations submitted in support of or in opposition to a motion "must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Fed.R.Civ.P. 56(c)(4).

If a party "fails to properly support an assertion of fact or fails to properly address another party's assertion of fact, " the Court may consider that fact to be undisputed. Fed.R.Civ.P. 56(e)(2). The Court may grant summary judgment for the moving party "if the motion and supporting materials-including the facts considered undisputed-show that the movant is entitled to it." Fed.R.Civ.P. 56(e)(3). The Court may also grant summary judgment to a non-moving party, on a ground not raised by either party, or sua sponte provided that the parties are given notice and a reasonable opportunity to respond. Fed.R.Civ.P. 56(f).

The Court does not decide credibility of affiants or weigh the evidence set forth by the non-moving party. Although all reasonable inferences which can be drawn from the evidence must be drawn in a light most favorable to the non-moving party, T.W. Elec. Serv., Inc. , 809 F.2d at 630-31, the Court is not required to adopt unreasonable inferences from circumstantial evidence. McLaughlin v. Liu , 849 F.2d 1205, 1208 (9th Cir. 1988).


1. Standard of Law

The Prison Litigation Reform Act of 1995 ("PLRA")[2] requires a prisoner to exhaust all available administrative remedies within the prison system before he can include the claims in a new or ongoing civil rights lawsuit challenging the conditions of confinement. 42 U.S.C. § 1997e(a); Cano v. Taylor , 739 F.3d 1214, 1220-21 (9th Cir. 2014) (a claim may be exhausted prior to filing suit or during 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. Once in court, defendants have the right to bring motions addressing exhaustion of administrative remedies at the very beginning of litigation, and "disputed factual questions relevant to exhaustion should be decided at that time. Albino v. Baca , 747 F.3d 1162, 1171 (9th Cir. 2014) (en banc).

Failure to exhaust is an affirmative defense that may be asserted in a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss for failure to state a claim only if the prisoner's failure to exhaust is clear from the face of the complaint and any public records subject to judicial notice. Albino , 747 F.3d at 1166. When either party relies on evidence beyond the pleadings and public records, the exhaustion issue should be brought as, or converted into, a motion for summary judgment under Rule 56. Id. at 1170. "If the record is sufficiently developed to permit the trial court to consider summary judgment, and if the court finds that when viewing the evidence in the light most favorable to a moving party the movant has not shown a genuine dispute of fact on the issue of exhaustion, " the Court may enter summary judgment for either the moving or the nonmoving party (on the court's own motion). Id . at 1176; see Fed.R.Civ.P. 56(f) ("After giving notice and a reasonable time to respond, the court may... grant summary judgment for a nonmovant.")

Rule 56 prohibits the courts from resolving genuine disputes as to material facts on summary judgment. If a genuine dispute exists as to material facts relating to an exhaustion defense, the motion should be denied, and the "disputed factual questions relevant to exhaustion should be decided by the judge, in the same manner a judge rather than a jury decides disputed factual questions relevant to jurisdiction and venue." Id. at 1170-71. See also McNutt v. General Motors Acceptance Corp. of Ind. , 298 U.S. 178, 184 (1936) (stating that the court may "inquire into the facts as they really exist") (internal quotation marks omitted); Murphy v. Schneider Nat'l, Inc. , 362 F.3d 1133, 1139 (9th Cir. 2004) (stating that the court may "hold[] an evidentiary hearing on the disputed facts"); Lake v. Lake , 817 F.2d 1416, 1420 (9th Cir. 1987) (stating that the court "has the discretion to take evidence at a preliminary hearing in order to resolve any questions of credibility or fact" and that the plaintiff must establish the facts "by a preponderance of the evidence, just as he would have to do at trial") (internal quotation marks omitted). The issue of "[e]xhaustion should be decided, if feasible, before reaching the merits of a prisoner's claim." Albino , 747 F.3d at 1170.

The defendant bears the ultimate burden of proving failure to exhaust. See Brown v. Valoff , 422 F.3d 926, 936 (9th Cir. 2005). If the defendant initially shows that (1) an available administrative remedy existed and (2) the prisoner failed to exhaust that remedy, then the burden of production shifts to the plaintiff to bring forth evidence "showing that there is something in his particular case that made the existing and generally available administrative remedies effectively unavailable to him." Albino , 747 F.3d at 1172.

Confusing or contradictory information given to a prisoner is relevant to the question "of whether relief was, as a practical matter, available.'" Brown , 422 F.3d at 937. Administrative remedies will be deemed unavailable and exhaustion excused if the inmate had no way of knowing the prison's grievance procedure, if the prison improperly processed an inmate's grievance, if prison officials misinformed an inmate regarding grievance procedures, if the inmate "did not have access to the necessary grievance forms within the prison's time limits for filing the grievance, " or if prison staff took any other similar actions that interfered with an inmate's efforts to exhaust. Albino , 747 F.3d at 1173.

