Hartshorn v. Correctional Medical Services

Filing 65

ORDER denying 63 Petition for Reconsideration of the Court's Decision to Dismiss Petitioner's Civil Rights Complaint. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

CURTIS GLENN HARTSHORN,
Case No. 1:08-cv-00308-BLW
Plaintiff,
ORDER
v.
CORRECTIONAL MEDICAL
SERVICES; IDAHO DEPARTMENT
OF CORRECTIONS; JOHN
HARDISON, Warden; S. W.
FISHER, Deputy Warden; JAN EPPS
and LARRY HINES, Health Services
Administrators; JILL WHITTINGTON;
BOB BOWFORT; BONNIE
MINNICK; L. LEE; KAT AMOS;
and JOHN and JANE DOES Nos. 1-6,
CMS employees,
Defendants.

Pending before the Court is Plaintiff’s “Petition for Reconsideration of the Court’s
Decision to Dismiss Petitioner’s Civil Rights Complaint,” filed on October 1, 2010. (Dkt.
63.) This Motion follows denial of Plaintiff’s earlier “Motion to Alter or Amend
Judgment,” filed November 23, 2009. (Dkt. 59.) Having reviewed Plaintiff’s Petition for
Reconsideration, the Court has determined that there is no basis for the Court to
reconsider its earlier ruling.
Plaintiff urges reconsideration of the Court’s ruling that, even though the prison

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policy–requiring that a copy of the Offender Concern Form (OCF) be attached to the
Grievance–might have resulted in Plaintiff being left with no copy of his own, Plaintiff
was still required to follow the grievance procedures to properly exhaust his
administrative remedies before filing a civil rights lawsuit.
The record reflects that Plaintiff was told three times by Grievance Coordinator Jill
Whittington to attach copies of the Offender Concern Forms (OCF) to his Grievance
Forms, so the prison could determine whether Plaintiff had tried to resolve the issue
informally, a pre-requisite to filing a grievance. (Complaint Exhibits, Dkt. 3-2 at 5
(3/3/08), Dkt. 3-2 at 7 (4/7/08), and Dkt. 3-2 at 12 (additionally clarifying that a
handwritten attachment in lieu of the OCF form was not acceptable) (6/6/08).)
Notwithstanding the instructions from the prison on how to resubmit the three
Grievances in proper form, Plaintiff refused to do any of the following: (1) attach the
OCF copy he had; (2) attach the OCF copy he had and seek a receipt or confirmation
upon its submission; (3) ask staff for help in making a copy if the resource center was
unavailable or refused to make a copy; or (4) make a copy in the resource center as soon
as copying became available again. (See Dkt. 3-2 at 14-15.)1 Given these simple
alternatives, Plaintiff’s arguments about the inadequacy and futility of the grievance
system are unconvincing.
1

On May 29, 2008, Plaintiff wrote to Jill Whittington: “I can’t send you my concern
forms because I don’t have copies and it’s taking almost 2 weeks to get into the resource center
due to the old paralegal quitting.” Contrary to that assertion, Plaintiff now argues, without
sufficient factual basis, “it is a fact that they do not make copies of concern forms at the resource
center.” (Dkt. 63 at 2.)
ORDER - 2

Again, “exhausting one’s administrative remedies” is not a meaningless
requirement, since it notifies the prison of problems so that it can resolve them short of
litigation. Accordingly, it is fair to require Plaintiff to take one of the simple actions
suggested above to notify prison officials of his claims in order for the Court to deem
Plaintiff’s claims exhausted. An inmate must take “reasonable and appropriate steps” to
exhaust prison administrative remedies.” Nunez v. Duncan, 591 F.3d 1217, 1225 (9th Cir.
2010).2
“Just because Plaintiff was unhappy with the procedural requirement of attaching
the pink copy does not entitle Plaintiff to ignore the exhaustion requirements.” (Order of
09/24/09, Dkt. 53 at 8.) Because Plaintiff could have complied with the prison’s
instructions for refiling his grievance in any number of ways, the instructions did not
render administrative remedies effectively unavailable so as to excuse the failure to
exhaust. See Sapp v. Kimbrell, 623 F.3d 813, 822 (9th Cir. 2010). Here, as in Sapp v.
Kimbrell, “nothing in the district court record suggests that the prison had created
draconian procedural requirements that would ‘trip[ ] up all but the most skillful

2

Plaintiff also suggests that the Court failed to construe inferences in his favor under
Rule 56. In this case, the exhaustion issue was brought alternatively as a motion to dismiss or a
motion for summary judgment (Dkt. 30), and the Court treated it as an unenumerated 12(b)
motion. (Order of 09/24/09, Dkt. 53 at 4.) The United States Court of Appeals for the Ninth
Circuit has directed that an affirmative defense of failure to exhaust administrative remedies
should be brought as an unenumerated 12(b) motion. Wyatt v. Terhune, 315 F.3d 1108 (9th Cir.
2003). In deciding a motion to dismiss for failure to exhaust administrative remedies, a court
may look beyond the pleadings and decide disputed issues of fact. Id. at 1119-20. In any event,
in this case, there is no dispute that Plaintiff simply refused to give up his copy of the OCF.
Plaintiff argues: “It is not reasonable to expect the [Plaintiff] to send the defendants his only
evidence that he has tried to exhaust his remedies.” (Petition for Reconsideration, Dkt. 63 at 6.)
ORDER - 3

prisoners’–which might . . . render administrative remedies effectively unavailable so as
to excuse a failure to exhaust.” (Id. at 827, citing Woodford v. Ngo, 548 U.S. 81, 102
(2006)).
Federal courts “have distilled various grounds for reconsideration of prior rulings
into three major grounds for justifying reconsideration: (1) an intervening change in
controlling law; (2) the availability of new evidence or an expanded factual record; and
(3) need to correct a clear error or to prevent manifest injustice.” Louen v. Twedt, 2007
WL 915226 (E.D.Cal. March 26, 2007). Plaintiff has not met his burden of showing any
of these grounds. Accordingly, Plaintiff's Petition for Reconsideration will be denied.
ORDER
IT IS ORDERED that the “Petition for Reconsideration of the Court’s Decision to
Dismiss Petitioner’s Civil Rights Complaint” (Dkt. 63) is DENIED.

DATED: September 22, 2011

Honorable B. Lynn Winmill
Chief U. S. District Judge

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