United States District Court, D. Oregon
PHILLIP CURTIS COLLICOTT also known as PHILLIP C. COLLICOTT, Plaintiff,
MAX WILLIAMS, Director of D.O.C.; MR. NOOTH; MR. GEER; BUSINESS OFFICE; ADMINISTRATION; MAIL ROOM, Defendants.
PHILLIP CURTIS COLLICOTT Ontario, OR. Plaintiff, Pro Se
ELLEN ROSENBLUM, Attorney General, SHANNON M. VINCENT, Assistant Attorney General, Salem, OR. Attorneys for Defendants
OPINION AND ORDER
ANNA J. BROWN, District Judge.
This matter comes before the Court on Defendants' Unenumerated Rule 12(b) Motion (#39-1) to Dismiss for Failure to Exhaust and Motion (#39-2) for Summary Judgment. For the reasons that follow, the Court GRANTS Defendants' Motion to Dismiss Plaintiff's claim related to the Inmate Welfare Fund for failure to exhaust and DENIES Defendants' Motion for Summary Judgment as to Plaintiff's First Amendment claim for denial of Prison Profiteers.
On August 20, 2012, Plaintiff Phillip Curtis Callicott filed a Complaint in this Court pursuant to 42 U.S.C. § 1983 in which he alleges Defendants violated his rights under the Fifth and First Amendments as well as the Due Process Clause of the United States Constitution because (1) they do not provide inmates with "notice of the amount of money in the Inmate [Welfare] Fund and where it's spent" and (2) at some point they "denied" Plaintiff the book Prison Profiteers.
On September 19, 2013, Defendants filed an Unenumerated Rule 12(b) Motion to Dismiss for Failure to Exhaust and a Motion for Summary Judgment in which Defendants seek dismissal of Plaintiff's claim related to the Inmate Welfare Fund (IWF) for failure to exhaust and summary judgment on Plaintiff's claim related to the denial of Prison Profiteers. The Court took this matter under advisement on December 13, 2013.
DEFENDANTS' MOTION TO DISMISS
In the Ninth Circuit failure to exhaust administrative remedies "should be treated as a matter in abatement, which 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). To decide a motion to dismiss for failure to exhaust administrative remedies, the court may look beyond the pleadings and decide disputed issues of fact. Id. at 1119-20.
Unlike summary judgment, dismissal for failure to exhaust administrative remedies is not a decision on the merits. 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. at 1120.
II. Inmate Welfare Fund
At some point the Oregon Department of Corrections (ODOC) established the Inmate Welfare Fund (IWF) account with the Oregon State Treasurer pursuant to Oregon Revised Statute § 421.068. The IWF provides funds to benefit ODOC's general-inmate population and to enhance inmate activities and programs, including educational programs. Funding sources for the IWF include ODOC facility commissary operations, commissions from the inmate telephone contract vendor, vending machines in visiting areas of ODOC institutions, funds confiscated through the disciplinary process, and donated funds.
Prior to 2013 ODOC distributed IWF using a two-tier process. IWF funds first were distributed so as "to cover [the ODOC] approved budget for Community Corrections, Transition & Release, and Inmate phones." Decl. of Steve Robbins at ¶ 5. ODOC distributed any remaining funds "based on a percentage to [alcohol and drug programs], education programs, and each ODOC institution." Robbins Decl. at ¶ 6.
After July 2013 ODOC began to distribute IWF funds using "a one-tier process based on need." Robbins Decl. at ¶ 7. Currently ODOC allocates IWF funds "across a variety of treatment and education programs, as well as a portion going to ODOC institutions statewide. The ODOC institutions decide how to spend their allocation of the IWF distribution." Robbins Decl. at ¶ 7.
Snake River Correctional Institution (SRCI) does not conduct fundraisers for the IWF, and neither ODOC nor SRCI make any accounting to the inmate population as to how IWF funds are managed. Robbins Decl. at ¶ 8. "Inmates have no role in the IWF, nor do they receive any information on how [the IWF] is managed." Robbins Decl. at ¶ 9.
III. Prison Litigation Reform Act (PLRA) Exhaustion Requirement
As noted, Plaintiff brings this action pursuant to 42 U.S.C. § 1983, which provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law.
Section 1983 creates a private right of action against persons who, acting under color of state law, violate federal constitutional or statutory rights. Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). The PLRA was amended to provide: "No action shall be brought with respect to prison conditions under Section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). Exhaustion is mandated regardless of the relief offered through the prison administrative procedures. Booth v. Churner, 532 U.S. 731, 121 S.Ct. 1819, 1825 (2001).
The exhaustion requirement applies "to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002). Moreover, the Supreme Court held in Booth that prisoners are obligated to navigate the prison's administrative review process "regardless of the fit between a prisoner's prayer for relief and the administrative remedies possible." 532 U.S. at 739-41. Accordingly, the Ninth Circuit has held "plaintiffs must pursue a remedy through a prison grievance process as long as some action can be ordered in response to the complaint." Brown v. Valoff, 422 F.3d 926, 934 (9th Cir. 2005)(emphasis in original). Even if the relief the prisoner receives is nothing more than "corrective action taken in response to an inmate's grievance [that]... improve[s] prison administration and satisf[ies] the inmate, " it is sufficient relief for an inmate to continue with the administrative process. Id. at 936 (quoting Porter, 534 U.S. at 525).
Exhaustion of administrative remedies under 42 U.S.C. § 1997e(e) is an affirmative defense. Wyatt, 280 F.3d at 1245. "[D]efendants have the burden of raising and ...