Abbott v. Fisher et al

Filing 35

MEMORANDUM DECISION AND ORDER denying 30 Motion to Strike; granting 31 Motion to Strike; granting 32 Motion to Commence Pleadings; finding as moot 33 Motion to Compel; finding as moot 18 Motion for Preliminary Injunction; granting 21 Mot ion for Extension of Time to File; granting 23 Defendant's Motion to Dismiss; denying 28 Motion to Strike. 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

DENNIS E. ABBOTT,
Plaintiff,

Case No. 1:11-cv-00571-BLW
MEMORANDUM DECISION AND
ORDER

vs.
SHELL FISHER, BRENT REINKE,
JOHANNA SMITH, KAREN
BARRETT, JAY NIELSEN, ROBIN
SANDY, and J.R. VanTASSEL JR.,
Defendants.

Pending before the Court in this prisoner civil rights case are the following
motions: (1) Plaintiff’s Motion for Preliminary Injunction (TRO) (Dkt. 18); (2)
Defendants’ Motion for Extension of Time to File Motion to Dismiss (Dkt. 21); (3)
Defendants’ Motion to Dismiss (Dkt. 23); (4) Plaintiff’s Objection to Defendants’ Motion
to Dismiss and Motion to Strike Thereof (Dkt. 28); (5) Plaintiff’s Motion to Strike
Defendants’ Reply Memorandum in Support of Motion to Dismiss (Dkt. 30); (6)
Defendants’ Motion to Strike Plaintiff’s Motion to Strike Defendants’ Reply
Memorandum in Support of Motion to Dismiss and the Supporting Affidavit of Dennis E.
Abbott (Dkt. 31); (7) Plaintiff’s Motion to Commence Pleadings (Dkt. 32); and (8)
MEMORANDUM DECISION AND ORDER - 1

Plaintiff’s Motion to Compel Discovery (Dkt. 33). Having reviewed the written
arguments of the parties, as well as the record in this case, the Court has determined that
oral argument is unnecessary, and therefore enters the following Order.
BACKGROUND
Plaintiff is an inmate in the custody of the Idaho Department of Correction (IDOC)
and is currently incarcerated at the Idaho State Correctional Institution (ISCI). On
November 17, 2011, Plaintiff filed a Complaint alleging that defendants IDOC, Corizon
Medical Services, Idaho Department of Health & Welfare, the Board of Corrections and
several prison officials have failed to provide him with adequate mental health treatment
since his re-incarceration in May 2011. (Dkt. 3.)
In the Complaint, Plaintiff alleges that he has suffered from schizophrenia and
schizoaffective disorder for most of his life, and as a result, has taken psychotropic
medications since age 12. (Id. at p.3.) Plaintiff further alleges that he has been in the
custody of IDOC for over 25 years and although he was recently paroled, he was arrested
in May 2011 for a parole violation and taken back into custody. (Id. at pp.3-4.) Plaintiff
contends that since his re-incarceration in May 2011, he has been denied proper
psychological and psychiatric care for his mental health conditions. (Id. at pp.4-8.)
On April 23, 2012, the Court entered its Initial Review Order and found that
Plaintiff could proceed against only Defendants Shell Fisher and Johanna Smith on an
Eighth Amendment claim for failure to provide any mental health treatment since May
2011. (Dkt. 9, p. 7.) The Court also permitted Plaintiff to submit a motion to amend the
MEMORANDUM DECISION AND ORDER - 2

Complaint if he had further allegations of participation or policy-based claims against the
private entities. (Id. at 4.) Thereafter, Plaintiff filed a Motion to Amend Complaint on
May 31, 2012 (Dkt. 15), which the Court granted and thereby permitted Plaintiff to also
proceed against Defendant Karen Barrett (in addition to Defendants Fisher and Smith),
but not against any of the remaining Defendants. (Dkt. 19.)1
Plaintiff then filed a Motion for Preliminary Injunction (TRO) on June 28, 2012,
“to ensure that he receives proper medical care” and requested that he be moved out of
the general population at ISCI and assigned to the prison’s behavioral health unit “or
other mental health facility comparable to Plaintiff’s mental health care and needs.” (Dkt.
18-1.) Defendants filed a response arguing that Plaintiff fails to meet the standards for
injunctive relief. (Dkt. 20.)
By the terms of this Court’s Order dated July 3, 2012 (Dkt. 19), Defendants had
until August 3, 2012, to file an answer or motion to dismiss. On August 3, 2012,
Defendants filed a Motion for Extension of Time to File Motion to Dismiss and requested
a one week extension in which to file their Motion to Dismiss. (Dkt. 21.) On August 7,
2012, Defendants filed their Motion to Dismiss on the basis that Plaintiff has failed to
exhaust his administrative remedies. (Dkt. 23.) Plaintiff filed an Objection to Defendants’
Motion to Dismiss and Motion to Strike Thereof (Dkts. 27, 28) and argues that the

