Jonas v. Reinke et al

Filing 19

MEMORANDUM DECISION AND ORDER granting in part and denying in part 12 Motion to Dismiss for Failure to State a Claim. All claims against Defendant Woolf are DISMISSED with 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 (st)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

SANDY JONAS,
Case No. 4:12-cv-00251-BLW
Plaintiff,
v.

MEMORANDUM DECISION AND
ORDER

BRENT REINKE, JIM WOOLF,
LEEANNE HAMILTON, JEFF
KIRKMAN, FELICIA FUNK, and
JOHN AND JANE DOES 1-10
Defendants.

Pending before the Court is Defendants’ Motion to Dismiss Pursuant to FRCP
12(b)(6). (Dkt. 12.). In addition to allegations that Plaintiff failed to state a claim on
which relief may be granted, Defendants’ motion also asserts that Plaintiff failed to
exhaust administrative remedies under Rule 12(b). (Id.)
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.
The Court will grant in part and deny in part Defendant’s Motion to Dismiss.

MEMORANDUM DECISION AND ORDER - 1

BACKGROUND
Plaintiff was part of a group of prisoners at the Pocatello Women’s Correctional
Center (PWCC) who started a lawsuit by jointly filing a Prisoner Civil Rights Complaint
docketed as Blanc v. Reinke, et al., 4:11-cv-00333-BLW, in which they challenged wideranging conditions at PWCC, alleging that prison officials and employees violated their
constitutional rights and contravened various federal criminal statues. (Case No. 4:11-cv00333-BLW, Dkt. 3.) Plaintiffs also requested certification as a class action. (Id. at Dkt.
4.)
The case was assigned to Magistrate Judge Ronald E. Bush, who conducted an
initial review of the Complaint as required by 28 U.S.C. § 1915 and § 1915A. (Id. at Dkt.
9.) Judge Bush determined that the Plaintiffs had failed to state a claim on which relief
may be granted. He instructed each Plaintiff who wished to proceed to file her own
amended complaint, rather than to continue as joint plaintiffs in a single case, and to
submit a new application to proceed in forma pauperis. (Id. at Dkt. 9, pp. 24-25.) The
case was then reassigned to the undersigned District Judge, who independently reviewed
the Complaint and agreed with Judge Bush that it failed to state a claim on which relief
may be granted. (Id. at Dkt. 16, pp. 4-5.)
On May 21, 2012, Plaintiff filed the Complaint in the instant case. (Dkt. 2.) The
Complaint raises broad claims under thirty-two categories that implicate nearly every
aspect of confinement at PWCC, with titles such as “Medical,” “Retaliation,”
“Overcrowding,” “Mass Punishment,” and “Fraternization,” among others. (Id. at 4-9.)
MEMORANDUM DECISION AND ORDER - 2

The Court initially reviewed the Complaint pursuant to 28 U.S.C. § 1915 and §
1915A, and on November 20, 2012, entered an Order permitting Plaintiff to proceed with
an Eighth Amendment medical claim. (Dkt. 6, p.6.) Plaintiff’s claim is limited to her
allegations that “prison officials failed to (1) treat a broken thumb, (2) provide her with a
reasonable accommodation for her ‘photophobia,’ and (3) provide hormone therapy after
a hysterectomy.” (Id.)
Plaintiff alleges that she dislocated and broke her thumb on July 24, 2011, but was
told that there was “nothing wrong with it.” (Dkt. 2, p. 4.) Eventually, a surgical
appointment was scheduled, but prison officials failed to take Plaintiff to her
appointment, and when it was rescheduled the surgeon had no choice but to fuse the joint,
because too much time had passed. (Id.) Plaintiff also contends that she was not allowed
to wear her sunglasses indoors for photophobia, even though she had a medical memo to
do so, which has caused her to lose some of her eyesight. (Id. at 2.) Finally, she asserts
that medical providers have not allowed her to take hormone replacement medication
after she had a hysterectomy, which affects her “mental, emotional, psychological” wellbeing. (Id. at 4.)

