Sheridan v. Reinke et al

Filing 40

MEMORANDUM DECISION AND ORDER denying 23 Motion to Dismiss. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (dks)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

MICHAEL SHERIDAN,
Case No. 1:10-CV-00359-EJL
Plaintiff,
v.
BRENT REINKE; PHILIP VALDEZ;
NORMA RODRIGUEZ; MADDOX;
JUSTIN ACOSTA; CHRISTOPHER
ROSE; SERGEANT KERR; CHARLES
FLETCHER; and CORRECTIONS
CORPORATION OF AMERICA,

MEMORANDUM DECISION AND
ORDER ON MOTION TO
DISMISS OR FOR SUMMARY
JUDGMENT (Dkt. 23)

Defendants.
Currently pending is Defendants’ Motion to Dismiss or for Summary Judgment
(Dkt. 23). Plaintiff has responded to the Motion (Dkt. 25). Defendants have submitted a
Reply (Dkt. 26), and the matter is now ripe. The Court finds that the decisional process
would not be aided by oral argument, and it will resolve this matter after consideration of
the parties’ written briefing. D. Idaho L. Civ. R. 7.1(d). For the reasons set forth below,
the Court will deny Defendants’ Motion.
BACKGROUND
Plaintiff is an inmate in custody of the Idaho Department of Corrections (IDOC)
housed at the private prison, Idaho Correctional Center (ICC), which is operated by

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Correctional Corporation of America (CCA). The Court reviewed Plaintiff’s initial
complaint and allowed one claim to proceed forward under the Eighth Amendment
related to his conditions of confinement as against CCA, one of its facilitators, Phillip
Valdez, and Plaintiff’s Unit Manager, Norma Rodriquez (collectively “CCA
Defendants”). (Dkt. 14).
Under this claim, Plaintiff alleges that during the seven years of his confinement,
from January 2001 to July 2008, the conditions of his confinement posed a serious risk to
his personal safety. He alleges that there were insufficient staff and that the staff were not
adequately trained, that a culture existed that promoted gang and inmate violence, that the
detention officers (including Defendants Rodriquez and Valdez) were aware of the
serious risks of and incidents of violence and not only were deliberately indifferent to
them, but promoted the incidents intentionally through customs and policies in treatment
of the inmates. Plaintiff alleges that he at all times was completely disabled from Post
Traumatic Stress Disorder (PTSD), and that as a result of these conditions of
confinement, he experienced the “threat of physical violence” daily, and that his PTSD
was exacerbated.
DISCUSSION
The CCA Defendants move to dismiss or for summary judgment on two grounds:
(1) Plaintiff failed to exhaust his administrative remedies, and (2) Plaintiff seeks damages
for an injury that is non-compensable under 42 U.S.C. § 1983.
A.

The Exhaustion Requirement

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In the Ninth Circuit, 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). Defendants have the burden to plead and prove
exhaustion, and the reviewing court may look beyond the pleadings to resolve disputed
issues of fact, if necessary. Id.
The federal Prison Litigation Reform Act (PLRA) requires pre-complaint
exhaustion of administrative remedies for all federal claims brought by state prisoners
who challenge the conditions of their confinement: “[n]o action shall be brought with
respect to prison conditions under section 1983 of this title, or any other federal law, 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.
Under the PLRA, proper exhaustion is also 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). “The level of detail necessary in a grievance to
comply with the grievance procedures will vary from system to system and claim to
claim, but it is the prison’s requirements, and not the PLRA, that define the boundaries of
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proper exhaustion.” Jones, 549 U.S. at 218.
There are some circumstances under which courts have excused an inmate’s failure
to comply with technical exhaustion requirements, however. For example, when prison
officials prevented exhaustion from occurring through misconduct or failure to respond to
a grievance within the policy time limits. See Hoak v. Smith, 2009 WL 3806336 (D.
Idaho Nov. 9, 2009). Additionally, inmates have been allowed to proceed when no other
relief is available at the agency level. In other words, “[o]nce an agency has granted
some relief and explained that no other relief is available, ‘the administrative process has
not been obstructed it has been exhausted.’” Brown v. Valoff, 422 F.3d 926, 936 (9th Cir.
2005)(quoting Jasch v. Potter, 302 F.3d 1092, 1096 (9th Cir. 2002)).
1.