1

To date, Defendants Fisher and Smith are the only defendants who have appeared in this action.

MEMORANDUM DECISION AND ORDER - 3

Motion to Dismiss should be stricken because it is without merit and in bad faith.2
On September 20, 2012, Plaintiff filed another Motion to Strike (along with a
supporting Affidavit and exhibits), this time seeking to strike Defendants’ Reply
Memorandum in Support of Motion to Dismiss. (Dkt. 30.) Plaintiff asserts that
Defendants should have sought leave of the Court to file the Reply Memorandum (which
they did not do), and that the Reply Memorandum contains misleading facts and
information. In response, Defendants filed a Motion to Strike Plaintiff’s Motion to Strike
Defendants’ Reply Memorandum in Support of Motion to Dismiss and the Supporting
Affidavit of Dennis E. Abbott, contending that Plaintiff’s Motion and the Supporting
Affidavit is an attempt to file a pleading not allowed by the Federal and Local Rules.
(Dkt. 31.)
Finally, on November 29, 2012, Plaintiff filed a Motion to Commence Pleadings
(Dkt. 32), and a Motion to Compel Discovery. (Dkt. 33.) Defendants filed a response to
the Motion to Compel Discovery, and argue that discovery in this case is stayed pending
the Court’s ruling on Defendants’ Motion to Dismiss. (Dkt. 34.)
Because Defendants’ Motion to Dismiss asserts an affirmative defense that could
result in this action being dismissed in its entirety, the Court will first address the Motions
that must be determined preliminary to the Motion to Dismiss, then the Motion to
Dismiss, and then the remaining pending Motions.

2

Plaintiff filed the same pleading twice, as Docket Numbers 27 and 28. The court's ruling on
Docket 28 will have the same force and effect on the duplicate pleading Docket 27.
MEMORANDUM DECISION AND ORDER - 4

REVIEW OF PENDING MOTIONS
1.

Defendants’ Motion for Extension of Time to File Motion to Dismiss (Dkt.
21); Plaintiff’s Objection to Defendants’ Motion to Dismiss and Motion to
Strike Thereof (Dkt. 28); Plaintiff’s Motion to Strike Defendants’ Reply
Memorandum in Support of Motion to Dismiss (Dkt. 30); Defendants’ Motion
to Strike Plaintiff’s Motion to Strike Defendants’ Reply Memorandum in
Support of Motion to Dismiss and the Supporting Affidavit of Dennis E.
Abbott (Dkt. 31)
Prior to addressing Defendants' Motion to Dismiss, the Court must first resolve

several procedural Motions related to the Motion to Dismiss.
A.

Defendants' Motion for Extension of Time to File Motion to Dismiss

On August 3, 2012, Defendants timely filed a Motion for Extension of Time to
File Motion to Dismiss. (Dkt. 21.) Good cause appearing, the Court will grant
Defendants’ Motion for Extension of Time.
B.

Plaintiff's Objection to Defendants' Motion to Dismiss and Motion to
Strike Thereof

After Defendants filed their Motion to Dismiss on August 7, 2012, Plaintiff filed
an Objection to Defendants’ Motion to Dismiss and Motion to Strike Thereof. (Dkt. 28.)
As to the Motion to Strike portion of Plaintiff’s pleading, a court may grant a motion to
strike pursuant to Federal Rule 12(f) if the contested language constitutes an “insufficient
defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ.
Proc. 12(f). However, federal courts generally disfavor motions to strike. Bogazici Hava
Tasimaciligi A.S. v. McDonnell Douglas, 932 F.2d 972 (9th Cir. 1991) (unpublished table
opinion); Colaprico v. Sun Microsystems, Inc., 758 F.Supp. 1335, 1339 (N.D. Cal. 1991)