On January 22, 2013, Defendants filed their Motion to Dismiss

Pursuant to FRCP 12(b)(6). (Dkt. 12.) Defendants argue that Plaintiff failed to exhaust
her administrative remedies regarding her allegations as to the medical treatment for her
photophobia and the failure to provide hormone therapy. (Dkt. 12-1, pp. 7-8.) As to the
claim regarding Plaintiff’s broken thumb, Defendants argue that she has failed to allege,
and there are no facts to support, that the remaining Defendants (Woolf and Hamilton)
MEMORANDUM DECISION AND ORDER - 3

were personally involved in Plaintiff’s medical treatment. (Id. at 9-11.) In response,
Plaintiff contends that there is no administrative process to exhaust because
“administration refused to process grievances” and that only Hamilton was “personally
involved.” (Dkt. 17.)
FAILURE TO STATE A CLAIM
1.

Standard
A motion to dismiss under Rule 12(b)(6) tests the sufficiency of the complaint.

North Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir. 1983). Under the
“notice pleading” standard of the Federal Rules of Civil Procedure, a plaintiff’s complaint
must provide a “short and plain statement” of plaintiff’s claims showing entitlement to
relief. Fed.R.Civ.P. 8(a)(2). “A complaint may survive a motion to dismiss if, taking all
well-pleaded factual allegations as true, it contains ‘enough facts to state a claim to relief
that is plausible on its face.’” Coto Settlement v. Eisenberg, 593 F.3d 1031, 1034 (9th Cir.
2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (9th Cir. 2009)). “A claim 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.” Iqbal, 556
U.S. at 678. The court accepts “all facts alleged as true and construes them in the light
most favorable to the plaintiff.” County of Santa Clara v. Astra USA, Inc., 588 F.3d
1237, 1241 n. 1 (9th Cir. 2009).
However, a court must treat a motion to dismiss as a motion for summary
judgment if matters outside the pleadings are submitted by the parties and considered by
MEMORANDUM DECISION AND ORDER - 4

the court. San Pedro Hotel Co., Inc. v. City of Los Angeles, 159 F.3d 470, 477 (9th Cir.
1998).
2.

Discussion
Defendants argue that Plaintiff’s claim regarding his thumb should be dismissed,

because there is no evidence or allegations that Defendants Woolf or Hamilton were
personally involved in Plaintiff’s care and treatment.
Under 42 U.S.C. § 1983, to maintain an Eighth Amendment claim based on prison
medical treatment, an inmate must show “deliberate indifference to serious medical
needs.” Estelle v. Gamble, 429 U.S. 97, 103-04 (1976). In the Ninth Circuit, the test for
deliberate indifference consists of two parts. McGuckin v. Smith, 974 F.2d 1050 (9th Cir.
1991), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir.
1997) (en banc). First, the plaintiff must show a “serious medical need” by demonstrating
that “failure to treat a prisoner’s condition could result in further significant injury or the
“unnecessary and wanton infliction of pain.’” Id. at 1059 (citing Estelle, 429 U.S. at
104). Second, the plaintiff must show the defendant’s response to the need was
deliberately indifferent. Id. at 1060. The second prong - defendant’s response to the need
was deliberately indifferent- is satisfied by showing (a) a purposeful act or failure to
respond to a prisoner’s pain or possible medical need and (b) harm caused by the
indifference. Id. Indifference “may appear when prison officials deny, delay or
intentionally interfere with medical treatment, or it may be shown by the way in which
prison physicians provide medical care.” Id. at 1059.
MEMORANDUM DECISION AND ORDER - 5

