Veenstra v. Corrections Corporation of America et al

Filing 39

AMENDED MEMORANDUM DECISION AND ORDER re: 37 Memorandum Decision and Order. Signed by Judge Edward J. Lodge. (dks)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

ALBERT PETE VEENSTRA III,
Plaintiff,
v.

Case No. 1:09-CV-573-EJL
AMENDED* MEMORANDUM
DECISION AND ORDER

CORRECTIONS CORPORATION OF
AMERICA (CCA), a Tennessee corporation;
STEVEN CONRY, V.P., CCA; ICC Mailroom
Supervisor, KATHY RADFORD; PHILIP
VALDEZ, Warden ICC; JOHN/JANE,
Mailroom employees 1&2; Grievance
Coordinator CHESTER PENN; JOEL VANCE
YOUNG, Assistant Warden ICC; sued in their
individual and official capacities, and their
successors in office,
Defendants.

Before the Court are Defendants’ Motion to Dismiss (Dkt. 18), Plaintiff’s Motion
to Supplement (Dkt. 22), and Plaintiff’s Request for Clarification (Dkt. 35). Having fully
reviewed the record, the Court finds that the facts and legal arguments are adequately
presented. Accordingly, in the interest of avoiding further delay, and because the Court
finds that the decisional process would not be significantly aided by oral argument, this
matter shall be decided on the record before this Court Dist. Idaho Loc. Civ. R. 7.1.

* The Memorandum Decision and Order (Dkt.37) is hereby amended only to address
clerical errors on pages 10 and 12. Rather than referring to June and July of 2008, the order is
hereby amended to refer to June and July of 2010.

AMENDED MEMORANDUM DECISION AND ORDER - 1

As explained more fully below, the Court will grant in part and deny in part
Defendants’ Motion to Dismiss (Dkt. 18) and grant Plaintiff’s Motion to Supplement
(Dkt. 22) and Request for Clarification (Dkt. 35).
BACKGROUND
On June 18, 2008, Plaintiff Albert Pete Veenstra III (“Plaintiff”) was transferred
from the Idaho Corrections Center (“ICC”), a private prison operated by Defendant
Corrections Corporation of America (“CCA”), to the Bill Clayton Detention Center
(“BCDC”) in Littlefield, Texas. It is undisputed that Plaintiff’s mail should have been
forwarded to him at this new facility for sixty days, ending on August 18, 2008.
Plaintiff alleges that ICC Mailroom Supervisor Kathy Radford (“Radford”) and
CCA violated this policy sometime between August 8 and 11, 2008 by failing to forward
his legal mail, in particular, a Supreme Court Record prepared by the Gooding County
District Court Clerk that was mailed to Plaintiff on August 7, 2008. See Plaintiff’s
Response to Defendant Kathy Radford’s Affidavit, Ex. 1 (Dkt. 20-3). The Supreme Court
Record was returned to the Gooding County District Court Clerk on August 11 or 12,
2008 without a forwarding address. Id. at Ex. 3.1
Plaintiff alleges that it was important for him to receive this legal mail because he
was representing himself pro se in the state court appellate proceedings. However, there is
no allegation that Plaintiff was prejudiced in his state court appeal as a result of the delay.

1

There is a dispute of fact as to whether the Supreme Court Record was sent to ICC or
the Idaho State Correctional Institute (“ISCI”) before it was sent back to the Good County Clerk
of Court. This dispute is not relevant to the issues before the Court today.
AMENDED MEMORANDUM DECISION AND ORDER - 2

Regardless, Plaintiff did not file a concern form regarding the incident until he was
transferred back to ICC on September 17, 2009, over a year after the alleged incident.
Five days after his transfer, Plaintiff filed an inmate concern form. The next day, ICC
Staff responded that the incident form was untimely. Plaintiff filed both a grievance and a
grievance appeal, thus exhausting his administrative remedies to the extent they were still
available to him over a year after the incident occurred.
On November 6, 2009, Plaintiff initiated the instant proceedings by filing a
Complaint (Dkt. 1). The original Complaint named two Defendants: ICC Mail Room
Supervisor Kathy Radford (“Radford”) and Corrections Corporation of America
(“CCA”), the private company operating the ICC. The allegations were specific to the
single incident described above, wherein Plaintiff’s legal mail was allegedly returned to
the Gooding County District Court Clerk without a forwarding address.
The Court conducted an initial review of the Complaint and allowed Plaintiff to
proceed with the claim against Radford. Dkt. 6, p. 4. In contrast, Plaintiff was not allowed
to proceed with the claims against CCA, because the allegations did not reflect that CCA
had a widespread policy or custom of failing to forward legal mail. Id. at pp. 5-7. The
Initial Review provided Plaintiff with leave to amend the Complaint, which Plaintiff did,
filing the First Amended Complaint on July 12, 2010. (Dkt. 14).
In the First Amended Complaint, Plaintiff continues to allege that Radford is
responsible for the August 2008 incident in which his legal mail was returned to sender
without a forwarding address. Id. In addition, Plaintiff added allegations concerning on-