ICC’s Grievance Process

Although it is a privately-run prison, ICC follows the same three-step
administrative grievance procedure that the Idaho Department of Correction uses, which
requires a prisoner to submit an informal concern form describing the problem, followed
by the filing of a formal grievance, and an appeal of any adverse decision. (Affidavit of
Chester Penn, Dkt. 23-2 (“Penn Aff.”), at ¶¶ 5&6; Exh. B.)
The prisoner begins this process by routing the concern form to the staff member
most capable of addressing the problem. (Penn Aff., ¶ 11.) If the issue is not resolved, the
prisoner must then complete a grievance form and file the grievance within 15 days of the
incident. (Id. at ¶ 12.) The grievance form must contain specific information regarding the
nature of the complaint, including the dates, places, names, and how the offender has
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been adversely affected. (Id. at ¶ 13.) The “grievance coordinator” at the prison will route
a properly completed grievance to the appropriate staff member, who must respond within
7 days. (Id.)
After the staff member responds, the grievance coordinator forwards the grievance
to the “reviewing authority,” usually the deputy warden, who reviews the prisoner’s
complaint and the staff member’s response and issues its own response. (Id.)
The reviewing authority must return the completed grievance to the grievance
coordinator within fourteen (14) working days. Id. The grievance coordinator files the
original form and returns a copy to the offender with the responses of the assigned staff
and the reviewing authority. (Id.)
If the prisoner is dissatisfied with the reviewing authority’s decision, he may then
appeal within 10 days of receiving a response. (Id. at ¶ 14.) When the grievance
coordinator receives an appeal, he or she must log the appeal, and forward it to the
“appellate authority,” which is usually the facility head. (Id. at ¶ 15.) The appellate
authority must draft a response, return it to the grievance coordinator, and the grievance
coordinator must forward the completed appeal within fourteen (14) days. (Id.) At this
point, the administrative process is exhausted. (Id. at ¶ 16.)
2.

