Abbott v. Rosenthal et al

Filing 22

MEMORANDUM DECISION AND ORDER granting 13 Defendant's Motion for Extension of Time to Answer; granting 15 Defendant's Motion to Dismiss for Failure to State a Claim; denying 17 Plaintiff's Motion for Default; denying 18 Plainti ff's Motion to Deny Defendant's Motion to Dismiss. Defendants Doslin, Rosenthal, Hunter, Blair, Bassford, and Nourse are DISMISSED from this action. Defendants IDOC and ISCI, as well as Defendants Metser, Thomas, and Blades (in their offici al capacities only), shall file their answer to Claim One no later than 21 days after entry of this Order. Signed by Judge Candy W. Dale. (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,
Case No. 1:13-cv-00222-CWD
Plaintiff,
MEMORANDUM DECISION AND
ORDER

v.
TERRIE ROSENTHAL, RANDY
BLADES, IDAHO DEPARTMENT OF
CORRECTION, IDAHO STATE
CORRECTIONAL INSTITUTION, BEN
METSER, MARTY THOMAS, CPL.
DOSLIN, JENNETE HUNTER, SGT.
BLAIR, MISS BASSFORD, and MARY
ELLEN NOURSE,
Defendants.

Plaintiff, a prisoner in the custody of the Idaho Department of Correction (IDOC)
and currently incarcerated at Idaho State Correctional Institution (ISCI), is proceeding pro
se and in forma pauperis in this civil rights action. Now pending before the Court are the
following motions: (1) Plaintiff’s Motion for Default (Dkt. 17); (2) Defendants’ partial
Motion to Dismiss1 (Dkt. 15); and (3) Plaintiff’s Motion to Deny Defendants’ Motion to
Dismiss (Dkt. 18), which the Court considers to be Plaintiff’s response to Defendants’
partial Motion to Dismiss.
1

Also pending is Defendants’ Motion for an Extension of Time, which the Court will grant. The
partial Motion to Dismiss is considered timely.

MEMORANDUM DECISION AND ORDER - 1

All parties who have appeared have consented to the jurisdiction of a United States
Magistrate Judge to enter final orders in this case (Dkt. 12). See 28 U.S.C. § 636(c) and
Fed. R. Civ. P. 73. 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
the decisional process would not be significantly aided by oral argument. Therefore, the
Court will decide this matter on the written motions, briefs and record. D. Idaho L. Civ.
R. 7.1(d). For the reasons that follow, the Court will grant Defendants’ Motion and (1)
dismiss with prejudice all individual capacity claims as non-cognizable, and (2) dismiss
without prejudice Claims Two through Five because Plaintiff failed to exhaust available
administrative remedies as to those claims. Defendants shall file an answer to the
remaining claim, Claim One, within 21 days of the date of this Order.
FACTUAL ALLEGATIONS
Plaintiff is in a wheelchair and alleges that he has applied for multiple prison
employment opportunities at ISCI, but that he has been denied a job because he is
disabled. (Compl., Dkt. 3, at 5-8.) Plaintiff also was allegedly denied participation in the
Correctional Industries training program. Plaintiff states that he has been told by prison
staff members that they will not hire anyone in a wheelchair. (Id. at 9.) Plaintiff also
claims that none of the areas in which he has sought prison employment has a
handicap-accessible bathroom. (Id. at 10.)
Plaintiff filed the instant civil rights action in May 2013. Claim One asserts that

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the IDOC, as well as Defendants Metser, Thomas, and Blades, violated the Americans
with Disabilities Act and the Rehabilitation Act by not allowing Plaintiff to participate in
the Correctional Industries program and by not having accessible bathrooms. (Id. at 8-9.)
Claims Two through Five assert similar violations on several occasions at other
employment sites at ISCI, violations allegedly committed by Defendants Doslin,
Rosenthal, Blades, Hunter, Blair, Bassford, and Nourse. (Id. at 9-11.)
DISCUSSION
1.

Plaintiff’s Motion for Default
Plaintiff moves for entry of default, arguing that Defendants have not timely

answered or filed a pre-answer motion with respect to Claim One. (Dkt. 17.) Although
Defendants’ Motion to Dismiss does apply to Claim One’s individual capacity claims
against Defendants Metser, Thomas, and Blades, Defendants have not moved to dismiss
Claim One as against IDOC or ISCI, or as against Metser, Thomas, or Blades in their
official capacities.
Federal Rule of Civil Procedure 12(a)(4) states that a Rule 12 motion tolls the time
period within which a defendant must file a responsive pleading. The Court concludes
that Rule 12(a)(4) also applies to a partial Rule 12(b) motion, tolling the time period for
filing an answer to all claims contained in the Complaint—not just the claims for which
the motion seeks dismissal. See, e.g., ThermoLife Int’l, LLC v. Gaspari Nutrition, Inc.,
2011 WL 6296833, *5 (D. Ariz. Dec. 16, 2011) (unpublished) (“[T]he majority of courts

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have expressly held that even though a pending motion to dismiss may only address some
of the claims alleged, the motion to dismiss tolls the time to respond to all claims.”).
Otherwise, a defendant would have to file an answer as to any claims not subject to the
motion to dismiss, only to file a second or amended answer later if the motion is denied.
The important goal of judicial efficiency compels the Court to conclude that Defendants
were not required to answer any part of the Complaint prior to the Court’s decision on the
partial Motion to Dismiss. Thus, Plaintiff’s Motion for Default will be denied.
2.

