Price v. Skolnik et al

Filing 18

ORDER Granting 12 Defendants' Motion to Dismiss. Signed by Judge James C. Mahan on 5/13/11. (Copies have been distributed pursuant to the NEF - EDS)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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2:10-CV-1555 JCM (GWF)

AARON PRICE,
Plaintiff,
v.
HOWARD SKOLNIK, et al.,

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Defendants.

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ORDER

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Presently before the court is defendants James Baca’s, James Gregory Cox’s, Don Hellings’,

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William Shaw’s, Howard Skolnick’s, Gregory Smith’s, George Sorich’s, Michael Thalman’s,

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Vincent Verdova’s, and Adam Watson’s motion to dismiss. (Doc. #12). The plaintiff Aaron Price

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has responded (doc. #15), but to date no reply has been filed.

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Plaintiff filed the instant civil rights complaint on August 16, 2010, in Nevada’s Eighth

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Judicial District Court (doc. #1-2) alleging that he is Jewish and that prison officials denied his

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requests for kosher meals. Thereafter, on September 13, 2010, defendants removed the case to

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federal court. (Doc. #1). The court screened the complaint (doc. #9), and defendants subsequently

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filed the instant motion to dismiss (doc. #12).

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must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible

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on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v.

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Twombly, 550 U.S. 544, 570 (2007)). “Where a complaint pleads facts that are ‘merely consistent’

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with a defendant’s liability, it ‘stops short of the line between possibility and plausibility of

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James C. Mahan
U.S. District Judge

“To survive a motion to dismiss, a complaint

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entitlement to relief.’” Id. (citing Bell Atlantic, 550 U.S. at 557). However, where there are well pled

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factual allegations, the court should assume their veracity and determine if they give rise to relief.

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Id. at 1950.

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Under the Prison Litigation Reform Act (“PLRA”), a prisoner must exhaust available

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administrative remedies before bringing a federal action. 42 U.S.C. § 1997e(a). Exhaustion is an

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affirmative defense, Jones v. Bock, 549 U.S. 199, 211–12 (2007), under which defendants have the

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burden of proving that further administrative remedies are available to the plaintiff, Brown v. Valoff,

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422 F.3d 926, 936 (9th Cir. 2005). In deciding a motion to dismiss for failure to exhaust

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administrative remedies, the court may look beyond the pleadings and decide disputed issues of fact.

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Wyatt v. Terhune, 315 F.3d 1108, 1119–20 (9th Cir. 2003). The proper remedy where the defendant

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can show that a claim has not been exhausted is dismissal without prejudice. See Wyatt, 315 F.3d

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at 1119 (failure to exhaust administrative remedies is not decision on the merits).

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Citing the exhaustion requirement under the PLRA, defendants urge the court to dismiss

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plaintiff’s claims regarding the denial of kosher meals for failure to properly grieve. Defendants have

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attached plaintiff’s “inmate issue history” (doc. #12-1), which reflects three such complaints.1

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The first two complaints are first-level grievances. On December 6, 2010, plaintiff alleges

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that prison officials retaliated against him for receiving a kosher diet. (Id. at 2). The grievance was

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denied, and officials directed plaintiff to review “flyers/memo” regarding the Common-fair Menu”

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with a caseworker. (Id.). The second, recorded on May 27, 2010, alleges that plaintiff’s requests for

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kosher meals were being denied. (Id. at 5). Officials responded with a statement from Deputy

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Director Greg Cox: “Effective immediately, the NDOC [Nevada Department of Corrections] will

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only serve kosher meals to inmates that can prove through a recognized, outside organization that

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they are orthodox or conservative Jew and follow the policies and procedures outlined in A.R. 810.”

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(Id.).

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The third complaint, a second-level grievance recorded August 19, 2010, was ultimately “not

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James C. Mahan
U.S. District Judge

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For ease of reference, the grievances are discussed in the order in which they appear in the
inmate issue history, rather than in chronological order.
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accepted” because plaintiff failed to “attach the informal grievance with response, the first level with

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response to a second level grievance.” (Id. at 5). The court agrees with defendants that plaintiff’s

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failure to comply with the procedural requirements at the second-level means that the claims

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contained in the complaint have not been administratively exhausted, and the complaint should be

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dismissed without prejudice.

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that defendants’ motion to

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dismiss (doc. #12) is GRANTED.
DATED May 13, 2011.

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UNITED STATES DISTRICT JUDGE
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James C. Mahan
U.S. District Judge

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