Analysis

In support of their Motion, Defendants have submitted two affidavits from Chester
Penn, the Grievance Coordinator at ICC and the custodian of ICC’s grievance records.
(Dkt. 23-2 & 26-1.) Penn states in his first affidavit that he reviewed the grievance
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database for “all grievances submitted to ICC by Michael Sheridan during January 1,
2005 through January 1, 2009.” (Dkt. 23-2, ¶ 19.) Penn further states that he found no
record that Sheridan filed a timely grievance of his claim regarding prison conditions.
Specifically, Penn states:
[T]here is no record in the ICC database that Michael Sheridan ever filed a
timely grievance regarding any of the following claims: (1) insufficient staff
and that the staff was not adequately trained, (2) that a culture existed that
promoted gang and inmate violence, (3) that the detention officers were aware
of the serious risks of and incidents of violence and not only were deliberately
indifferent to them, but promoted the incidents intentionally through customs
and policies in treatment of the inmates.
Id., ¶ 20.
Based on Penn’s affidavit, Defendants argue that Plaintiff failed to exhaust the
proper administrative channels at ICC before filing this lawsuit and that his claims against
the CCA defendants must be dismissed.
Plaintiff responds that ICC has no way of tracking concern forms that are not
responded to, and that he cannot prove that he filled out the proper forms because either
he was not given a copy or any copy that he did have was confiscated and not returned
when he was transferred out of ICC in July 2008.
In his second affidavit, Penn states that even assuming Plaintiff’s statements to be
true, ICC would still have a copy of his concerns or grievances on file in its grievance
log. (Dkt. 26-1, ¶ 12.) Because there is no record of either, Defendants contend the forms
do not exist. Furthermore, Defendants contend that the only grievances that could be at
issue are ones that post-date the two year statute of limitations which applies to a § 1983
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civil rights claim.
Because it implicates the scope of the record at issue, the Court will first address
Defendants’ statute of limitations contention.
a. Legal Standards for Statute of Limitations
In a civil rights case brought under § 1983, the statue of limitations is determined
by the law of the state in which the action arose. Wallace v. Kato, 549 U.S. 384, 387
(2007) (citing Owens v. Okure, 488 U.S. 235, 249-250 (1989); Wilson v. Garcia, 471 U.S.
261, 279-80 (1985)). Section 1983 claims are subject to the state statute of limitations for
personal injury actions because such claims have been found analogous to actions for
injuries to personal rights. Wilson, 471 U.S. at 277 (later overruled only as to claims
brought under the Securities Exchange Act of 1934). In Idaho, the limitations period for
claims alleging personal injury is two years. Idaho Code § 5-219(4).
The rules governing tolling, or suspending, of the statute of limitations are also
provided by state law unless an important federal policy would be undermined. See
Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 464-65 (1975). The Idaho
Supreme Court has determined that “[s]tatutes of limitation in Idaho are not tolled by
judicial construction but rather by the expressed language of the statute.” Wilhelm v.
Frampton, 158 P.3d 310, 312 (Idaho 2007). In other words, outside of certain postconviction matters, equitable tolling is not available to a plaintiff under Idaho law.
Statutory tolling is available only for a person’s minority status or insanity. Idaho Code §
5-230.
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Idaho law does recognize, however, the limited doctrine of “equitable estoppel.”
J.R. Simplot Co., v. Chemetics International, Inc., 887 P.2d 1039, 1041 (Idaho 1994).
Equitable estoppel does not toll a limitations period, but it works in a similar manner to
prevent a party who has falsely represented or concealed a material fact with actual or
constructive knowledge of the truth from pleading and utilizing the statute of limitations
as a bar.1 Id.
Regardless of state law, the limitations period for bringing a civil rights action will
be tolled during the time that an inmate is exhausting his administrative remedies in
prison pursuant to the Prison Litigation Reform Act (“PLRA”). Brown v. Valoff, 422 F.3d
926, 943 (9th Cir. 2005).
While state law determines the relevant statute of limitations and the rules
governing tolling, federal law determines when a claim accrues. Olsen v. Idaho State Bd.
of Medicine, 363 F.3d 916, 926 (9th Cir. 2004). A civil rights claim accrues when the
plaintiff knows or should know of the injury that forms the basis of the cause of action.
See id. (citing Two Rivers v. Lewis, 174 F.3d 987, 991 (9th Cir.1999)). A plaintiff “must
be diligent in discovering the critical facts,” or his claim will be barred if he “should have
known in the exercise of due diligence.” Bibeau v. Pacific Northwest Research
Foundation, 188 F.3d 1105, 1108 (9th Cir.1999).

1

In a related vein, Idaho statute contains a discovery exception for the beginning of a limitations
period for professional malpractice claims “in the case of negligently placed foreign objects and
fraudulent concealment” of facts. Idaho Code § 5-219.

