Wolf et al v. Otter et al

Filing 76

MEMORANDUM DECISION AND ORDER CCA Defendants' Motion to Dismiss (Dkt. 44 ) is GRANTED. All of Plaintiff Kruger's claims against Defendants CCA and Ellis are DISMISSED without prejudice. 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 (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

ANDREW J.J. WOLF, R. HANS
KRUGER, and DAVID S. BEGLEY,1
Plaintiff,

Case No. 1:12-cv-00526-BLW
MEMORANDUM DECISION AND
ORDER

v.
C.L. “BUTCH” OTTER; LAWRENCE
WASDEN; IDAHO STATE BOARD OF
CORRECTIONS; ROBIN SANDY, J.R.
VAN TASSEL; JAY NIELSON; IDAHO
COMMISSION OF PARDONS AND
PAROLE; OLIVIA CRAVEN; BILL
YOUNG; MARK FUNAIOLE; JANE
DRESSEN; NORMAN LANGERAK;
MIKE MATTHEWS; BRENT REINKE;
CORRECTIONS CORPORATION OF
AMERICA, INC.; TIM WENGLER;
JASON ELLIS; CORIZON INC., each
sued in their individual and official
capacities and their successors in office,
Defendants.

Plaintiffs Andrew J.J. Wolf and R. Hans Kruger, prisoners in the custody of the
Idaho Department of Correction (“IDOC”), are proceeding pro se and in forma pauperis
1

Plaintiff Begley has voluntarily dismissed his claims in this action. (Dkt. 40.)

MEMORANDUM DECISION AND ORDER - 1

in this civil rights action. Plaintiffs claim that Defendants have violated the Eighth
Amendment in several ways stemming from prison overcrowding. Plaintiffs have been
allowed to proceed on the following claims: (1) claims of inadequate ventilation against
Defendant Reinke for injunctive relief; (2) claims of inadequate heating against
Defendant Reinke for injunctive relief; (3) claims of inadequate dayroom space,
inadequate staffing, and lack of out-of-cell time (a) against Defendant Corrections
Corporation of America (“CCA”), the private company operating the Idaho Correctional
Center (“ICC”) under contract with the IDOC, for damages and injunctive relief, and (b)
against Defendants Ellis2 and Reinke for injunctive relief. (See Initial Review Order, Dkt.
27, at 8-10, 28.)
Now pending before the Court is a Motion to Dismiss Plaintiff Kruger’s claims
against CCA and Ellis (collectively, the “CCA Defendants”). (Dkt. 44.) The CCA
Defendants argue that Plaintiff Kruger failed to exhaust administrative remedies as
required by the Prison Litigation Reform Act and that some of his claims were not
brought within the two-year statute of limitations. (Dkt. 44.)
Having carefully reviewed the record, the Court finds that the parties have
adequately presented the facts and legal arguments in the briefs and record and that oral
argument is unnecessary. See D. Idaho Loc. Civ. R. 7.1(d). The Court need not address
2

These claims were initially asserted against Timothy Wengler, the former warden of
ICC. However, the Court later granted Plaintiffs’ request to substitute current warden Jason Ellis
in place of former warden Wengler. All claims against Defendant Wengler have been dismissed.
(Dkt. 57.)
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the CCA Defendants’ statute of limitations argument, because the Court concludes that
Plaintiff Kruger did not exhaust available administrative remedies with respect to his
claims against the CCA Defendants. Accordingly, the Court enters the following Order
granting the CCA Defendants’ Motion and dismissing all of Plaintiff Kruger’s claims
against them.
DISCUSSION
1.

Standard of Law for Exhaustion of Administrative Remedies
Pursuant to the Prison Litigation Reform Act of 1995 (“PLRA”), Pub. L. No. 104-

134, 110 Stat. 1321, as amended, 42 U.S.C. § 1997e, et seq., a prisoner is required to
exhaust all of his administrative remedies within the prison system before he 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 the prisoner
must comply “with [the prison’s] deadlines and other critical procedural rules because no
adjudicative system can function effectively without imposing some orderly structure on
the course of its proceedings.” Woodford v. Ngo, 548 U.S. 81, 90-91 (2006).
“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 exhaustion requirement is based on the important policy concern that prison officials
should have “an opportunity to resolve disputes concerning the exercise of their
responsibilities before being haled into court.” Id. at 204.