The Ninth Circuit has long permitted plaintiffs to hold supervisors individually
liable in § 1983 suits when culpable action, or inaction, is directly attributed to them.
Starr v. Baca, 652 F.3d 1202, 1205 (9th Cir. 2011). In other words, a defendant may be
held liable as a supervisor under § 1983 “if there exists either (1) his or her personal
involvement in the constitutional deprivation, or (2) a sufficient causal connection
between the supervisor’s wrongful conduct and the constitutional violation.” Id. at 1207.
“A plaintiff must show the supervisor breached a duty to plaintiff which was the
proximate cause of the injury. The law clearly allows actions against supervisors under
section 1983 as long as a sufficient causal connection is present and the plaintiff was
deprived under color of law of a federally secured right.” Id. (quoting Redman v. Cnty. of
San Diego, 942 F.2d 1435, 1447 (9th Cir. 1991)(en banc)).
“The requisite causal connection can be established . . . by setting in motion a
series of acts by others,” or by “knowingly refus[ing] to terminate a series of acts by
others, which [the supervisor] knew or reasonably should have known would cause others
to inflict a constitutional injury.” Id. (quoting Dubner v. City & Cnty. of San Francisco,
266 F.3d 959, 968 (9th Cir. 2001)). “A supervisor can be liable in his individual capacity
for his own culpable action or inaction in the training, supervisor, or control of his
subordinates; for his acquiescence in the constitutional deprivation; or for conduct that
showed a reckless or callous indifference to the rights of others.” Id. at 1208.
Here, Defendants argue that there is no evidence or allegations that Warden Woolf
or Deputy Warden Hamilton were personally involved in the treatment of Plaintiff’s
MEMORANDUM DECISION AND ORDER - 6

thumb injury. (Dkt. 12-1, pp. 9-11.) To support their argument, Defendants cite the
Complaint and submit the Affidavit of Michelle Davis. (Dkt. 12-1, p. 10.) Michelle
Davis is the Grievance Coordinator at PWCC. (Dkt. 12-2, p. 2.) Attached to her affidavit
are various exhibits, including four grievances Plaintiff filed regarding the care and
treatment she was provided for her thumb. (Id. at Ex. G-J.) Defendants argue that these
grievances evidence: (1) they were not personally involved in the care and treatment of
Plaintiff’s thumb injury; (2) they were not personally involved at the administrative level;
and (3) they were not aware of Plaintiff’s grievances/complaints. (Dkt. 12-1, pp. 10-11.)
Thus, Defendants conclude that “[w]ithout personal involvement or even knowledge of
the incidents alleged, neither Warden Woolf nor Deputy Warden Hamilton may be liable
for any of the alleged injury suffered by Plaintiff.”

(Id.)

Plaintiff responds by admitting that “Woolf was never personally involved in
anything at PWCC.” (Dkt. 17.) As to Hamilton, Plaintiff argues that she was personally
involved due to conversations Plaintiff had with her concerning her thumb. (Id.) Plaintiff
proffers information concerning the conversations; however, such was not included in her
Complaint. (Id.)
The Court will grant the motion to dismiss as to Defendant Woolf. As to
Defendant Hamilton, given that both parties have submitted matters outside of the
pleadings to address whether or not she was personally involved, the Court concludes this
issue would be more appropriately heard as a motion for summary judgment.
Accordingly, Defendants’ motion to dismiss as to Defendant Hamilton will be denied
MEMORANDUM DECISION AND ORDER - 7

concerning the medical treatment and care Plaintiff received for her thumb. However,
Defendants may file a motion for summary judgment under Rule 56 on this issue.
To survive summary judgment, Plaintiff will have to demonstrate a genuine
dispute as to a material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.

574, 586 (1986). In other words, Plaintiff will have to demonstrate that there is a genuine
dispute as to whether Defendant Hamilton was personally deliberately indifferent.
Material used to support or dispute a fact must be “presented in a form that would be
admissible in evidence.” Fed. R. Civ. P. 56(c)(2). Therefore, Plaintiff will have to
submit an affidavit or declaration in opposition to the motion which: (1) is made on
personal knowledge; (2) sets out facts that would be admissible in evidence; and (3)
shows that Plaintiff is competent to testify on the matters stated.” Fed. R. Civ. P.
56(c)(4). If Plaintiff seeks to argue that Defendant Hamilton is personally liable due to
the conversations the two had concerning Plaintiff’s thumb, Plaintiff needs to set forth in
an affidavit the details of these conversations, including dates and times. Plaintiff also
needs to show a “purposeful act or failure” by Defendant Hamilton to respond to her pain
or medical need and that Defendant Hamilton’s alleged indifference caused Plaintiff
harm. See McGuckin v. Smith, 974 F.2d at 1060.
FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES
1.

Standard
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
MEMORANDUM DECISION AND ORDER - 8

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.
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 deciding a motion to dismiss for lack of exhaustion,
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
MEMORANDUM DECISION AND ORDER - 9

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 be “objectively reasonable.” Id. at 1038.
2.

