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Cherry v. Shedd

United States District Court, D. Idaho

January 6, 2015



EDWARD J. LODGE, District Judge.

Pending before the Court is Defendants' Motion for Summary Judgment for Failure to Exhaust Administrative Remedies. (Dkt. 30.) The motion is now fully briefed. (Dkt. 35, 37, 40, 46.) Both parties have consented to the jurisdiction of a United States Magistrate Judge to conduct all proceedings in this case in accordance with 28 U.S.C. § 636(c). (Dkt. 29.)

The Court concludes that oral argument is unnecessary to decide the issues presented in the motion. Having reviewed the record, and having considered the arguments of the parties, the Court enters the following Order.


1. Standard of Law

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., 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. -) (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." 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 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. -) (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 addressed as 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 at 936. 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. If the facts concerning whether the exhaustion process was properly completed or if an excuse for failure to complete the process is in dispute, the Court has so noted.

A. 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. 30-2, ¶¶ 5-7.) If the issue cannot be resolved informally through the use of a concern form, the inmate must then file a grievance form. ( Id., ¶ 8.)

The grievance form must be submitted within 30 days of the incident giving rise to the grievance. ( Id., ¶ 8.) 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., ¶ 9.) 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. ) The grievance coordinator then assigns the grievance "to the staff member most appropriate to respond to and, if appropriate, resolve the grievance issue." ( Id., ) That staff member responds to the grievance and returns it to the grievance coordinator, who logs the information into the CIS database. 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., ¶9.) 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. )

If the decision on an inmate's grievance is not satisfactory to the inmate, the inmate may appeal that decision to the "appellate authority." ( Id., ¶¶ 10-11.) Usually, the appellate authority is the warden, except as to medical grievances, where the appellate authority is a contract medical provider administrator. ( Id. at ¶ 11.) When the appellate authority responds, the response is logged into the CIS ...

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