Pike v. Smith

Filing 28

MEMORANDUM DECISION AND ORDER denying 17 Motion to Dismiss; granting 19 Motion to Amend/Correct; denying 24 Motion to Strike 13 Order, Set Deadlines. On or before October 30, 2012, the parties shall file any motions for summary judgment with accompanying briefs. Signed by Judge Ronald E Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (krb)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

BRETT RANDOLPH PIKE,
Case No. 1:11-cv-00208-REB
Plaintiff,
MEMORANDUM DECISION AND
ORDER

v.
ISCI WARDEN JOHANNA SMITH,
Defendant.

Pending before the Court in this prisoner civil rights matter are Defendant’s
Motion to Dismiss (Dkt. 17), Plaintiff’s Motion for Leave to Amend Complaint (Dkt. 19),
and Defendant’s Motion to Strike (Dkt. 24).
The parties have consented to a United States Magistrate Judge conducting all
proceeding under 28 U.S.C. § 636(c). (Dkt. 14.) The Court finds that the parties have
adequately stated the facts and legal arguments in their briefs and that the decisional
process would not be significantly aided by oral argument. In the interest of avoiding
delay, the Court will decide this matter on the written motions, briefs, and record without
oral argument. D. Idaho L. Civ. R. 7.1.
For the reasons set forth below, Plaintiff’s Motion to Amend will be granted,
Defendant’s Motion to Strike will be denied, and Defendant’s Motion to Dismiss will be
denied.

MEMORANDUM DECISION AND ORDER - 1

BACKGROUND
Plaintiff is a prisoner in the custody of the Idaho Department of Correction
(IDOC), presently incarcerated at South Idaho Correctional Institution. (Dkt. 3, p. 3.)
When he arrived in IDOC custody on December 23, 2010, he was placed in the Reception
and Diagnostic Unit (RDU) at the Idaho State Correctional Institution, where he would
remain for the next six weeks. (Id. at 3-4.)
Plaintiff contends that he was issued only a “thin cotton jumpsuit” and “flimsy
shoes with cracked soles” to wear. (Dkt. 3, p. 3.) In the first week he had to walk outside
for 350 yards three times a day for meals. (Id.) During that time, he was exposed “to rain,
snow, hail, fierce winds, and temperatures well below freezing,” the lowest of which was
5 degrees. (Id.) As a result, Plaintiff experienced “shivering, teeth chattering, and
numbness of extremities.” (Id. at 4.) He alleges that when he and other inmates
complained about the situation, Correctional Officer S. Jenkins told them that “it would
be futile to file a concern form or grievance as the warden [Defendant Johanna Smith]
was aware of the situation.” (Id.)
Plaintiff was issued a jacket on December 30, 2010, and a hat on January 4, 2011,
which ameliorated some of the harsher conditions. (Id.) His “lower body was still
essentially exposed,” however, and his shoes “allowed freezing water to infiltrate and
saturate my socks resulting in pain and numbness.” (Id.) On February 3, 2011, he was
moved into the general population, where he was “issued denim pants and sneakers which
did not leak.” (Id.)
MEMORANDUM DECISION AND ORDER - 2

On May 10, 2011, Plaintiff filed a Prisoner Civil Rights Complaint under 42
U.S.C. § 1983 against Warden Johanna Smith, alleging that she had a “policy of not
providing adequate clothing to RDU inmates,” in violation of the Eighth Amendment.
(Dkt. 3.) The Court reviewed the Complaint and permitted the claim to go forward, but it
denied Plaintiff’s application to proceed in forma pauperis and his request for
appointment of counsel. (Dkt. 7.) Plaintiff has paid the full filing fee, and Jeremiah
Hudson has entered an appearance as Plaintiff’s counsel. (Dkt. 9.)
Defendant Smith has since filed an Answer (Dkt. 11), followed by a Motion to
Dismiss (Dkt. 17). In her Motion, Defendant argues that Plaintiff failed to exhaust the
administrative remedies that were available to him within IDOC before filing his lawsuit.
(Dkt. 17-1, pp. 3-5.) Additionally, Defendant argues Plaintiff’s claim against her in her
official capacity for monetary damages is effectively a claim against the state of Idaho,
which must be dismissed because Idaho is immune from liability under the Eleventh
Amendment. (Id. at 5-7.)
After receiving Defendant’s Motion, Plaintiff requested leave to amend his
Complaint to reflect that he intends to sue Defendant in her individual capacity for
damages as well as in her official capacity for prospective injunctive relief. (Dkt. 19.) He
also submitted an affidavit opposing dismissal, portions of which Defendant seeks to have
stricken from the record as inadmissible hearsay. (Dkt. 24.)
The Court is fully advised in these matters and is now prepared to issue its ruling.