If a prisoner has failed to exhaust available administrative remedies, the appropriate remedy is dismissal without prejudice. Wyatt v. Terhune , 315 F.3d 1108, 1120 (9th Cir. 2003), overruled in part on other grounds by Albino , 747 F.3d 1162.

2. Material Facts

The facts material to the administrative exhaustion question are included within the following sections of this decision. The steps required to complete the IDOC Grievance Process, which are published in the prison policy manual, are undisputed. Where the facts concerning whether the exhaustion process was properly completed or whether an excuse for failure to complete the process are in dispute, the Court has so noted.

3. IDOC Grievance Process

There are three stages in the IDOC grievance process. First, an inmate with a concern must seek an informal resolution by filling out an offender concern form, addressed to the staff person "most capable of responding to and, if appropriate, resolving the issue." (Whittington Aff., Dkt. 30-7, ¶¶ 4-5.) If the issue cannot be resolved informally through the use of a concern form, the inmate must then file a grievance form. ( Id ., ¶¶ 4-6.)

The grievance form must be submitted within 30 days of the incident giving rise to the grievance. ( Id ., ¶ 19.) In submitting a grievance, the inmate must attach a copy of the offender concern form, showing the inmate's attempt to settle the issue informally. ( Id ., ¶ 7.) Only one issue may be raised in a grievance, and there must be "specific information including the nature of the complaint, dates, places, and names." ( Id .) After receiving the grievance, the grievance coordinator "enters the grievance information into the Corrections Integrated System (CIS), " an electronic database used to track grievances. ( Id . at ¶ 8.) The grievance coordinator then "assigns the grievance to the staff member most capable of responding to and, if appropriate, resolving the issue." ( Id . at ¶ 9.) That staff member responds to the grievance and returns it to the grievance coordinator. The grievance coordinator then forwards the grievance to a "reviewing authority, " usually a deputy warden. ( Id .)

The reviewing authority reviews the grievance, including the staff member's response, and then must deny, grant, or modify the grievance. ( Id . at ¶ 10.) The reviewing authority returns the grievance and response to the grievance coordinator, who logs the response into the database and sends the "completed" grievance back to the inmate. ( Id ., ¶¶ 10-12.) If the decision on an inmate's grievance is not satisfactory to the inmate, the inmate may appeal that decision. ( Id ., ¶ 12.) Usually, the "facility head" is the person who usually decides an inmate's grievance appeal. ( Id . at ¶ 13.)

When all three of these steps-concern form, grievance form, and grievance appeal-are completed, the administrative grievance process is exhausted. ( Id. at ¶ 14.)

4. Plaintiff Did Not Exhaust Available Administrative Remedies on Claims 1 and 2

Plaintiff first filed a grievance regarding a claim that Defendants mixed human feces with his food on February 28, 2013, over a year and three months after the alleged incident occurred in November 2011. That grievance was rejected as untimely. ( Id. , Dkt. 30-7 & Exh. D, Dkt. 30-8, p.23; Dkt. 71-5, p. 22.) It is uncontested that Plaintiff did not meet the 30-day deadline for exhausting his administrative remedies regarding that claim, or Plaintiff's companion claim that the feces incident was in retaliation for Plaintiff's exercise of his constitutional right to pursue a prior civil rights lawsuit against Defendants Hartnett and Davison. (See Whittington Aff. ¶ 19, Dkt. 30-7, reporting results of a search of the grievance database; see Case No. 3:10-cv-00625-BLW, Carr v. Carlyn, Davidson, and Hartnett, et al .)

Plaintiff says he did not file a grievance for these reasons:

Defendants went past "threats" and literally did attempt to murder and/or assault Plaintiff by feeding him poisoned human feces in retaliation for exercise of his First Amendment right to petition for redress of grievances. Thereby until the Plaintiff knew it would be more harmful to his health and risking his life more to NOT grieve the issue, he tried to keep his head down and his mouth shut, but once the Doctor informed him of two things; 1. he caught the C-Diff from being fed poop; and, 2. C-Diff is potentially fatal, the Plaintiff filed concern forms, wrote letters to Paul Panther and in appropriate time line did file Grievance.

(Dkt. 71, p. 2. (spelling regularized).)