AMENDED MEMORANDUM DECISION AND ORDER - 3

going mail issues and a new claim regarding the manner in which the grievance
procedures are handled at ICC.
The First Amended Complaint names the following Defendants: (1) Radford;
(2) CCA; (3) Steven Conry, a Vice President of CCA; (4) Phillip Valdez, ICC Warden;
(5) Chester Penn, grievance coordinator at ICC; and (6) Joel Vance Young, Assistant
Warden at ICC. Plaintiff’s claims are: (1) Defendants Valdez, Conry, and Young
condoned improper mail room procedures in violation of the First, Fifth, and Fourteenth
Amendments; (2) Defendant Radford failed to follow established policies and directives
in operating the mailroom in violation of the First, Fifth, and Fourteenth Amendments;
(3) Defendant Radford violated 18 U.S.C. §§ 1701, 1702, and 1703 in obstructing
Plaintiff’s legal mail and causing undue delay; and (4) Defendant Penn failed to follow
established policies and directives in the overall ICC grievance process in violation of the
First, Fifth, and Fourteenth Amendments.
In response, Defendants filed a Motion to Dismiss (Dkt. 18) on the basis that
Plaintiff failed to exhaust his administrative remedies. Defendants contend that claims
based on the alleged failure to forward legal mail in August 2008 were not exhausted in a
timely manner. In addition, Defendants contend that the additional claims based on
allegations that his mail that was not received in a timely manner in June and July 2010
were not exhausted at all prior to the claims being filed.

AMENDED MEMORANDUM DECISION AND ORDER - 4

DISCUSSION
A.

Motion to Dismiss for Failure to Exhaust Administrative Remedies
The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be

brought with respect to prison conditions under section 1983 of this title ... until such
administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). “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). This requirement is
intended to give “prison officials an opportunity to resolve disputes concerning the
exercise of their responsibilities before being haled into court.” Id. at 204.
Proper exhaustion is required, meaning that “a prisoner must complete the
administrative review process in accordance with the applicable procedural rules,
including deadlines, as a precondition to bringing suit in federal court.” Woodford v.
Ngo, 548 U.S. 81, 88 (2006). “[I]t is the prison’s requirements, and not the PLRA, that
define the boundaries of proper exhaustion.” Jones, 549 U.S. at 218.
By its plain terms, however, the PLRA requires prisoners to exhaust only those
avenues of relief that are “available” to them. 42 U.S.C. § 1997a(e). When prison officials
prevent a prisoner from using the correct channels to route a complaint, an administrative
remedy that may be theoretically in place will not be available to the prisoner as a
practical matter, and the failure to adhere to technical requirements will be excused.
Nuñez v. Duncan, 591 F.3d 1217, 1226 (9th Cir. 2010); see also Dole v. Chandler, 438
F.3d 804, 809 (7th Cir. 2006). Confusing or contradictory information given to a prisoner
AMENDED MEMORANDUM DECISION AND ORDER - 5

is also pertinent “because it informs [the] determination of whether relief was, as a
practical matter, ‘available.’” Brown v. Valoff, 422 F.3d 926, 936 (9th Cir. 2005).
A claim that a prisoner failed to exhaust administrative remedies is an affirmative
defense that should be brought as an unenumerated motion to dismiss under Rule 12(b) of
the Federal Rules of Civil Procedure. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir.
2002). The district court may consider matters outside of the pleadings and can resolve
disputed issues of fact, if necessary. Id. Defendants bear the burden of raising and proving
the absence of exhaustion. Brown, 422 F.3d at 936-37.
1.

