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Rogstad v. Overguard

United States District Court, D. Idaho

December 12, 2019



          Ronald E. Bush Chief U.S. Magistrate Judge

         Pending 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:


         Plaintiff, 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.

         Defendant 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).

         Defendant 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.


         Summary 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).

         The 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.


         Under 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).

         Accordingly, 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.

         When 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).

         Here, 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 ...

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