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In this case, Defendants contend that the Court may only consider the claims raised
in Plaintiff’s complaint between July 16, 2008 – the date the statute of limitations expired
based on the filing of his complaint on July 16, 2010 – and July 20, 2008 – the date he
was transferred out of CCA. Defendants have made no motion for judgment based on
the expiration of the statute of limitations or otherwise established that the statute of
limitations has run as a matter of fact and law. They appear to ask the Court to assume
the fact as true.
In view of the current record, the Court may not decide that Plaintiff’s claim is
time barred unless it is clear on the face of the complaint. Von Saher v. Norton Simon
Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir.2010) (“A claim may be
dismissed under Rule 12(b)(6) on the ground that it is barred by the applicable statute of
limitations only when ‘the running of the statute is apparent on the face of the
complaint.’) (quoting Huynh v. Chase Manhattan Bank, 465 F.3d 992, 997 (9th
Cir.2006)). “[W]here the issue of limitations requires determination of when a claim
begins to accrue, the complaint should be dismissed only if the evidence is so clear that
there is no genuine factual issue and the determination can be made as a matter of law.”
Sisseton-Wahpeton Sioux Tribe v. United States, 895 F.2d 588, 591 (9th Cir.1990); In re
Swine Flu Prod. Liab. Litig., 764 F.2d 637, 638 (9th Cir.1985); Lundy v. Union Carbide
Corp., 695 F.2d 394, 397-98 (9th Cir.1982).
It is not clear on the face of Plaintiff’s complaint, or the record, that Plaintiff’s
claim relating to his conditions of confinement is time barred. “In cases where the
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plaintiff alleges ongoing violations, claims outside the limitations period which relate to
claims within the limitations period may nonetheless be actionable under the continuing
violation doctrine.” Jones v. Stieferman, 2011 WL 773430, *3 (E.D. Cal. Feb. 28, 2011).
Where the plaintiff asserts claims resulting from an alleged ongoing policy, the
continuing violation doctrine applies. Id. (citing Gutowsky v. County of Placer, 108 F.3d
256, 259-60 (9th Cir.1997) (Plaintiff alleged “that the widespread policy and practices of
discrimination of which she complains continued every day of her employment, including
days that fall within the limitation period.”)
Plaintiff alleges that from January 8, 2001 to July 21, 2008, he was subjected to
conditions of confinement which posed a serious risk to his personal safety due to the
culture of violence of which the Defendants were deliberately indifferent, that was
promoted by the customs and policies in the treatment of the inmates, and that he
experienced the threat of physical violence daily. (Dkt. 1, ¶ ¶ 7&19.) Plaintiff’s
allegations of continuing violations which relate to his current claim are sufficient enough
that this Court cannot conclude as a matter of law that he fails to state a claim for relief
based on the expiration of a statute of limitations.
b. Plaintiff’s Exhaustion
The Court finds that Defendants have not met their burden to establish that
Plaintiff failed to exhaust his administrative remedies. Wyatt, 315 F.3d at 1119. First,
Plaintiff’s claim goes back to 2001 and Defendants have no grievance record predating
2005 due to the five (5) year retention policy. Accordingly, Defendants have no evidence
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or ability to dispute Plaintiff’s assertion that he did exhaust his administrative remedies
prior to 2005. Second, the ICC grievance policy, which CCA follows, does not require
that any concern forms or any grievance forms deemed to be insufficient by the receiving
prison official be recorded into the grievance log. It is not until a grievance form deemed
to be compliant with all requirements is submitted that the grievance is entered into the
log. Accordingly, there is no mechanism by which Defendants could verify that Plaintiff
did or did not submit a Concern Form that received no response.
The only verification of a Concern Form that received no response would be
Plaintiff’s own copy. The forms are in triplicate, and Plaintiff would have received a
copy of any Concern Form. However, Plaintiff alleges that any copy he would have had
was confiscated when he was transferred out of ICC. Defendants do not dispute this fact
and the record contains corroborating evidence of Plaintiff’s attempts to resolve his issues
directly with the prison without success. (Dkt. 20-1, pp. 22-24.) Finally, what grievance
records Defendants searched is not entirely clear, and Defendants have not provided the
Court with a copy of the grievance log for verification.
Viewing the record in the light most favorable to the non-moving party, the Court
finds that Defendants have not met their burden to prove at this stage that Plaintiff failed
to exhaust his administrative remedies and that his claim must be dismissed. Defendants’
motion is denied.
B.

Non-Compensable Injury
1.

Standard of Review on a Motion for Summary Judgment

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One of the principal purposes of the summary judgment “is to isolate and dispose
of factually unsupported claims ....” Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106
S.Ct. 2548, 91 L.Ed.2d 265 (1986). It is “not a disfavored procedural shortcut,” but is
instead the “principal tool[ ] by which factually insufficient claims or defenses [can] be
isolated and prevented from going to trial with the attendant unwarranted consumption of
public and private resources.” Id. at 327. “[T]he mere existence of some alleged factual
dispute between the parties will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no genuine issue of material fact.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202
(1986).

