United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER RE: DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT (DKT. 12)
E. Bush Chief U.S. Magistrate Judge
is Defendant's Motion for Summary Judgment (Dkt. 12).
Having carefully considered the record and otherwise being
fully advised, the Court enters the following Memorandum
Decision and Order:
a prison inmate incarcerated at the Idaho Maximum Security
Institution, brought this 42 U.S.C. § 1983 action pro se
against Defendant, Lieutenant Overgaard, an Idaho Department
of Correction (“IDOC”) employee. Compl. 1-2 (Dkt.
3). Plaintiff alleges that sometime in “spring 2018,
” Defendant entered Plaintiff's cell around 3 a.m.
and “pushed [Plaintiff] against the wall and bed,
” causing injuries and scarring to the back of
Plaintiff's head. Compl. 2. On initial review, the Court
allowed Plaintiff's claim to proceed. Initial Review
Order 3-4 (Dkt. 7). The Court stated that “though
sparse, ” the Complaint sufficiently alleged that
Plaintiff's rights were violated by Defendant's use
of excessive force. Id. at 1, 3.
contends that the only physical encounter he had with
Plaintiff in 2018 occurred on July 13, 2018, at approximately
3:48 a.m. Def.'s Mem. ISO MSJ 2 (Dkt. 12-1); Overgaard
Decl. ¶ 11 (Dkt. 12-2). Defendant prepared a “Use
of Force Individual Report” in response to the July 13
encounter. Overgaard Decl. Ex. A (Dkt. 12-3).
moves for summary judgment, arguing that Plaintiff failed
“to exhaust his administrative remedies in accordance
with 42 U.S.C. § 1997e(a) and Idaho Code §
19-4206(1).” Def.'s MSJ 1 (Dkt. 12). In support of
his motion, Defendant argues that Plaintiff did not even
begin, let alone exhaust, IDOC's three-step
administrative grievance process for incidents such as
described in the Complaint. Def.'s Mem. ISO MSJ 3, 5.
Defendant contends there is no doubt that Plaintiff was aware
of the administrative process, as he has used it ten times.
Id. at 8-9; Young Decl. Exs. B, C (Dkts. 12-6,
12-7). However, none of those ten grievances, according to
Defendant, applies to the incident described in
Plaintiffs' Complaint because the grievances were
factually unrelated or were not submitted within 30 days
after the incident, as IDOC's policy requires. Def.'s
Mem. ISO MSJ 8-9. Therefore, Defendant contends “it is
undisputed Plaintiff failed to exhaust his administrative
remedies” related to the incident and his claims must
be dismissed. Id. at 8-9. Plaintiff did not respond
to Defendant's Motion and the time to do so has passed.
See Dist. Idaho Loc. Civ. R. 7.1.
judgment is proper when a “movant shows that 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). A fact is “material” if it “might
affect the outcome of the suit under the governing
law.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). A dispute is “genuine” if
there is sufficient evidence for a reasonable trier of fact
to decide in favor of the nonmoving party. Id. The
court must view reasonable inferences drawn from the record
in favor of the nonmoving party. Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986).
In deciding a motion for summary judgment, the court
“may not weigh the evidence or make credibility
determinations.” Freeman v. Arpaio, 125 F.3d
732, 735 (9th Cir. 1997).
party seeking summary judgment always bears both the ultimate
burden of persuasion and the initial burden of producing
those portions of the pleadings, discovery, and affidavits
that show the absence of a genuine issue of material fact.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). “If a moving party fails to carry its initial
burden of production, the nonmoving party has no obligation
to produce anything, even if the nonmoving party would have
the ultimate burden of persuasion at trial.” Nissan
Fire & Marine Ins. Co. v. Fritz Companies, Inc., 210
F.3d 1099, 1102-03 (9th Cir. 2000). Where the moving party
carries its burden of production, then the nonmoving party
must produce evidence to support its claim or defense.
Id. at 1103. Doing so requires more than a simple
showing that “there is some metaphysical doubt as to
the material facts.” Matsushita Elec., 475 U.S. at 586.
Instead, the nonmovant must “identify with reasonable
particularity the evidence that precludes summary judgment,
” because the duty of the court is not to “scour
the record in search of a genuine issue of triable
fact.” Keenan v. Allan, 91 F.3d 1275, 1279
(9th Cir. 1996). If the nonmovant fails to produce evidence
that supports its claim or defense, the court must enter
summary judgment in favor of the movant. See Celotex, 477
U.S. at 323.
the Prison Litigation Reform Act (“PLRA”), when a
correctional institution makes administrative remedies
available to prisoners, an aggrieved prisoner must exhaust
such remedies before suing under § 1983. 42 U.S.C.
§ 1997e(a); see also Idaho Code § 19-4206(1). A
failure to exhaust such remedies creates only an affirmative
defense the defendant must plead and prove, rather than a
prima facie element of the § 1983 claim, because
“inmates are not required to specially plead or
demonstrate exhaustion in their complaints.” Jones
v. Bock, 549 U.S. 199, 216 (2007). Hence, if the
evidence is undisputed even when viewed most favorably to the
plaintiff, the defendant is entitled to summary judgment if
the plaintiff failed to exhaust administrative remedies.
Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014).
the analysis focuses upon the existence of an available
administrative remedy and whether the prisoner exhausted that
available remedy. Id. at 1172. In turn, the question
of exhaustion turns upon the policies and procedures of the
specific prison system in which the plaintiff is
incarcerated, and thus can vary from one prison to another.
Jones, 549 U.S. at 218; Woodford v. Ngo, 548 U.S.
81, 88-91 (2007). If the defendant puts on proof of such an
available remedy and the failure of the plaintiff to utilize
that remedy, then the burden shifts to the plaintiff
“to come forward with evidence showing that there is
something in his particular case that made the existing and
generally available administrative remedies effectively
unavailable to him.” Id.
the nonmoving party does not properly address another
party's assertion of fact, the court may “consider
the uncontested material facts as undisputed.” Dist.
Idaho Loc. Civ. R. 7.1(e)(2). “[I]f the motion and
supporting materials-including the facts considered
undisputed-show that the moving party is entitled to the
granting of the motion, ” then the court may properly
grant summary judgment. Id.; see also Fed.R.Civ.P.
56(c), (e). “However . . . the ultimate burden of proof
remains with the defendant” when that defendant is
seeking summary judgment in the PLRA context. Albino, 747
F.3d at 1172 (citing Jones, 549 U.S. 199).
the record evidence shows that IDOC has implemented a
three-step administrative process that is outlined in
Standard Operating Procedure 316.02.01.001
(“SOP”). Young. Decl. Ex. A (Dkt. 12-5). The SOP
was in place at the time of the incident alleged by Plaintiff
in the Complaint. All grievances are logged and retained in a
record-keeping system, regardless of the subsequent action
taken, or the lack thereof. Def's Mem. ISO MSJ at 4. The
SOP includes template forms to be used by inmates and ...