The ICC Grievance System

ICC follows the IDOC offender grievance process contained in standard operating
procedure (“SOP”) 316.02.01.001, version 3.0, Revised May 2008. See Affidavit of
Chester Penn, ¶ 6, Ex. C (Dkt. 18-2). This grievance system includes three required steps
before the administrative grievance process is exhausted. Id. at ¶ 12. The prisoner must
first file a concern form, then a grievance, and ultimately a grievance appeal if the issue
has not been resolved. Id. at Ex. C, p. 3. Each facility has a locked box for offenders to
place concern forms and grievances. Id. at Ex. C, p. 4.
The federal district court has repeatedly found that this appeals system is generally
adequate because it is a relatively simple grievance procedure that provides inmates with
an available remedy. See, e.g. Leary v. Idaho, CV 07-541-S-EJL, D. Idaho March 17,
2009, 2009 WL 701473 (“The IDOC has a relatively simple grievance procedure.”).

AMENDED MEMORANDUM DECISION AND ORDER - 6

However, the Court has not previously determined this issue as it relates to an Idaho
inmate who allegedly suffers damages at the hands of Idaho prison personnel while the
inmate is housed in an out-of-state prison facility. In the particular circumstances of this
case, the Court finds that Defendants have not met their burden to prove that the
grievance system was “available” to Plaintiff from his remote location.
2.

Administrative Exhaustion and the Returned Legal Mail

Plaintiff claims that there is no requirement that a concern form be filed within 30
days of an incident. This argument is unpersuasive, as it is inconsistent with the ICC
grievance system as a whole and may be inconsistent with Idaho case law. See Butters v.
Valdez, 149 Idaho 764, 241 P.3d 7 (Ct. App. 2010).2
As Plaintiff correctly describes, the concern form does not contain a specific
deadline requirement. However, the prison grievance system requires three steps, and a
concern form is a prerequisite to a grievance form that “must be submitted within 30 days
of the incident.” Affidavit of Chester Penn, Ex. C, p. 5. Thus, the implication of the rule

2

In Butters, the Idaho Court of Appeals in addressing a previous version of the IDOC
grievance system with a fifteen-day deadline stated:
We note, too, that while, as Butters argues, the procedure did not
set an express deadline for filing a concern form, the procedure
contemplated the filing and processing of a concern form in
advance of the filing and processing of the grievance form, which
grievance form must have been filed, under the procedures at issue
in this case, within fifteen days of the incident.
149 Idaho at 769, 241 P.3d 7, 11, n.3.
AMENDED MEMORANDUM DECISION AND ORDER - 7

is that, in order to exhaust all three steps of the grievance procedure, an inmate must file a
concern form within 30 days of the incident in order to ensure that the grievance is timely.
This is how the ICC interprets the time requirements in the grievance procedure,
see Plaintiff’s Ex. 5, p. 3 (Dkt. 22), and this interpretation, though not abundantly clear
from the rules, makes sense to the Court and is not so confusing as to render the grievance
procedure “unavailable.” Moreover, ICC allows the inmate to file a grievance before the
concern form has been answered. Accordingly, the Court is satisfied that the 30-day
concern form deadline is a valid part of the “available” IDOC grievance procedure.
Nonetheless, Defendants have not met their affirmative burden to show the
administrative review process was “available” to Plaintiff when he was in Texas. The
IDOC grievance system described above presupposes that the prisoner is located in the
facility and can return his concern or grievance forms in the lock boxes provided by ICC.
This remedy was not available to Plaintiff from Texas. Moreover, it is not clear that an
alternate remedy was made available to him while he was away.
Moreover, the Court is persuaded that Plaintiff acted quickly to take advantage of
the administrative remedies available almost immediately upon his return to the ICC
facility in Idaho. The record reflects that he exhausted his administrative remedies in
short order at that time. Affidavit of Chester Penn, ¶ 15 (Dkt. 18-2).
The record also indicates that Plaintiff did not anticipate filing a grievance form
until he returned to ICC. He states “I did not file a concern form and a grievance back in
August . . . 2008. I had no reason to worry about legal mail until I came back to ICC.”
AMENDED MEMORANDUM DECISION AND ORDER - 8

See Defendants’ Response to Plaintiff’s Motion to Enter Exhibit “5" and Plaintiff’s
Motion to Stay (Dkt. 25).
In short, the Court does not find on the facts before it at this time that the
grievance system was available to Plaintiff while he was in Texas. Accordingly, the
motion to dismiss on the basis of exhaustion is denied with regard to Plaintiff’s claims
regarding the August 2008 mail incident.
3.