The evidence must be viewed in the light most favorable to the non-moving party,
id. at 255, and the Court must not make credibility findings. Id. Direct testimony of the
non-movant must be believed, however implausible. Leslie v. Grupo ICA, 198 F.3d 1152,
1159 (9th Cir.1999). On the other hand, the Court is not required to adopt unreasonable
inferences from circumstantial evidence. McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th
Cir.1988).
The Court must be “guided by the substantive evidentiary standards that apply to
the case.” Liberty Lobby, 477 U.S. at 255. If a claim requires clear and convincing
evidence, the issue on summary judgment is whether a reasonable jury could conclude
that clear and convincing evidence supports the claim. Id.
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The moving party bears the initial burden of demonstrating the absence of a
genuine issue of material fact. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir.2001)
(en banc). To carry this burden, the moving party need not introduce any affirmative
evidence (such as affidavits or deposition excerpts) but may simply point out the absence
of evidence to support the nonmoving party's case. Fairbank v. Wunderman Cato
Johnson, 212 F.3d 528, 532 (9th Cir.2000).
This shifts the burden to the non-moving party to produce evidence sufficient to
support a jury verdict in her favor. Id. at 256-57. The non-moving party must go beyond
the pleadings and show “by her affidavits, or by the depositions, answers to
interrogatories, or admissions on file” that a genuine issue of material fact exists. Celotex,
477 U.S. at 324.
The Court has discretion in how it resolves unavailable facts or unsupported facts
on motion for summary judgment and generally may issue any “appropriate order” under
Fed. R. Civ. P. 56(d) & (e).
2.

Discussion

Defendants argue that Plaintiff has failed to allege more than a de minimis injury
which is not recoverable in a § 1983 civil rights claim. 42 U.S.C.§ 1997(e)(e).
Title 42, Section 1997(e)(e) of the United States Code provides
This statute, enacted as part of the Prison Litigation Reform Act, provides that “[n]o
Federal civil action may be brought by a prisoner confined in a jail, prison or other
correctional facility for mental or emotional injury suffered while in custody without a
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prior showing of physical injury.” In Siglar v. Hightower, 112 F.3d 191 (5th Cir. 1997),
the Fifth Circuit Court of Appeals ruled that the physical injury rule required more than a
de minimis injury. 112 F.3d at 193. The prisoner alleged that he suffered a sore, bruised
ear for three days. 112 F.3d at 191. The court found that the injury did not meet the
physical injury requirement and could not support a claim for emotional or mental
suffering. 112 F.3d at 193-94. See also Luong v. Hatt, 979 F.Supp. 481 (D.N.Y. 1997)
(cuts and scratches that lasted for two or three days were insufficient to satisfy physical
injury requirement).

In this case, Plaintiff alleges that his injury is the aggravation of his PTSD. The
Court noted in its Initial Review Order that it was unclear whether Plaintiff alleged more
than a di minimis injury and allowed the claim to go forward. Defendants do not point out
the absence of evidence to support that Plaintiff’s PTSD or symptoms are more than de
minimis or otherwise clarify the record as to the Plaintiff’s condition. As such, the record
is no more clear at this time and the Court again finds that Plaintiff’s allegations are
sufficient to state a claim and/or there are genuine issues of material fact remaining on
this issue at this stage.
For the foregoing reasons, Defendants’ motion is denied.
ORDER
IT IS ORDERED that Defendants’ Motion to Dismiss and/or for Summary
Judgment is DENIED (Dkt. 23). The Court’s Initial Review of Plaintiff’s Amended
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Complaint and Scheduling Order will be forthcoming.

DATED: March 28, 2012

Honorable Edward J. Lodge
U. S. District Judge

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