MEMORANDUM DECISION AND ORDER - 5

(“[M]otions to strike should not be granted unless it is clear that the matter to be stricken
could have no possible bearing on the subject matter of the litigation.”). In addition, a
court must view the pleading under attack in the light most favorable to the pleader,
Cardinale v. La Petite Academy, Inc., 207 F.Supp.2d 1158, 1162 (D. Nev. 2002), and be
mindful of the function of a 12(f) motion to strike – “to avoid the expenditure of time and
money that must arise from litigating spurious issues by dispensing with those issues prior
to trial.” Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983).
In this instance, Plaintiff makes no specific reference to which portions of
Defendants’ Motion to Dismiss should be stricken, nor does he specify the basis for the
strike – that some or all of the contents of the Motion to Dismiss constitute an
“insufficient defense”, or are “redundant, immaterial, impertinent, or scandalous.” See
Fed. R. Civ. Proc. 12(f). Instead, Plaintiff summarily asserts that the Court should strike
Defendants’ Motion to Dismiss for being “without true merit and [in] bad faith.” (Dkt. 28,
p.4.)
Defendants’ Motion to Dismiss, however, raises a timely, affirmative defense that
Plaintiff has failed to exhaust his administrative remedies. Such a defense, whether
successful or not, clearly has a bearing on the subject matter of this litigation, and is an
appropriate defense to raise at this stage in the proceedings. Accordingly, Plaintiff’s
Motion to Strike Defendants’ Motion to Dismiss (Dkt. 28) will be denied. The Court will
treat Plaintiff’s Objection to Defendants’ Motion to Dismiss and Motion to Strike Thereof
as a Response to Defendants’ Motion to Dismiss pursuant to the Initial Review Order
MEMORANDUM DECISION AND ORDER - 6

(Dkt. 9) and Local Civil Rule 7.1(c)(1).
C.

Plaintiff’s Motion to Strike Defendants’ Reply Memorandum in Support
of Motion to Dismiss (Dkt. 30); Defendants’ Motion to Strike Plaintiff’s
Motion to Strike Defendants’ Reply Memorandum in Support of Motion
to Dismiss and the Supporting Affidavit of Dennis E. Abbott (Dkt. 31)

After Plaintiff filed his Objection to Defendants’ Motion to Dismiss and Motion to
Strike Thereof, Defendants filed their Reply Memorandum in Support of Motion to
Dismiss. (Dkt. 29.) Two weeks later, Plaintiff filed a Motion to Strike Defendants’ Reply
Memorandum in Support of Motion to Dismiss. (Dkt. 30.) In that Motion, Plaintiff argues
that Defendants’ Reply Memorandum constitutes a “traverse memorandum” which
requires leave of the Court to file. Plaintiff also makes additional substantive arguments
opposing Defendants’ Motion to Dismiss (Dkt. 30, pp.2-6), and submits another Affidavit
and exhibits in support thereof. (Dkts. 30-1, 30-2, 30-3.)
Defendants responded by filing a cross Motion to Strike Plaintiff’s “Motion to
Strike Defendants’ Reply Memorandum in Support of Motion to Dismiss” and the
Supporting “Affidavit to [sic] Dennis E. Abbott.” (Dkt. 31.) Defendants argue that
Plaintiff’s Motion to Strike is procedurally improper. The Court agrees. Pursuant to Local
Civil Rule 7.1, once a moving party has filed a motion, the responding party shall serve
and file a “response brief” within 21 days after service of the moving party’s motion.
Dist. Idaho Loc. Civ. R. 7.1(c)(1). Once the response brief has been served upon the
moving party, the moving party may submit a “reply brief” within 14 days of such
service. Id. at 7.1(b)(3). No other motion practice briefing is specified or allowed by the

MEMORANDUM DECISION AND ORDER - 7

Local Civil Rules.
Here, Defendants timely and properly filed their Reply Memorandum pursuant to
Local Civil rule 7.1(b)(3); they were not required to seek leave of the Court to do so. In
contrast, the Court concludes that Plaintiff’s additional substantive arguments opposing
Defendants’ Motion to Dismiss and his supporting Affidavit and exhibits do constitute
supplemental briefing not permitted by the Local Civil Rules, and not allowed without
prior, written leave of the Court. Accordingly, Plaintiff’s Motion to Strike Defendants’
Reply Memorandum in Support of Motion to Dismiss (Dkt. 30) will be denied, and
Defendants’ Motion to Strike Plaintiff’s “Motion to Strike Defendants’ Reply
Memorandum in Support of Motion to Dismiss” and the Supporting “Affidavit to [sic]
Dennis E. Abbott” (Dkt. 31) will be granted.
2.

