Faught v. CCA et al

Filing 18

MEMORANDUM DECISION AND ORDER denying 13 Defendant's Motion to Dismiss. 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

GENE FAUGHT,

Case No. 1:12-cv-00574-BLW
Plaintiff,

MEMORANDUM DECISION AND
ORDER

v.
CCA, BRYCE AITKEN, and Dr. DAVID
AGLER,
Defendants.

INTRODUCTION
The Court has before it Defendants’ Motion to Dismiss (Dkt. 13). The Court has
determined that the decisional process would not be aided by oral argument. Accordingly,
the Court issues the following decision based upon the parties’ briefs.
BACKGROUND
On November 17, 2010, plaintiff Gene Faught, an Idaho prison inmate, hurt his
wrist while playing handball at Idaho Correctional Center (“ICC”). He submitted a
Health Services Request requesting an x-ray evaluation and authorization for a bottom
bunk. The prison doctor evaluated his x-rays and denied his bottom bunk request on
January 26, 2011. That same day Faught filed an Offender Concern Form indicating that
he believed his medical treatment was negligent because he was denied a bottom bunk.
ICC responded that he did not qualify for a bottom bunk.

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Faught then filed a formal Grievance form. ICC rejected the grievance as untimely
and because it did not attach his Offender Concern Form. Faught re-filed the grievance,
attaching the Offender Concern Form. ICC denied it as untimely as well. Faught then
filed a formal Appeal. ICC denied the appeal, noting that an inmate cannot appeal a
grievance returned without action. This lawsuit followed.
LEGAL STANDARD
Under the Prison Litigation Reform Act (“PLRA”) a prisoner must properly
exhaust available administrative remedies before filing a federal lawsuit challenging
prison conditions. 42 U.S.C. § 1997e(a). In the Ninth Circuit, failure to exhaust
nonjudicial remedies which are not jurisdictional are treated as a matter in abatement
subject to an unenumerated Rule 12(b) motion. Wyatt v. Terhune, 315 F.3d 1108, 1119
(9th Cir. 2003). When deciding a motion to dismiss for a failure to exhaust nonjudicial
remedies, the district court may look beyond the pleadings and decide disputed issues of
fact. Id. “If the district court concludes that the prisoner has not exhausted nonjudicial
remedies, the proper remedy is dismissal of the claim without prejudice.” Id.
ANALYSIS
1.

ICC Grievance Procedure
The Idaho Department of Correction (“IDOC”) uses a three-step administrative

grievance process, which is followed by ICC. Purcell Decl., Dkt. 13-2, Ex. D. Under the
grievance process, inmates must first attempt to resolve their issue informally by
submitting an Offender Concern Form. ICC has seven days to respond. Id. If the issue is

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not resolved informally, and the inmate wishes to pursue it further, he must file a
Grievance/Appeal Form, with the “Grievance” option checked. Id. The inmate must also
attach the Offender Concern Form and any supporting documentation to the Grievance
Form, and indicate his suggested solution to the problem. Id. The Grievance Form must
be filed within thirty days of the incident or problem which is the basis of the grievance.
Id. A Grievance Form may be rejected and returned to the inmate if it is filed incorrectly,
and the inmate must re-file a Grievance Form. Id.
A Grievance Coordinator assigns the grievance to the staff member most capable
of responding to it. Id. That staff member has ten days to answer and return the grievance
to the Grievance Coordinator. Id. The Grievance Coordinator then forwards the grievance
and staff response to a “reviewing authority,” who is typically a deputy warden. Within
fourteen days of receiving the grievance, the reviewing authority must review the
grievance, the staff response, and any applicable rules, policies, procedures etc, and either
deny, modify or grant the solution suggested by the inmate. Id. He then forwards the
grievance to the Grievance Coordinator, who files the original grievance form and returns
a copy to the inmate with the responses of the assigned staff member and the reviewing
authority. Id.
If the inmate is not satisfied with the response to his grievance, and he wishes to
continue the grievance process, he must file an appeal within five days of receiving the
response to his grievance. Id. The appeal form is the Grievance/Appeal form, with the
“Appeal” box checked. Id. The inmate must attach the original Grievance Form to the

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Grievance Appeal Form and explain why the grievance finding should be changed. Id.
When the Grievance Coordinator receives an appeal, he logs the appeal and forwards it to
the “appellate authority.” Id. The appellate authority has fourteen days to issue a final
response denying, modifying or granting the appeal. Id. The appellate authority then
returns the completed Grievance Appeal Form to the Grievance Coordinator, who logs it
and forwards it on to the inmate, which concludes the administrative process. Id.
2.

Defendants’ Motion to Dismiss
Defendants ask the Court to dismiss the claims against Mr. Aitken and narrow the

claims against ICC and Dr. Agler because Faught failed to adequately comply with the
administrative process. Specifically, Defendants contend that Faught exhausted his
administrative remedies only with regard to his claim that Dr. Alger delayed scheduling
his surgery from September 2011 to March 2012.
Defendants contend that Faught did not exhaust his administrative remedies
regarding his other grievances because his grievance was returned without action because
it was untimely. In turn, they contend that it was untimely because Faught submitted the
grievance more than thirty days after he hurt his wrist. Faught hurt his wrist on November
17, 2010, and he submitted his grievance on February 7, 2011. However, Defendants
admit that “[a]pparently, the Grievance Coordinator was unclear on what exactly was
being grieved and thought the thirty days had lapsed.” Defs’ Reply, Dkt. 17. Defendants
therefore suggest that Faught should have submitted another form clarifying his

MEMORANDUM DECISION AND ORDER - 4

grievance, and stating that he was complaining of conduct which occurred on January 26,
2011, not the date he hurt his wrist.
The problem with Defendants’ argument is that the grievance procedure does not
indicate that an inmate should re-submit a grievance form clarifying his grievance if it is
returned as untimely. Instead, the process states that “[i]f staff decides it is necessary to
obtain more information, a staff member may interview the offender or request additional
written explanation.” Purcell Decl., Dkt. 13-2, Ex. D, p.5. It further states that “grievance
forms that are difficult to read or understand may be returned with instructions regarding
needed changes.” Id.
Here, Faught’s grievance gave a fairly detailed and coherent statement that he was
denied certain medical care on January 26, 2011. Faught Aff., Ex. D, Dkt. 15-6. The
alleged poor medical care related to the wrist injury which occurred in November 2010,
but the grievance indicates that Faught took issue with the information and care provided
to him by the medical staff on January 26, 2011. Thus, he had thirty days from that date
to submit his grievance. He did so on February 7, 2011. If the Grievance Coordinator
misunderstood the grievance, he or she should have requested additional information as
required by the process.
Under these circumstances, it was reasonable for Faught to appeal the denial of his
grievance as untimely. He then followed the appeal process, which exhausted his
administrative remedies. Accordingly, none of Faught’s claims are barred for failure to
exhaust his administrative remedies, and Defendants’ motion to dismiss will be denied.

MEMORANDUM DECISION AND ORDER - 5

ORDER
IT IS ORDERED THAT:
1.

Defendants’ Motion to Dismiss (Dkt. 13) is DENIED.

DATED: April 22, 2013

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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