MEMORANDUM DECISION AND ORDER - 3

PLAINTIFF’S MOTION FOR LEAVE TO AMEND
1.

Standard of Law
Rule 15(a) of the Federal Rules of Civil Procedure provides that, after the initial

period for amendments as of right, pleadings may be amended only with the consent of
the opposing party or by leave of court, which shall be given freely “when justice so
requires.” Fed. R. Civ. P. 15(a)(2). In deciding whether to allow an amendment, a court
must assess four factors: bad faith, undue delay, prejudice to the opposing party, and
futility of amendment.” Ditto v. McCurdy, 510 F.3d 1070 (9th Cir. 2007) (citations
omitted). There is a general presumption in favor of granting leave to amend. Eminence
Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). In addition,“a pro se
complaint, however inartfully pleaded, must be held to less stringent standards than
formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007).
2.

Discussion
Plaintiff seeks an order allowing him to file his proposed Amended Complaint

solely to clarify that he is suing Johanna Smith in her official capacity for injunctive relief
and in her individual capacity for monetary relief. (Dtk. 20, p. 2.) In support, he asserts
that “at the time he filed his [pro se] Complaint, Plaintiff was unaware that he would be
barred from seeking monetary relief by failing to add Johanna Smith in her individual
capacity in the caption of his Complaint.” (Id.)
Defendant objects to the Motion, arguing that the proposed amendment is futile
because “there is no nexus between any action or inaction alleged against Defendant and
MEMORANDUM DECISION AND ORDER - 4

any alleged constitutional deprivation sustained by Plaintiff” and because Defendant is
shielded from a claim for monetary damages by the doctrine of qualified immunity. (Dkt.
25, pp. 3-5.) Defendant does not contend that Plaintiff is acting in bad faith, has unduly
delayed proposing the amendment, or that she would be prejudiced. After weighing the
requisite factors and considering the parties’ arguments, the Court finds that the proposed
amendment would not be clearly futile.
Defendant first contends that Plaintiff has not set forth sufficient facts showing that
she participated personally in a constitutional violation, and because there is no
respondeat superior liability under 42 U.S.C. § 1983, Plaintiff has not alleged a claim
against her on which monetary damages may be based. (Dkt. 25, p. 3.) The Court is not
persuaded by this argument.
In his Complaint, together with its attachments, Plaintiff alleges that Defendant
Smith failed to provide RDU inmates with clothing and shoes to shield them against
winter weather between December 2010 and late January 2011. He asserts that when he
complained to correctional officers, they informed him that “the Warden was aware of the
situation” and was unwilling to change it. (Dkt. 3, p. 3.) He further alleges that “Warden
Smith’s policy of not providing adequate clothing to RDU inmates constitutes the
unnecessary and wanton infliction of pain.” (Id. at 4.) In January of 2011, he directed an
offender concern form to the Warden Smith, complaining that “the clothing I have been
provided with is inadequate for the winter weather.” (Dkt. 3-1, p. 6.) As a result,
Plaintiff’s has sufficiently alleged that Defendant participated personally in the
MEMORANDUM DECISION AND ORDER - 5