Defendants’ Motion to Dismiss (Dkt. 23)
Pursuant to Federal Rule of Civil Procedure 12(b), Defendants have filed a Motion

to Dismiss on the basis that Plaintiff failed to exhaust his administrative remedies prior to
filing his lawsuit. For the reasons set forth below, the Court will grant Defendants’
Motion to Dismiss.
A.

Standard of Law

Pursuant to the Prison Litigation Reform Act of 1995 (PLRA),3 a prisoner is
required to exhaust all of his administrative remedies within the prison system before he

3

110 Stat. 1321-71, as amended, 42 U.S.C. § 1997e, et seq.

MEMORANDUM DECISION AND ORDER - 8

can bring a civil rights lawsuit challenging the conditions of his confinement. 42 U.S.C. §
1997e(a). “Proper” exhaustion of administrative remedies 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).4 “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). The Jones v. Bock Court noted the
important policy concern behind requiring exhaustion is that it “allows prison officials an
opportunity to resolve disputes concerning the exercise of their responsibilities before
being haled into court.” Id. at 204.
Where there is an “informal[]” and “relative[ly] simpl[e]” prison grievance system,
prisoners must take advantage of it before filing a civil rights complaint. Woodford v.
Ngo, 548 U.S. at 103. In Woodford v. Ngo, the prisoner had filed his grievance within six
months of the incident at issue, rather than within fifteen days as required by the
California Prison grievance system. Id. at 2383-84. The Supreme Court rejected the
Ninth Circuit’s determination that the prisoner “had exhausted administrative remedies
simply because no such remedies remained available to him.” Id. at 2384.
Failure to exhaust remedies is an affirmative defense that should be brought as an

4

Cf. Jones v. Stewart, 457 F.Supp. 2d 1131, 1136-37 (D. Nev. 2006) (if, at every level of
administrative review available, prison officials review the merits of a grievance that does not meet the
applicable procedural rules, such as timeliness, the prisoner has satisfied the administrative exhaustion
requirement of Woodford v. Ngo).
MEMORANDUM DECISION AND ORDER - 9

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. Defendants bear
the burden of proving failure to exhaust. Brown v. Valoff, 422 F.3d 926 (9th Cir. 2005).
B.

Discussion

The IDOC has a relatively simple grievance procedure. The inmate first submits an
offender concern form, then a grievance form if informal resolution cannot be
accomplished, and finally an appeal of the response to the grievance. See Whittington Aff.
(Dkt. 23-3, p.2); IDOC Division of Operations Directive 316.02.01.001 (Dkt. 23-3, pp.820.) An offender must complete all three steps in order to exhaust the administrative
grievance process. (Dkt. 23-3, p.2.)
The first step in the inmate grievance process begins with the inmate addressing an
Offender Concern Form to the staff member most capable of responding to and, if
appropriate, resolving the issue. (Id.) The staff member should respond within seven days
of receipt of the Offender Concern Form. The concern form is in triplicate and the yellow
copy is returned to the offender with the staff response. (Id.)
If the issue is not resolved in the first step, the offender may then proceed to the
second step and file a Grievance Form within 30 days of the incident or problem that is
the basis for the grievance (unless the reviewing authority grants an extension of time).
(Id.) The Grievance Form must comply with the following requirements: (1) the yellow
copy of the Offender Concern Form with the staff member’s response must be attached to
MEMORANDUM DECISION AND ORDER - 10