Administrative Exhaustion and the New Claims Re On-Going Problems
with Mail

In the Amended Complaint, Plaintiff alleges that he did not receive his mail in a
timely manner in June and July 2010. Defendant contends that Plaintiff could not have
exhausted these claims, since the Amended Complaint was filed on July 12, 2010.
The Court finds this argument persuasive, noting that Plaintiff does not dispute
these facts or this aspect of the Defendants’ argument. Accordingly, Plaintiff may not
bring a separate claim on the basis that his mail was mishandled in June and July 2010.
Nonetheless, these allegations may be relied upon to establish the policy and
practice claims against CCA originally dismissed in the Initial Review Order. The Court
is not convinced that these allegations are so egregious as to state a separate constitutional
claim, even if the administrative grievance procedures were exhausted. However, they
may, in combination with other allegations, support a claim that there is a pattern or
practice of improper mail handling at ICC.

AMENDED MEMORANDUM DECISION AND ORDER - 9

In accordance with the foregoing, any claims based solely upon the alleged mail
incidents in June and July 2010 are dismissed for failure to exhaust administrative
remedies.
B.

Plaintiff’s Motion to Supplement
The Court will grant Plaintiff’s Motion to Supplement (Dkt. 22). Plaintiff

appropriately requested leave of the court to add this evidence to his opposition to
Defendants’ Motion to Dismiss, and it appears that Defendants do not oppose the exhibit
but rely upon it in support of their position.
Exhibit 5 is a Concern Form dated August 8, 2010, addressed to Pam Sonnen and
seeking clarification regarding the proper timelines applicable to prisoner concern forms.
Consistent with the instant order, Sonnen replied that the term “incident” refers to
whatever it is the prisoner complains of and that the prisoner may file a grievance prior to
receiving an answer regarding his concern form. The Court considered this evidence in
resolving the motion to dismiss issue 3 .
C.

Plaintiff’s Request for Clarification
Plaintiff seeks clarification of the Order for Payment of Inmate Filing Fee (Dkt. 7).

Plaintiff has a job and 50 percent of his wages are garnished to pay child support. Plaintiff

3

The Court also notes Plaintiff’s efforts in trying to understand how the ICC
administrative grievance system works. His concern forms were clear and respectful, as were
Sonnen’s responses. This highlights the importance of a good administrative process and one of
the reasons why administrative exhaustion is required. It allows inmates and prison staff to
communicate with one another, share information, and, ideally, resolve issues informally and
without court intervention.
AMENDED MEMORANDUM DECISION AND ORDER - 10

wants to know if the Court will be paid 20 percent of his income or 20 percent of his
account balance.
The Court Order directing payment of the filing fee reflects that the Court must be
paid 20 percent of Plaintiff’s wages, provided that Plaintiff’s account does not fall below
$10.00. Assuming an account balance of greater than $10.00, this means that for every
dollar Plaintiff earns, $ .50 is paid to his wife and $ .20 is paid to the Court, leaving $ .30
for Plaintiff.
CONCLUSION
In conclusion, Defendants have met their burden and effectively demonstrated that
Plaintiff has not exhausted the administrative appeals process with regard to the claims of
mail problems at ICC in June and July 2010. Nonetheless, the claims regarding the
August 2008 mail incident are not dismissed, as the Court is not convinced that the prison
grievance system was “available” to Plaintiff while he was incarcerated in Texas.
Moreover, the claims against Penn relating to the grievance system remain viable, as they
were not subject to the motion to dismiss.
Furthermore, the Court finds that this case may be appropriate for a telephonic
settlement conference prior to placing it on a case management track. Accordingly, the
Court will allow the parties 30 days from entry of this Order to file a Notice with the
Court indicating their interest in a telephonic settlement. Only if both parties agree will
the Court refer the case to a United States Magistrate Judge for the purpose of holding

AMENDED MEMORANDUM DECISION AND ORDER - 11

telephonic settlement conference. If both parties do not agree to participate in a
telephonic settlement conference, then the Court will issue a Scheduling Order.
ORDER
IT IS ORDERED:
1.

Defendants’ Motion to Dismiss (Dkt. 18) is GRANTED in part and
DENIED in part. The motion is granted to the limited extent that Plaintiff’s
claims related to the alleged mail delays in June and July 2010 are
DISMISSED;

2.

Plaintiff’s Motion to Supplement (Dkt. 22) is GRANTED; and

3.

The parties have 30 days from entry of this Order to file a Notice with the
Court indicating whether they wish to participate in a telephonic settlement
conference before a United States Magistrate Judge.

DATED: April 12, 2011

Honorable Edward J. Lodge
U. S. District Judge

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