constitutional injury that he contends he suffered.
Defendant next argues that she is immune from liability on a claim for monetary
damages. Qualified immunity serves to shield government officials “from liability for
civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). In ruling on a qualified immunity defense, a court
should consider two questions. First, “[t]aken in the light most favorable to the party
asserting the injury, do the facts alleged show the officer’s conduct violated a
constitutional right?” Saucier v. Katz, 533 U.S. 194, 201 (2001). Second, if the plaintiff
has alleged a deprivation of a constitutional right, a court “is to ask whether the right was
clearly established.” Id. The Supreme Court has held that a reviewing court may address
whether the right was clearly established before taking up whether a constitutional
violation was shown on the facts of the case before it, if that is the easier path. Pearson v.
Callahan, 555 U.S. 223, 226 (2009). The dispositive inquiry is whether, in the specific
context of the case, “it would be clear to a reasonable officer that his conduct was
unlawful in the situation he confronted.” Saucier, 533 U.S. at 202.
The answer to these questions turns on the nature of Plaintiff’s allegations and his
Eighth Amendment claim. To state a claim of cruel and unusual punishment under the
Eighth Amendment, a plaintiff must show that he is incarcerated “under conditions posing
a substantial risk of serious harm,” or that he has been deprived of “the minimal civilized
measure of life’s necessities.” Farmer v. Brennan, 511 U.S. at 834 (internal citation
MEMORANDUM DECISION AND ORDER - 6

omitted). Basic human needs include food, clothing, shelter, sanitation, medical care, and
personal safety. Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982).
In 1994, the Ninth Circuit held that “[t]he denial of adequate clothing can inflict
pain [in violation of] the Eighth Amendment.” Walker v. Sumner, 14 F.3d 1415, 1421 (9th
Cir. 1994), overruled on other grounds by Sandin v. Connor, 515 U.S. 472 (1995). In
determining whether a deprivation of that nature rises to a constitutional violation, the
“circumstances, nature, and duration of [the] deprivation must be considered. The more
basic the need, the shorter the time it can be withheld” by prison officials. Johnson v.
Lewis, 217 F.3d 726, 731 (9th Cir. 2000) (internal quotation marks and citations omitted).
Modest deprivations of clothing “can also form the objective basis of a violation, but only
if such deprivations are lengthy or ongoing.” Id; see also Balla v. Idaho State Bd. Of
Corrections, 595 F.Supp. 1558, 1566, 1575 (D. Idaho 1984) (finding a constitutional
violation when prison officials did not provide clothing that was sufficient to guard
against Idaho’s winter temperatures).
In the present case, Plaintiff alleges that he was without a jacket for a week in cold
weather and that he was not given unbroken shoes for over a month, which allowed
freezing water to seep through his socks, causing numbness and pain. Plaintiff asserts that
Defendant knew of these conditions and that she refused to change them. These facts, if
true, show that Defendant deprived Plaintiff of the basic human need of adequate clothing
during those periods, and his right to such clothing under the Eighth Amendment was
clearly established long before 2010 and early 2011. The Court finds that Defendant is
MEMORANDUM DECISION AND ORDER - 7

not entitled to qualified immunity based on the facts as alleged, but it expresses no
opinion on the ultimate merit of the allegations.
Based on the foregoing, the Court will grant Plaintiff leave to amend his
Complaint to clarify that he is suing Defendant in her individual capacity for monetary
damages and in her official capacity for prospective injunctive relief.1 Due to this
clarification, Defendant’s argument in her Motion to Dismiss that the Eleventh
Amendment bars a suit against her in her official capacity solely for money damages is
now moot.
Defendant’s additional argument that Plaintiff failed to exhaust his administrative
remedies before filing his Complaint is still an active dispute that must be resolved. The
Court will now address that aspect of Defendant’s Motion.
DEFENDANT’S MOTION TO DISMISS FOR LACK OF EXHAUSTION
1.

Standard of Law
The 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.”

1

It appears that Plaintiff is no longer subject to the clothing “policy” about which he has
complained while he was detained in the RDU, and it is unclear whether he might be subjected to the
same policy in the future. It is therefore possible that his request for prospective injunctive relief – to
compel “Warden Smith to comply with its 1984 order to provide ISCI inmates with adequate clothing”
(Dkt. 3, p. 7) – is now moot because such relief would not apply to him, but the Court is unable to resolve
that issue on the current record and briefing.
MEMORANDUM DECISION AND ORDER - 8

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). “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 proper
exhaustion.” Jones, 549 U.S. at 218.
By its plain terms, 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 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). In
addition,“improper screening of an inmate’s administrative grievances renders

administrative remedies ‘effectively unavailable’ such that exhaustion is not required
MEMORANDUM DECISION AND ORDER - 9

under the PLRA.” Sapp v. Kimbrell, 623 F.3d 813, 823 (9th Cir. 2010).
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 that the
plaintiff failed to exhaust, and the reviewing court may look beyond the pleadings to
resolve disputed issues of fact, if necessary. Id.
2.