the Grievance Form; (2) the Grievance Form must be handwritten (photocopies are not
allowed); (3) the Grievance Form must contain specific information including the nature
of the complaint, dates, places, and names; and (4) the offender must suggest a solution to
the issue and can only raise one issue per grievance. (Id. at 3.) If the Grievance Form is
completed incorrectly, it is returned to the offender (with all attachments) using a
Grievance/Disciplinary Offense Report (DOR) Transmittal Form. (Id.) The Grievance
Coordinator returns everything to the offender and does not keep a copy of the incomplete
grievance (or any of the attachments).
If the Grievance Form is filled out correctly, the Grievance Coordinator enters the
grievance information into the Corrections Integrated System (CIS) electronic database
and assigns it to the staff member most appropriate to respond to, and resolve, the
grievance. (Id.) The staff member’s response is then sent to the Grievance Coordinator
who logs the information into the CIS database, and that information is then forwarded to
a “reviewing authority,” who is usually a deputy warden. (Id.) The reviewing authority
must review the grievance, the staff member’s response, and deny, modify or grant the
offender’s suggested solution. (Id.) The reviewing authority then returns the grievance to
the Grievance Coordinator, who logs the reviewing authority’s response in the CIS
database and forwards a printed copy of the response, along with the original grievance
paperwork, to the offender via institutional mail. (Id. at pp.3-4.) A copy of the original
Grievance Form and any attachments are filed in the facility administration area. (Id. at
4.)
MEMORANDUM DECISION AND ORDER - 11

If the offender is not satisfied with the reviewing authority’s response to his
grievance, he may proceed to the third step by filing an appeal. (Id.) Once the Grievance
Coordinator receives the appeal, it is entered into the CIS database and is forwarded to the
“appellate authority,” who is typically the facility head. (Id.)5 The appellate authority
must respond within 14 days of receipt of the appeal and notify the Grievance
Coordinator that the appeal has been completed. The Grievance Coordinator logs the
completion date in the CIS database, forwards a printed copy of the grievance and the
offender’s original attachments to the offender, and files a copy of the printed grievance,
the original Grievance/Appeal form, and all attachments in the facility administration
area. (Id.) Upon completion of all three steps, the offender grievance process is
exhausted. (Id.)
Here, Defendants contend that during the time period at issue – August 4, 2011 to
November 17, 20116 – Plaintiff filed four grievances, all of which were returned
unprocessed to Plaintiff because of his failure to follow one or more of the steps of the
IDOC grievance procedure. Defendants submit the following evidence in support of the
four grievances at issue: (1) Plaintiff filed a Grievance Form on or about August 22,
2011, which the Grievance Coordinator did not process because no concern form was

5

At ISCI, the appellate authority is the Warden, except for medical grievances, in which case the
appellate authority is the contract medical provider. (Dkt. 23-3, p.4.)
6

Although Plaintiff’s Complaint alleges a denial of mental health treatment since his
reincarceration in May 2011, Plaintiff’s offender tracking sheet indicates that Plaintiff was not imprisoned
at ISCI until August 4, 2011. (Dkt. 23-2, p.4.)
MEMORANDUM DECISION AND ORDER - 12

attached, nor was any specific information provided in the grievance as required by IDOC
policy. (Dkt. 23-3, p.5.) Defendants’ CIS database record and a copy of the
Grievance/DOR Transmittal Form sent back to Plaintiff summarize these errors.(Dkt. 233, pp. 25-27); (2) Plaintiff filed a second grievance on or about September 7, 2011, which
the Grievance Coordinator did not process because Plaintiff did not send his concern form
to the staff member most capable of responding to the issue – in this instance, to medical
staff. The Grievance Coordinator noted that Plaintiff should send his concern form to
medical staff, as required by IDOC policy. (Dkt. 23-3, p. 5.) Defendants' CIS database
record and a copy of the Grievance/DOR Transmittal Form sent back to Plaintiff
summarize these errors. (Dkt. 23-3, pp. 28-30); (3) Plaintiff filed his third Grievance
Form on or about October 4, 2011, which the Grievance Coordinator again did not
process because of a number of errors – Plaintiff did not send the underlying concern
form to medical staff, who is the staff most appropriate to respond to his issue, he did not
offer a relevant solution to the problem, and he did not sign the Grievance Form. (Dkt.
23-3, p. 6.) Defendants' CIS database record and a copy of the Grievance/DOR
Transmittal Form sent back to Plaintiff summarize these errors. (Dkt. 23-3, pp. 31-33); (4)
Plaintiff filed a fourth Grievance Form on or about November 8, 2011, which the
Grievance Coordinator did not process because Plaintiff attached an altered photocopy of
his Offender Concern Form, instead of the yellow copy of the original concern form
showing the staff response. (Dkt. 23-3, p. 6.) Defendants' CIS database record and a copy
of the Grievance/DOR Transmittal Form sent back to Plaintiff summarize this error. (Dkt.
MEMORANDUM DECISION AND ORDER - 13