Defendants’ Motion to Dismiss Individual Capacity Claims
A.

Standard of Law Applicable to Rule 12(b)(6) Motions

Federal Rule of Civil Procedure 8(a)(2) requires “a short and plain statement of the
claim showing that the pleader is entitled to relief,” in order to “give the defendant fair
notice of what the ... claim is and the grounds upon which it rests.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted). A defendant may
move to dismiss a complaint if that complaint fails to state a claim upon which relief may
be granted. Fed. R. Civ. P. 12(b)(6). While a complaint attacked by a Rule 12(b)(6)
motion to dismiss “does not need detailed factual allegations,” it must set forth “more
than labels and conclusions, and a formulaic recitation of the elements of a cause of
action will not do.” Id.
To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to “state a claim to relief that is plausible on its face.” Id. at 570. A claim

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has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged. Id.
at 556. The plausibility standard is not akin to a “probability requirement,” but it asks for
more than a sheer possibility that a defendant has acted unlawfully. Id. Where a complaint
pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the
line between possibility and plausibility of ‘entitlement to relief.’” Id. at 557 (alteration
omitted).
The Supreme Court has identified two “working principles” that underlie this
dismissal standard. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “First, the tenet that a
court must accept as true all of the allegations contained in a complaint is inapplicable to
legal conclusions.” Id. “Rule 8 marks a notable and generous departure from the
hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of
discovery for a plaintiff armed with nothing more than conclusions.” Id. at 678–79.
Second, only a complaint that states a plausible claim for relief survives a motion to
dismiss. Id. at 679. “Determining whether a complaint states a plausible claim for relief
will . . . be a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Id.
When a court is considering a motion to dismiss under Rule 12(b)(6), it must
“‘consider only allegations contained in the pleadings, exhibits attached to the complaint,
and matters properly subject to judicial notice.’” Akhtar v. Mesa, 698 F.3d 1202, 1212

MEMORANDUM DECISION AND ORDER - 5

(9th Cir. 2012) (quoting Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007) (per
curiam)).
B.

Analysis

Plaintiff brings his claims under the Americans with Disabilities Act (ADA), 42
U.S.C. § 12101 et seq., and the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. The
ADA and the Rehabilitation Act are congruent statutes in purpose and application. See
Clark v. California, 123 F.3d 1267, 1270 (9th Cir. 1997). The evidence required for
bringing a Rehabilitation Act claim is the same as that for an ADA claim, with the
additional requirement that the disability discrimination be committed by an entity
receiving federal financial assistance. See 29 U.S.C. § 794. Therefore, the standards of an
ADA claim also apply to a Rehabilitation Act claim.
Title II of the ADA applies to an “individual with a disability who, with or without
reasonable modifications to rules, policies, or practices . . . meets the essential eligibility
requirements for the receipt of services or the participation in programs or activities
provided by a public entity.” 42 U.S.C. § 12131(2). Title II of the ADA extends to prison
inmates who are deprived of the benefits of participation in prison programs, services, or
activities because of a disability. See Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 211
(1998).
By statutory definition, a Title II ADA claim must be brought against the state or
the state entity. See United States v. Georgia, 546 U.S. 151, 159 (2006) (holding that Title

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II of the ADA validly abrogates Eleventh Amendment immunity for states for conduct
that actually violates the Fourteenth Amendment); Vinson v. Thomas, 288 F.3d 1145,
1156 (9th Cir. 2002) (“[A] plaintiff cannot bring an action under 42 U.S.C. § 1983 against
a State official in her individual capacity to vindicate rights created by Title II of the
ADA or section 504 of the Rehabilitation Act.”). Claims against individuals asserted
under the ADA are treated as official capacity claims because no individual capacity
claims under the statute exist. See, e.g., Becker v. Oregon, 170 F. Supp. 2d 1061, 1066
(D. Or. 2001); see also Miranda B. v. Kitzhaber, 328 F.3d 1181, 1187-88 (9th Cir. 2003)
(per curiam) (holding that Title II’s statutory language does not prohibit a plaintiff from
requesting injunctive action against state officials in their official capacities).
For these reasons, all claims asserted against Defendants in their individual
capacities will be dismissed with prejudice. This disposition does not affect Claim One as
against the state or state entities or as against Defendants Metser, Thomas, and Blades in
their official capacities.
3.

Defendants’ Motion To Dismiss Claims Two Through Five for Failure to
Exhaust
Defendants also seek dismissal of Claims Two through Five, arguing that Plaintiff

did not exhaust available administrative remedies prior to filing suit.
A.