The Idaho Department of Correction’s Exhaustion Procedure
The IDOC uses a three-step grievance process that requires a prisoner to first

submit an informal offender concern form describing the problem, then file a formal
grievance form, and finally complete the process with an appeal of any adverse decision.
(Dkt. 17-3, Affidavit of Jill Whittington, ¶ 4.)
The prisoner begins this process by routing the offender concern form to the staff
member most capable of addressing the problem. (Dkt. 17-3, ¶ 5.) If the issue is not
resolved, the prisoner then completes a grievance form and files the grievance within 30
days of the “incident.” (Id. at ¶ 6.) The grievance must contain specific information
regarding the nature of the complaint, including dates, places, names, and how the
offender has been adversely affected. (Id. at ¶ 7.)
If the grievance is properly completed, the “Grievance Coordinator” will route it to
the appropriate staff member, who must respond within 10 days. (Dkt. 17-3, ¶ 7.) After
the staff member responds, the Grievance Coordinator forwards the grievance to the
MEMORANDUM DECISION AND ORDER - 10

“reviewing authority,” usually the deputy warden, who reviews the prisoner’s complaint
and the staff member’s response and issues a decision. (Id.) If the prisoner is dissatisfied
with the reviewing authority’s decision, he may then appeal within 5 days to the
“appellate authority,” which is usually the facility head. (Id. at ¶ 8.)
Once the appellate authority has issued its decision, the grievance is then routed
back to the inmate, thus concluding the administrative review process. (Id. at ¶¶ 9-10.)
3.

Discussion
Defendant contends that although Plaintiff submitted offender concern form on

January 12, 2011, he did not file a formal grievance until February 21, 2011, which is
beyond the 30-day deadline. Because the Grievance Coordinator returned the grievance to
him unprocessed, according to Defendant, Plaintiff did not complete all three steps in
IDOC’s grievance procedure in an appropriate manner before he filed his lawsuit.
Plaintiff counters that he complained verbally to Correctional Officer Jenkins
about the lack of winter clothing not long after he arrived at RDU, and Jenkins told him
that it would be futile to file a grievance “as the Warden was aware of the situation.”
(Amended Complaint, Dkt. 19-1, p. 3.) Despite this, Plaintiff asserts that he routed his
offender concern form within a matter of days, and when it was denied, he asked Jenkins
what he should do to appeal it. (Dkt. 21, p. 2.) Plaintiff has submitted an affidavit in this
proceeding in which he contends that Jenkins then refused to provide a grievance form to
him, telling him instead “that there is nothing more he could do.” (Dkt. 22, Affidavit of
Brett Randolph Pike (“Pike Aff.”), ¶ 4.) Plaintiff alleges that he did not have access to a
MEMORANDUM DECISION AND ORDER - 11

grievance form until after he went to the general population on February 3, 2011. (Pike
Aff. at ¶ 6.) He further contends that a Corporal Lum told him that a grievance “needed to
be filed in 30 business days,” rather than 30 calendar days. (Id. at ¶ 8.) Plaintiff filed his
grievance on February 21, and when that grievance was not processed, he filed an appeal.
(Id. at ¶ 9.) He also filed two more appeals between March 18 and March 31. (Id. at ¶ 10.)
Based on this proffer, Plaintiff contends that, contrary to Defendant’s argument, he
actually exhausted his administrative remedies in a timely fashion because he was
subjected to unconstitutional conditions in the RDU until February 3, 2011, and his
February 21 grievance was filed within 30 days of the end of the “incident” about which
was complaining. Under this theory, the Grievance Coordinator improperly screened his
grievance as untimely. Plaintiff also argues, in the alternative, that his access to IDOC’s
grievance procedure was hindered by vague standards and misleading information from
correctional officers, and that any administrative remedy that was theoretically available
to him was not available as a practical matter. The Court will accept, for these purposes,
Plaintiff’s alternative argument, though his first argument also has some bearing on the
Court’s decision, as will be explained below.
As an initial matter, the Court is unpersuaded by Defendant’s contention that the
Court must exclude from record, on hearsay grounds, those portions of Plaintiff’s
Affidavit that recite what Officer Jenkins and Corporal Lum allegedly told him about the
availability of the grievance process. Under Rule 801 of the Federal Rules of Evidence,
“hearsay” is defined as a statement that a declarant has made outside of testifying in court
MEMORANDUM DECISION AND ORDER - 12