IDOC Grievance Procedure
The Idaho Department of Correction uses a three-step administrative grievance

process to address prisoner complaints relating to their incarceration, including those
issues which Plaintiff raises in this action. (Dkt. 12-2, pp. 2-3). The prisoner must first
submit an offender concern form, then a grievance form, and then file an appeal of the
response to the grievance. (Id.)
The prisoner begins this process by routing the offender concern form to the staff
member most capable of responding to, and if appropriate, resolving the problem. (Id. at
3.) If the issue is not resolved at this informal level, then the prisoner may complete a
grievance form and must file that grievance within a specific time frame from the incident
or problem. (Id.) The grievance form must contain specific information regarding the
MEMORANDUM DECISION AND ORDER - 10

nature of the complaint, including the dates, places, names, and the offender must suggest
a solution to the issue. (Id.) Upon receipt of a grievance, the Grievance Coordinator
enters the grievance information into the Corrections Integrated System (CIS), an
electronic database used to log grievances and appeals. (Id.) The Grievance Coordinator
determines if the grievance form is completed correctly and if so, assigns it to the staff
member most appropriate to respond to it. (Id.) If the form is completed incorrectly, the
Grievance Coordinator returns it to the prisoner using the Grievance/Disciplinary Offense
Report (DOR) Transmittal Form. (Id.)
After the staff member responds to the grievance, the Grievance Coordinator logs
the information into the CIS database and then forwards the grievance to a “reviewing
authority,” who, for health care issues, is usually a medical supervisor. (Id. at 4.) The
“reviewing authority” must review the prisoner’s complaint and the staff member’s
response and issue a decision denying, modifying or granting the prisoner’s suggested
solution within a specific period of time. (Id.) The Grievance Coordinator logs the
reviewing authority’s response in the CIS database and forwards the printed grievance
and the prisoner’s original attachments to the prisoner, and then files a copy of the printed
grievance, the original Grievance/Appeal Form and copies of all attachments. (Id.)
If the prisoner is dissatisfied with the response to his grievance, he may then file an
appeal. (Id.) After the Grievance Coordinator receives as appeal, she is required to enter
the appeal into the CIS database and forward it to the “appellate authority.” (Id.) At the
PWCC, the appellate authority is the Warden, except as to medical grievances, in which
MEMORANDUM DECISION AND ORDER - 11

case the contract medical provider acts as the appellate authority. (Id.) The appellate
authority drafts a response within a specific time of receiving the grievance appeal, and
returns it to the Grievance Coordinator, who logs the response in CIS. (Id.) The
Grievance Coordinator then forwards the printed grievance and the prisoner’s original
attachments to the prisoner, and then files a copy of the printed grievance, the original
Grievance/Appeal Form and copies of all attachments. (Id. at 5.) Upon completion of all
three steps, the offender grievance process is exhausted. (Id.)
3.

Discussion
Defendants argue that Plaintiff failed to exhaust the IDOC grievance process with

respect to her Eighth Amendment claim regarding her photophobia and hormone therapy.
(Dkt. 12-1, p.7.) The Court will address each argument in turn.
A.

Reasonable Accommodation for Photophobia

To meet their initial burden, Defendants rely upon the Affidavit of Michelle Davis.
(Dkt. 12-2.) Davis states that from January 1, 2010 to the date of her affidavit (January
22, 2013), Plaintiff did not file a grievance about being allowed to wear glasses due to her
photophobia. (Id. at ¶20.) The only grievance filed by Plaintiff, which refers to
photophobia, complains of overly bright lights - no mention of glasses is made. (Id. at
Exh. K.) Plaintiff responds that her administrative remedies could not be exhausted
because “administration refuses to process grievances and Plaintiff can proceed no further
as a result of the staffs [sic] actions.” (Dkt. 17.)
Although exhaustion is mandatory, an inmate must only exhaust administrative
MEMORANDUM DECISION AND ORDER - 12