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Failure to exhaust is an affirmative defense that is “subject to an unenumerated
Rule 12(b) motion rather than a motion for summary judgment.” Wyatt v. Terhune, 315
F.3d 1108, 1119 (9th Cir. 2003). In the context of such a motion, a court’s consideration
of evidence outside of the pleadings does not transform the motion to dismiss into a
motion for summary judgment. Rather, in deciding a motion to dismiss for failure to
exhaust, the Court “may look beyond the pleadings and decide disputed issues of fact.”
Id. at 1120. If a prisoner has failed to exhaust his administrative remedies, the appropriate
remedy is dismissal without prejudice. Id.
The defendant bears the burden of proving failure to exhaust. See Brown v. Valoff,
422 F.3d 926, 936 (9th Cir. 2005). If the defendant does so, “the burden shifts to the
plaintiff to show that the administrative remedies were unavailable.” Albino v. Baca, 697
F.3d 1023, 1031 (9th Cir. 2012). Confusing or contradictory information given to a
prisoner “informs [the] determination of whether relief was, as a practical matter,
‘available.’” Brown, 422 F.3d at 937.
Administrative remedies will be deemed unavailable and exhaustion excused if an
inmate shows that the required procedural steps were “not known and unknowable with
reasonable effort.” Albino, 697 F.3d at 1037. A complaint will not be dismissed for
failure to exhaust if the prison improperly processed an inmate’s grievance, if prison
officials misinformed an inmate regarding grievance procedures, or if prison staff took
any other “affirmative actions” that interfered with an inmate’s efforts to exhaust. Id. at

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1034, 1039. It is not enough that the prisoner was subjectively unaware of proper
grievance procedures; that lack of awareness must also be “objectively reasonable.” Id. at
1038.
2.

ICC/IDOC Grievance Process
ICC follows the IDOC’s grievance process, which consists of three stages. First,

any inmate with a concern is required to seek an informal resolution by filling out an
Offender Concern Form, addressed to the staff person “most capable of responding to
and, if appropriate, resolving the issue.” (Decl. of Margaret Purcell, Dkt. 44-2, at ¶ 7.) If
the issue cannot be resolved informally through the use of a Concern Form, the inmate
must then file a Grievance Form. (Id. at ¶ 8.)
A Grievance Form must be submitted within 30 days of the incident giving rise to
the grievance. When submitting a grievance, the inmate must attach a copy of the
Offender Concern Form, showing the inmate’s attempt to settle the issue informally.
Grievances must contain “specific information including the nature of the complaint,
dates, places, and names,” and only one issue may be raised in each grievance. (Id. at ¶ 9.)
When the grievance coordinator receives an inmate grievance, she “assigns the grievance
to the staff member most capable of responding to and, if appropriate, resolving the
issue.” (Id.) That staff member responds to the grievance and returns it to the Grievance
Coordinator. The Grievance Coordinator then forwards the grievance to a “reviewing
authority,” usually a deputy warden. (Id.)

MEMORANDUM DECISION AND ORDER - 5

The reviewing authority responds to the grievance and returns it to the Grievance
Coordinator, who sends the completed grievance back to the inmate. (Id.) If the decision
on an inmate’s grievance is not satisfactory to the inmate, the inmate may appeal that
decision. (Id. at ¶ 10.) The “facility head,” or the warden, is the person who usually
decides an inmate’s grievance appeal. (Id. at ¶ 11.)
Not until the completion of all three of these steps—Concern Form, Grievance
Form, and grievance appeal—is the grievance process exhausted. (Id. at ¶ 12.)
3.

Plaintiff Kruger Did Not Exhaust Available Administrative Remedies
According to the ICC Grievance Coordinator, as well as Plaintiff’s grievance

records, Plaintiff Kruger did not file any grievances when he was incarcerated at ICC.
(Purcell Decl. at ¶ 15 and Ex. C.) Rather, Plaintiff Kruger filed grievances only while he
was housed at Idaho State Correctional Institution. (Id.) Therefore, the CCA Defendants
have met their burden of showing that Plaintiff Kruger did not properly exhaust the ICC
grievance process. Because Plaintiff Kruger has not come forward with evidence that
administrative remedies were unavailable, see Albino, 697 F.3d at 1031, the Court
concludes that Plaintiff Kruger failed to exhaust available administrative remedies with
respect to all of his claims against the CCA Defendants. Accordingly, the Court will grant
the CCA Defendants’ Motion to Dismiss.
ORDER
IT IS ORDERED that the CCA Defendants’ Motion to Dismiss (Dkt. 44) is

MEMORANDUM DECISION AND ORDER - 6

GRANTED. All of Plaintiff Kruger’s claims against Defendants CCA and Ellis are
DISMISSED without prejudice.

DATED: March 25, 2014

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

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