that “a party offers in evidence to prove the truth of the matter asserted in the statement.”
Fed. R. Evid. 801(c)(2). A statement that is offered to show only its effect on the listener
is not offered to prove the truth of the statement and is “properly considered as nonhearsay.” See, e.g., United States v. Payne, 944 F.2d 1458, 1472 (9th Cir. 1991).
Here, Plaintiff is not offering Officer Jenkins’s statement “that there is nothing
more he could do” to prove that there was, in fact, nothing more that could be done. To
the contrary, Defendant argues that IDOC did have an administrative review process that
Plaintiff did not use properly; therefore, Plaintiff is offering Jenkins’s statement to show
why he did not begin that process immediately.
This is equally true of Corporal Lum’s alleged statement that a grievance could be
filed within 30 business days. Plaintiff is offering Lum’s statement to show why Plaintiff
believed that he may have had a longer amount of time than IDOC rules allowed,
irrespective of whether Lum’s statement is actually true or false. In short, these statements
are offered to explain the effect they had on Plaintiff and to explain his subsequent
actions. The credibility and weight to be assigned to this evidence is a separate question
from its admissibility.
The Court further finds that, based on the record before it, Plaintiff has made a
sufficient showing that he was given misleading advice and hindered from completing
IDOC’s administrative remedy, a showing that is not called into question by
countervailing evidence from Defendant. Ordinarily, the Court would be skeptical of a
prisoner’s claims that correctional officers thwarted his access to the grievance procedure.
MEMORANDUM DECISION AND ORDER - 13

Such claims are easy to make and difficult to disprove. But Plaintiff’s allegations are
supported, at least to an extent, by the contemporaneous record that was created closer in
time to when the statements were allegedly made.
In particular, in Plaintiff’s February 21, 2011 grievance, he notes that “C/O
Jenkins refused to provide me with a grievance form and told me there was nothing more
I could do.” (Dkt. 22, p. 9.) In his March 9 grievance, he contends that “Cpl. Lum
informed me that the time limits were business days.” (Id. at p. 10.) In his March 18
grievance, he reiterates that he was “assured by Cpl. Lum that the deadlines in the
grievance procedure refer to business days not calendar days.” (Id., Exhibit E.) Finally, on
March 28, he asserted that “it is unreasonable to expect a new inmate to have better or
more accurate information about the grievance procedure than CO’s who presumably
receive training in how to handle grievances. As stated earlier the response to my first
OCF was delivered 11 days after it was dated & at that time C/O Jenkins informed me
that there was nothing more I could do.” (Id., Exhibit E, at p. 14.)
Though not dispositive, this documentation lends corroborating support to
Plaintiff’s current claims. On the other side of the balance, Defendant has come forward
with no evidence that contradicts Plaintiff’s statements about what correctional officers
said or did, such as affidavits or declarations from the officers themselves, and it is
Defendant’s burden to prove that dismissal is warranted based on a failure to exhaust
administrative remedies. See Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2002).
Moreover, an ambiguity in IDOC regulations as to which “incident” triggers the
MEMORANDUM DECISION AND ORDER - 14

30-day timeline for filing a formal grievance adds to the confusion. The Grievance
Coordinator has testified in an affidavit that a grievance form “is required to be filed
within thirty (30) days of the incident that is the basis for the grievance.” (Whittington
Aff., at ¶ 6.) This comports with IDOC’s written regulation, which states that
“[g]rievances must be submitted within 30 days of the incident.” (Dkt. 17-5, p. 5.) For a
one-time, short lived event, determining when the “incident” started the running of the
30-day clock should pose no difficulty. Here, in contrast, Plaintiff asserts that he was
exposed to unconstitutional conditions the entire time that he was in the RDU, until
February 3, 2011, and the “incident that is the basis for the grievance” did not end until
that date, meaning that he should have had 30 days from February 3 in which to file his
grievance. According to Plaintiff, the February 21 grievance was timely pursuant the
IDOC’s own rules.
This argument has some logical force behind it. Much like any fair statute of
limitations, the deadline for filing a grievance should not expire at least until the prisoner
has been given a reasonable amount of time after the “incident” has actually concluded to
begin the process. But cutting against Plaintiff’s position on these facts is that he did not
state in his February 21 grievance that he was exposed to these conditions until February
3, to alert the Grievance Coordinator that his complaint may have been timely. It was his
burden to include the dates of the incident about which he was complaining, see
Whittington Aff., at ¶ 7, and the Court cannot conclude that the Grievance Coordinator
improperly dismissed his grievance. Cf. Sapp v. Kimbrell, 623 F.3d 813, 823 (9th Cir.
MEMORANDUM DECISION AND ORDER - 15