Plaintiff's factual assertions, however, are contradicted by his own actions in the lawsuit he filed contemporaneously-Case No. 3:10-cv-00625-BLW, Carr v. Carlyn, Davidson, and Hartnett, et al (the "10-625 Case"). The details of that case, and the very fact that it was filed and prosecuted, make clear that Plaintiff was not "keeping his head down and his mouth shut." Rather, between December 16, 2010, when he filed the prior lawsuit against Defendants Davidson and Hartnett, and March 2012, when he asserts that he first learned from an Orofino doctor that C-Diff.[3] "came from eating infected Human Feces" (Dkt. 64), Plaintiff was busy pursuing that lawsuit, in which he alleged that Defendants had retaliated against Plaintiff for collecting evidence about a $3.5 million class action lawsuit he planned to file. Hence, any claim that Plaintiff feared for his life and therefore feared filing a grievance about the feces incident is unsupported by the record because he was already aggressively pursuing Davidson and Hartnett in a different lawsuit. In addition, Plaintiff's assertions are contrary to his own chronology of events: Plaintiff says that he had fears in November of 2011 that Defendants "went past threats' and literally did attempt to murder and/or assault" him, but he later claims that he did not learn the causal link between the ingesting of the feces and the potentially fatal effects of C-Diff. until four months later, in March 2012.

Plaintiff also implies that he was too ill to file a grievance. Yet, in the same time period, he was able to file numerous pleadings and papers in the 10-625 Case, including a motion for entry of default judgment, a reply to Defendants' answer, a notice of change of address, and a motion for summary judgment, all between November 2011 and the first half of 2012.

Plaintiff's assertions that he began to diligently pursue his rights once he knew that C-Diff. could be contracted from eating feces are also contradicted by the record. He did not file his grievance until February 2013. Yet, nearly a year earlier on March 17, 2012, Plaintiff wrote a letter to the state attorney general informing him that Plaintiff had contracted C-Diff. from the prison staff feeding him feces, and he demanded a settlement in the 10-625 Case.

Similarly, Plaintiff's assertions that his cause of action, or reason for filing the grievance, did not arise until he knew that he was gravely ill from eating the feces in March 2012, are flatly contradicted by other assertions in the record, including his allegations that, in November 2011, an unidentified officer approached him and informed him that other officers were putting feces in his food, and, also in November 2011, "he became very sick and started to try to gather Evidence and Affidavits." (Dkt. 3, p. 29, 12.)

Regardless of the earliest of such allegations, and the possible connection in Plaintiffs' mind between his allegations of having been fed feces in his meals and any illness he was suffering, it is inescapable that when he learned that C-Diff. could be contracted from eating feces in March 2012, he had all the information he needed to file a grievance about the matter. Therefore, even giving Plaintiff the benefit of the doubt as to the information he already knew even before March 2012 (dating back to November of 2011), Plaintiff still did not file his grievance until February of 2013, long past the 30-day time period to do so after March 2012.

A party may not contradict himself to create a question of fact. See Kennedy v. Allied Mutual , 952 F.2d 262, 266 (9th Cir. 1991). Neither is the Court required to adopt unreasonable inferences from circumstantial evidence. McLaughlin v. Liu , 849 F.2d at 1208. Because Plaintiff's arguments are contradicted by his own statements found elsewhere in the record, the Court concludes that there is no genuine dispute as to any material fact regarding Defendants' evidence that Plaintiff did not exhaust his administrative remedies in a timely manner. Rather, it appears that Plaintiff makes statements to suit his needs at the time, and, here, the statements that disprove his assertions came first. Neither is there any genuine dispute that Plaintiff knew how to and could have pursued a grievance in November 2011, when he allegedly learned of the feces incident, or in March 2012, when he allegedly learned the causal connection between the alleged ingestion of feces and his C-Diff. infection.

As a result, Claims 1 and 2 will be dismissed without prejudice.

5. Plaintiff's Failure to Grieve Claim 4 is Excused on Unavailability Grounds

As to Claim 4, a search of the grievance database revealed no grievance addressing the claim that Defendant Higgins (or any other potential Defendant) transferred Plaintiff to different prisons in retaliation for Plaintiff's exercise of his constitutional rights. (Whittington Aff., ¶ 20 & Exh. C, Dkt. 30-8.)

However, on February 21, 2013, Plaintiff wrote a concern form about the alleged 2011 feces incident, and also complained that he had been transported five times, held in segregation in three facilities, and deprived of due process for more than a year-all the result of "a conspiracy to retaliate." (Dkt. 21-2, p. 34.) On February 24, 2013, a staff member (under Badge No. 9964) wrote in response: "We are unable to respond due to the fact that there is pending litigation. We apologize that we cannot respond." ( Id .)

Confusing or contradictory information given to a prisoner is relevant to whether grievance relief "was, as a practical matter, available.'" Brown , 422 F.3d at 937. Here, a prison staff person informed Plaintiff that the prison could not respond to his concern form, which was the first step required of Plaintiff in the grievance procedure. Such a statement could have been interpreted as an instruction that Plaintiff should not pursue further relief through the prison grievance system. Therefore, there was no reason for Plaintiff to further pursue a grievance in those circumstances. Therefore, Defendants' motion will be denied on this claim, and the Court will consider the merits of the claim.


Plaintiff's due process claim ...

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