23-3, pp. 34-35; Dkt. 27-2, p.13.)
In sum, Defendants have submitted the Grievance Coordinator's Affidavit wherein
she explains the IDOC grievance policy (a copy of which is attached to her Affidavit) as
well as the reasons for Plaintiff's unprocessed grievances. Defendants have also provided
copies of all the records maintained by ISCI regarding Plaintiff's unprocessed grievances.
In Plaintiff’s Response, he argues that the Grievance Coordinator should not have
rejected his grievances four times on mere technicalities.7 The reasons he gives for failure
to comply strictly with the grievance procedures are that he is “acutely mentally
psychotic,” he could not “conform to the proper means of procedures” and did not
possess “the mental integrity to understand the grievance process.” (Dkt. 27, p.1.) The
Court finds Plaintiff’s argument unpersuasive and unsupported by the evidence in the
record. Plaintiff's only attempt to submit "evidence" is his own Affidavit wherein he
attests “I state that I am mentally ill, and have been all my life.” (Dkt. 28-1, p.1.)
He does not, however, attest that he lacks the capacity to understand the grievance
process. To the contrary, Defendants contend and the Court agrees, that Plaintiff has been
in the custody of IDOC for most of his adult life and has filed or participated in many

7

Plaintiff filed copies of several Offender Concern Forms, Grievances, and Grievance/DOR
Transmittal Forms as exhibits to his Response. Many of these forms were already produced by
Defendants, although Plaintiff did include one additional Grievance/DOR Transmittal Form dated
October 14, 2011 that was not produced or addressed by Defendants. Nonetheless, the Transmittal Form
informs Plaintiff that the underlying Grievance Form is being returned as unprocessed for the same
reasons provided in the September 7, 2011, and October 4, 2011 Transmittal Forms – that Plaintiff did not
send his concern form to the staff most capable of responding to the issue (medical staff).
MEMORANDUM DECISION AND ORDER - 14

actions in the United States District Court since 1995.8 In each of those lawsuits, Plaintiff
alleged that he had exhausted his administrative remedies before filing the complaint.
These allegations demonstrate Plaintiff's knowledge of, and purported compliance with,
the IDOC grievance process. Plaintiff also has attached a number of Offender Concern
Forms and Grievance/Appeal Forms to his Response (including those that relate to the
four unprocessed Grievance Forms discussed herein), which further supports Plaintiff's
familiarity with the IDOC grievance system. Indeed, the ISCI Grievance Coordinator
(who has served in that capacity since July 2006) attests in her follow-up Affidavit that
"[b]ased upon my experience with [Plaintiff], he understands the grievance process very
well." (Dkt. 29-1, p.2.) Accordingly, the evidence in the record shows that Plaintiff is
both familiar with and capable of complying with the grievance process.
Plaintiff also attempts to justify his failure to comply with the IDOC grievance
process by arguing that IDOC should have a separate grievance system for processing
medical complaints. The Grievance Coordinator responded to this argument as follows:
[Plaintiff] is incorrect when he implies that the grievance system is deficient
because there is no special process for offenders complaining about medical issues.
As I explained in my earlier affidavit, the grievance process just requires that
concern forms be addressed to the staff member most capable of responding to the
issue. If an offender has a medical complaint, he is merely required to submit a
standard form addressed to medical staff . . . [and] if an offender is not satisfied
with the response from medical, he can submit a normal grievance form. There are
no special "medical grievance forms" for an offender to use.
8

In addition to the instant action, Plaintiff has filed the following actions: CV-00095-EJL, Abbott
v. USA, et al.; CV-00039-MHW, Abbott v. State of Idaho, et al.; CV-00472-BLW, Abbott, et al. v.
Sombke, et al.; CV-00318-EJL, Abbott v. Craven, et al.; CV-00638-CWD, Abbott v. Nielson, et al.; CV00561-BLW, Abbott, et al. v. Reinke, et al.; and CV-00044-EJL, Abbott, et al. v. Wasden, et al.
MEMORANDUM DECISION AND ORDER - 15

(Dkt. 29-1, p.2.) The Grievance Coordinator's further explanation of the IDOC grievance
system is straightforward and reasonable; Plaintiff's argument that the lack of a separate
medical grievance process somehow justifies his failure to exhaust his administrative
remedies is without merit. The record shows Plaintiff was repeatedly told to submit his
concern form to medical staff. He simply refused to do so.9
After reviewing the arguments and evidence related to Defendants' Motion to
Dismiss, the Court concludes that Plaintiff has not exhausted the administrative remedies
available to him through the IDOC grievance system. Accordingly, the Court will grant
Defendants’ Motion to Dismiss for failure to exhaust administrative remedies.
3.