remedies “as are available.” 42 U.S.C. § 1997e(a). Under Ninth Circuit law, exhaustion
is excused when “improper screening” of grievances occurs. Sapp v. Kimbrell, 623 F.3d
813, 822 (9th Cir. 2010). Sapp established that “improper screening of an inmate’s
administrative grievances renders administrative remedies ‘effectively unavailable’ such
that exhaustion is not required under [§ 1997e(a)].” Id. at 823.
However, to invoke this “effectively unavailable” exception to exhaustion, “a
prisoner must show that he attempted to exhaust his administrative remedies but was
thwarted by improper screening.” Id. Specifically, the inmate must establish that (1) he
actually filed a grievance or grievances that, if pursued through all levels of
administrative appeals, would have sufficiently exhausted the claim he brought in court,
and (2) prison officials screened his grievance or grievances for reasons inconsistent with
or unsupported by applicable regulations. Id. at 823-24.
Plaintiff has not made the necessary showing to apply this exception. Although she
states that “administration refuses to process grievances and Plaintiff can proceed no
further as a result of the staffs [sic] actions,” this statement does not demonstrate that she
actually submitted, or attempted to submit a grievance (concerning the use of her glasses)
that “if pursued through all levels of administrative appeals, would have sufficed to
exhaust her claim.” Sapp, 623 F.3d at 823-24. Nor is there any evidence that prison
officials improperly screened a grievance, or had “draconian procedural requirements”
such that administrative remedies were “effectively unavailable.” Id. at 827.
Instead, the evidence indicates that Plaintiff has filed 101 grievances since January
MEMORANDUM DECISION AND ORDER - 13

4, 2010, of which, 82 grievances were granted/modified, denied or pending. (Dkt. 12-2,
¶12, Exh. D.) The 19 grievances which were returned without processing do not relate to
the current claims before the Court. (Id.) However, Plaintiff had the opportunity to
correct the returned grievances and to re-submit them for processing. (Id. at Exh. A, p. 5,
Exh. B pp. 9-10, Exh. C, pp. 9-10.) Plaintiff did not do so. Plaintiff’s frequent use of the
grievance system indicates that she is aware of its procedures. Her allegation that “staff
refused” to process her grievances is without merit. Plaintiff makes no other argument
concerning her photophobia claim. Accordingly, the Court will dismiss this claim.
B.

Hormone Therapy Medications

Davis provides that Plaintiff submitted two grievances regarding her medications
for non-chronic conditions, which included Premarin - an estrogen supplement. (Dkt. 122, ¶¶ 13-14, Exh. E and F.) However, Defendants contend that Plaintiff’s grievances only
relate to whether her conditions are “chronic”, (and subject to medical co-pays), rather
than whether the medications are unavailable. (Dkt 12-1, p. 8; Dkt 12-2 at Exh. E and F.)
Because Plaintiff has filed no grievance complaining she has been denied hormone
therapy medications, Defendants assert that she has failed to exhaust the administrative
process as to this allegation.
Plaintiff responds by contending that the following grievance exhausted her claim:
Denial of medical services. READ CONCERN! I put in to see Dr Dyer & was
refused cause of “COST” per Malooly. Malooly is not licensed as an OB/GYN &
Dr. Dyer is. Malooly is contradicting Dr. Dyer, who I have not seen since 2005.
My concern was sent to Thomas who I guess is too damn lazy to answer it.
Medical is one embezzlement scam, the FOR PROFIT bullshit. Seem to me over
MEMORANDUM DECISION AND ORDER - 14

$22 million is a nice chunk of change in the po . . .
(Dkt. 17; Dkt. 12-2, Exh. D, Grievance #110000248.) Plaintiff states that she requested
to see Dr. Dyer when her hormone medications were threatened, but her request was
denied due to cost. (Dkt. 17.) She then alleges that the medications were taken away and
that she was told she would now have to pay for them. (Id.)
Plaintiff has not filed a grievance for the claim in her complaint that she is denied
hormone therapy medication. The grievances only concern costs associated with the
medication and denials to see a specialist. Consequently, Plaintiff has failed to exhaust
her administrative remedies regarding this claim as well. The Court will dismiss the
claim that Plaintiff is denied hormone therapy medication.
ORDER
IT IS ORDERED:
Defendants’ Motion to Dismiss Pursuant to FRCP 12(b)(6) (Dkt. 12) is
GRANTED IN PART and DENIED IN PART, as set forth above. All claims against
Defendant Woolf are DISMISSED with prejudice.

DATED: August 1, 2013

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

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