Standard of Law for Exhaustion

Pursuant to the Prison Litigation Reform Act of 1995 (“PLRA”), Pub. L. No. 104134, 110 Stat. 1321, as amended, 42 U.S.C. § 1997e, et seq., a prisoner is required to
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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).
This exhaustion requirement applies to prisoners asserting claims under the ADA and the
Rehabilitation Act. O’Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056, 1061-62 (9th Cir.
2007). “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.
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

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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 jail staff took any
other “affirmative actions” that interfered with an inmate’s efforts to exhaust. Id. at 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.
B.

IDOC’s Grievance Procedure

The IDOC’s grievance process 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.” (Whittington Aff., Dkt. 15-2, at ¶ 5.) If the issue cannot be resolved

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informally through the use of a Concern Form, the inmate must then file a Grievance
Form. (Id. at ¶ 6.)
A Grievance Form must be submitted within 30 days of the incident giving rise to
the grievance. When submitting a Grievance Form, 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 ¶ 7.)
When the Grievance Coordinator receives an inmate grievance, she enters the grievance
information “into the Corrections Integrated System (CIS),” an electronic database used
to track inmate grievances. (Id.) The Grievance Coordinator then 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.” (Id.)
The reviewing authority reviews the grievance, including the staff member’s
response, and must deny, grant, or modify the grievance. (Id.) The reviewing authority
returns the grievance to the Grievance Coordinator, who logs the response into the
database and 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 ¶ 8.) The warden is the person who usually decides an inmate’s grievance appeal.

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(Id. at ¶ 9.) This “appellate authority” must review the appeal within 16 days. After the
appeal is decided, the Grievance Coordinator returns the completed appeal form to the
inmate.
Not until the completion of all three of these steps—Concern Form, Grievance
Form, and grievance appeal—is the grievance process exhausted. (Id. at ¶ 10.)
C.

Analysis

On April 9, 2013, Plaintiff filed a grievance regarding his attempts to be accepted
into the Correctional Industries (“CI”) program. (Ex. D to Whittington Aff., Dkt. 15-4 at
30.) The prison official who initially responded to Plaintiff’s grievance stated that
“[e]ntry into the CI compound is a security process that all offenders enrolled in the CI
program are required to do by ISOC security” and that the CI program “is a privilege and
not a right.” (Id. at 27.) Defendant Rosenthal reviewed this response and denied the
grievance. She stated that CI was a training program, that Plaintiff’s “disability [was] not
a determining factor for being accepted into the program,” and that if Plaintiff was
accepted into the training program, prison officials would work with Plaintiff to
accommodate his disability. (Id. at 28.) Plaintiff filed an appeal, which was denied by
Defendant Blades.
Although Plaintiff fully exhausted this grievance with respect to his claims
regarding the CI program (Claim One), Plaintiff did not file any other grievances with
respect to prison employment or accessibility. (Whittington Aff. at ¶¶ 15-16.) Thus,

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Defendants have met their burden of establishing that Plaintiff did not exhaust Claims
Two through Five, which pertain to events other than Plaintiff’s desire to join the CI
program. The burden thus shifts to Plaintiff to show that administrative remedies were
unavailable. Plaintiff has not done so. Plaintiff argues that he felt it unnecessary to file
more than one grievance, but the Court agrees with Defendants that “[t]he response by
Defendants Rosenthal and Blades to one grievance that was specific to CI does not serve
to exhaust the grievance process as to the other Defendants,” who allegedly denied
Plaintiff employment opportunities at other employment sites at ISCI. (Reply, Dkt. 20, at
4.) Because Plaintiff did not file a grievance with respect to any of these other instances
of alleged discrimination, he may not proceed on those claims in this action.
CONCLUSION
For the foregoing reasons, the Court will dismiss (1) all of Plaintiff’s individual
capacity claims, and (2) Claims Two through Five.
ORDER
IT IS ORDERED:
1.

Defendants’ Motion for Extension of Time (Dkt. 13) is GRANTED.
Defendants’ partial Motion to Dismiss is deemed timely.

2.

Defendants’ partial Motion to Dismiss (Dkt. 15) is GRANTED. All
individual capacity claims against the individual Defendants are
DISMISSED with prejudice. This Order does not affect Claim One as

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against the state or state entities or as Defendants Metser, Thomas, and
Blades in their official capacities.
3.

Claims Two through Five of the Complaint are DISMISSED without
prejudice for failure to exhaust available administrative remedies.
Defendants Doslin, Rosenthal, Hunter, Blair, Bassford, and Nourse are
DISMISSED from this action.

4.

Plaintiff’s Motion to Deny Defendants’ Motion to Dismiss (Dkt. 18) is
DENIED.

5.

Plaintiff’s Motion for Default (Dkt. 17) is DENIED.

6.

Defendants IDOC and ISCI, as well as Defendants Metser, Thomas, and
Blades (in their official capacities only), shall file their answer to Claim
One no later than 21 days after entry of this Order.

DATED: March 5, 2014

Honorable Candy W. Dale
United States Magistrate Judge

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