Plaintiff’s Motion for Preliminary Injunction (TRO) (Dkt. 18)
On June 28, 2012, Plaintiff filed a Motion for Preliminary Injunction (TRO) and

requested that he be moved out of the general population at ISCI and assigned to the
prison’s behavioral health unit “or other mental health facility" so that Plaintiff’s mental
health care and needs could be adequately treated. (Dkt. 18-1.) Because the Court will
grant Defendants' Motion to Dismiss, Plaintiff's Motion for Preliminary Injunction (TRO)
is now moot. Nevertheless, the Court notes that if Plaintiff still desires to obtain the relief
he seeks via his preliminary injunction motion – to obtain adequate mental health
treatment while incarcerated at ISCI – such relief may be pursued through the IDOC

9

For example, on Plaintiff’s third grievance, which was returned in part for the reason that the
resolution suggested did not match the issue being grieved, Plaintiff wrote: “My solution is to cut off my
left leg. This will stop the water buildup in my chest, then I wouldn’t need my oxygen condenser.” (Dkt.
27-2, p. 7.) This type of response does not show a good faith effort to comply with the grievance
procedures–the object of which is to resolve problems within the prison.
MEMORANDUM DECISION AND ORDER - 16

grievance process.
4.

Plaintiff’s Motion to Commence Pleadings (Dkt. 32)
On November 29, 2012, Plaintiff filed a Motion to Commence Pleadings (Dkt. 32),

requesting that the Court address Plaintiff's Motion for Preliminary Injunction and the
dispositive motions filed in this case. To the extent this Order resolves all pending
motions in this action, the Court hereby grants Plaintiff's Motion to Commence Pleadings.
5.

Plaintiff’s Motion to Compel Discovery (Dkt. 33)
The last motion pending before the Court is Plaintiff's Motion to Compel

Discovery, which he filed on November 29, 2012. (Dkt. 33.) Defendants filed a Response
to Plaintiff's Motion to Compel and argue that pursuant to the Initial Review Order, all
discovery in this case regarding the merits of this case is stayed pending the Court’s
ruling on Defendants’ Motion to Dismiss. (Dkt. 34.) Although the Court agrees with
Defendants' assertion that all discovery in this matter is stayed pending the Court's ruling
on Defendants' Motion to Dismiss (see Dkt. 9, p.9), Plaintiff's Motion to Compel
Discovery is now moot because of the Court's decision herein to grant Defendants'
Motion to Dismiss.
ORDER
IT IS HEREBY ORDERED:
1.

Defendants’ Motion for Extension of Time to File Motion to Dismiss (Dkt.

21) is GRANTED.
2.

Plaintiff’s Objection to Defendants’ Motion to Dismiss and Motion to

MEMORANDUM DECISION AND ORDER - 17

Strike Thereof (Dkt. 28) is DENIED.
3.

Plaintiff’s Motion to Strike Defendants’ Reply Memorandum in Support of

Motion to Dismiss (Dkt. 30) is DENIED.
4.

Defendants’ Motion to Strike Plaintiff’s Motion to Strike Defendants’

Reply Memorandum in Support of Motion to Dismiss and the Supporting Affidavit of
Dennis E. Abbott (Dkt. 31) is GRANTED.
5.

Defendants’ Motion to Dismiss (Dkt. 23) is GRANTED. All claims against

Defendants Shell Fisher, Johanna Smith, and Karen Barrett are dismissed with prejudice.
6.

Plaintiff’s Motion for Preliminary Injunction (TRO) (Dkt. 18) is MOOT.

7.

Plaintiff’s Motion to Commence Pleadings (Dkt. 32) is GRANTED to the

extent this Order resolves all pending motions in this action.
8.

Plaintiff’s Motion to Compel Discovery (Dkt. 33) is MOOT.

DATED: December 21, 2012

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

MEMORANDUM DECISION AND ORDER - 18