2010) (holding that improper screening of an inmate’s administrative grievances excuses
the failure to complete the process). In any event, the closeness of this issue supports
Plaintiff’s more general argument that to the extent he did not comply perfectly, his
failure to do so should be excused.
The facts of this case fall in line with the Ninth Circuit’s decision in Nuñez v.
Duncan, 591 F.3d 1217, 1226 (9th Cir. 2010). There, a prisoner began the internal
administrative review process by routing an informal complaint in which he claimed that
he had been subjected to an unconstitutional strip search. Id. at 1220. A prison official
denied the complaint on the ground that a written prison policy allowed the search. Id.
When the prisoner then sought a copy of the policy so that he could challenge it, the
Warden gave him only a citation, which was incorrect, and “the mistake led [the prisoner]
on an almost ten-month wild goose chase.” Id. at 1226. Eventually, he filed a final level
appeal challenging the search, but it was denied as untimely. Id. at 1221.
The Ninth Circuit held that while the prisoner may not have exhausted the prison’s
administrative review process in accordance with the prison’s rules, the administrative
remedy was “effectively unavailable” to the prisoner. Nuñez, 591 F.3d at 1224. Integral to
that decision was the Ninth Circuit’s finding that the prisoner “took reasonable and
appropriate steps to exhaust his . . . claim and was precluded from exhausting not through
his own fault but by the Warden’s mistake.” Id.
As in Nuñez, Plaintiff has alleged facts with supporting evidence tending to show
that IDOC’s administrative grievance procedure was “effectively unavailable” to him.
MEMORANDUM DECISION AND ORDER - 16

Even though he apparently did not complete the process in a timely manner, like the
prisoner in Nuñez he took reasonable and appropriate steps to alert prison officials of the
problem. He verbally complained to Officer Jenkins, and while it appears that he was
dissuaded from proceeding beyond an offender concern form and was given misleading
or incorrect advice about deadlines, he nonetheless pressed the issue several times in
grievances and appeals in the weeks that followed. In other words, he gave prison
officials an opportunity to address the problem before he sued the Warden.
For all of these reasons, Plaintiff’s failure to exhaust IDOC’s grievance procedure
properly is excused, and Defendant’s Motion to Dismiss based on a failure to exhaust
administrative remedies will be denied. Because the deadline for filing motions for
summary judgment expired while Defendant’s Motion to Dismiss was pending, the Court
will reset that deadline, and the parties shall adhere to the scheduling order to follow.
ORDER
IT IS ORDERED:
1.

Plaintiff’s Motion for Leave to Amend (Dkt. 19) is GRANTED. To
maintain clarity in the record, Plaintiff shall re-file his Amended Complaint
forthwith, which is currently lodged as an exhibit to the Motion for Leave to
Amend (Dkt. 19-1).

2.

Defendant’s Motion to Strike (Dkt. 24) is DENIED.

3.

Defendant’s Motion to Dismiss (Dkt. 17) is DENIED.

4.

The Court’s previous Scheduling Order (Dkt. 13) is modified as follows.

MEMORANDUM DECISION AND ORDER - 17

On or before October 30, 2012, the parties shall file any motions for
summary judgment with accompanying briefs. All motions, responses, and
replies shall conform to Rule 7.1 of the Local Rules for the District of
Idaho. Should Plaintiff or Defendant wish to attend a settlement conference,
they should file a stipulation to attend a settlement conference and contact
the Court’s ADR Director, Susie Boring-Headlee.
DATED: September 17, 2012

Honorable Ronald E. Bush
U. S. Magistrate Judge

MEMORANDUM DECISION AND ORDER - 18