Forter v. Geer

• Decision Date: 17 April 2012
• Docket Number: No. 3:10–cv–06065–MO.,3:10–cv–06065–MO.
• Citation: 868 F.Supp.2d 1091
• Parties: Jeffrey FORTER, Plaintiff, v. Randy GEER, et al., Defendants.
• Court: U.S. District Court — District of Oregon

868 F.Supp.2d 1091

Jeffrey FORTER, Plaintiff,

v.Randy GEER, et al., Defendants.

No. 3:10–cv–06065–MO.

United States District Court, D. Oregon.

April 17, 2012.

Jeffrey Forter, Umatilla, OR, pro se.

Jacqueline Sadker Kamins, State of Oregon, Samuel A. Kubernick, Department of Justice, Salem, OR, for Defendants.

OPINION AND ORDER

MOSMAN, District Judge.

Pro se plaintiff Jeffrey Forter is an inmate at the Oregon Department of Corrections (“DOC”) and a practicing member of the Christian Identity Faith. Christian Identity is a Christianity-based religion based largely on the supremacy of Caucasians—specifically Northern Europeans. While it is ostensibly peaceful, many of its central tenets are conspicuously racist and anti-Semitic, and some of its followers have construed these tenets as espousing violence.

On March 18, 2010, Mr. Forter filed a Complaint [2] against several DOC employees (collectively, “defendants”), in their individual and official capacities, pursuant to 42 U.S.C. § 1983. On May 2, 2011, he filed an Amended Complaint. (Pl.'s Mot. to File. Am. Compl. [40] Att. 1) (“Pl.'s Amended Compl.”). The Amended Complaint alleges that defendants rejected a box of Christian Identity materials sent to him by the Kingdom Identity Ministries, refused to recognize the Christian Identity religion officially, denied his request for a kosher diet, and refused to provide access to religious facilities for the Christian Identity religion. Mr. Forter claims violations of his rights to free speech, free exercise, equal protection, and due process, all essentially based on the theory that defendants unlawfully singled out the Christian Identity religion. He also challenges the constitutionality of Or. Admin. R. 291–131–0035(2)(j), which allows DOC employees to reject “inflammatory material” mailed to inmates. Finally, he argues the defendants violated his statutory rights under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”). He seeks injunctive relief and damages.

Defendants filed a Motion to Dismiss [58], which concedes that they withheld at least some of the documents sent in a box from the Kingdom Identity Ministries (they withheld the entirety of the box initially; on second review they withheld only select pamphlets). The motion argues that while plaintiff exhausted administrative remedies regarding alleged misconduct pertaining to the rejected box of materials, he failed to exhaust administrative remedies for all of the other alleged misconduct.

Defendants also filed a Motion for Summary Judgment [62] regarding the rejected box of materials, arguing there was neither a constitutional violation nor a RLUIPA violation, individual defendants are entitled to qualified immunity on that claim because their conduct did not violate clearly established law, and to the extent defendants were named in their official capacity the state is entitled to sovereign immunity.

At issue now are both the Motion to Dismiss and the Motion for Summary Judgment. I GRANT the Motion to Dismiss with leave to amend, and I GRANT the Motion for Summary Judgment.

UNENUMERATED 12(B) MOTION TO DISMISS FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES¹

Defendants argue (1) that the DOC regulations provide two forms of administrative remedies, (2) that plaintiff has only exhausted one of those two avenues with respect to his claims resting on withheld mail (i.e., by filing an inmate discrimination complaint and appealing its denial), and (3) that this court should dismiss the remaining claims for failure to exhaust administrative remedies. (Mem. Supp. Def. Mot. Dism. [59] 5).

Procedure and Standard

In the Ninth Circuit, an unenumerated 12(b) motion to dismiss—rather than a motion for summary judgment—is the proper form for resolving a dispute regarding failure to exhaust administrative remedies pursuant to § 1997e(a). Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir.2003). In the exhaustion context, the motion to dismiss forum does not limit a court to the face of the pleadings; the district court may look to evidence beyond the pleadings as needed to determine whether a plaintiff has exhausted administrative remedies. Id. at 1120.

Defendants bear the burden of showing failure to exhaust. Where the available evidence persuades the court that the petitioner has not exhausted available nonjudicial remedies, the proper disposition is dismissal without prejudice. Id.

Analysis

42 U.S.C. § 1997e(a) requires a prisoner to exhaust “[a]ll available remedies ... for all actions brought with respect to prison conditions.” Porter v. Nussle, 534 U.S. 516, 524, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002) (quotations omitted). The sole trigger for this requirement is availability of remedies within the prison system; whether the remedies meet federal standards or are “plain, speedy, and effective” is immaterial. Id. A district court's enforcement of the exhaustion requirement is “mandatory.” Id. In line with that principle, futility does not excuse failure to exhaust. Booth v. Churner, 532 U.S. 731, 741 n. 6, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001).

The evidence currently before the court fulfills defendants' burden to show that administrative remedies were available to Mr. Forter and that he has not exhausted them. Defendants' motion alleges that Mr. Forter did not attempt to pursue or exhaust the prison system's administrative remedies with respect to any claim that rests on one of the following issues: (1) kosher diet access; (2) official recognition of Christian Identity; (3) Christian Identity use of Oregon DOC chapels; (4) baptism by Christian Identity clergy; (5) Christian Identity congregate worship; (6) Christian Identity bible study; (7) Christian Identity religious videos; and (8) Christian Identity volunteers. (Mem. Supp. Def. Mot. Dism. [59] 5).

Mr. Forter does not dispute that an administrative procedure (specifically, a process for filing either grievances or inmate discrimination complaints and appealing decisions thereon) exists. Rather, Mr. Forter's opposition to the Motion to Dismiss advances two arguments, both of which fail on the current record.

Regarding the claims resting on congregant worship, use of DOC chapels, and Bible study, Mr. Forter argues that the remedies would have been futile. (Pl.'s Opp. Def. Mot. Dism. [75] 2). Mr. Forter cites an inapposite case dealing with “effective unavailability.” See Sapp v. Kimbrell, 623 F.3d 813, 822–23 (9th Cir.2010). By contrast to the futility argument, which deals with anticipated efficacy (or lack thereof) of available remedies in bringing about the desired result, “effective unavailability” describes a situation where the procedural channel was available in theory, but was not actually available to the plaintiff due to some error outside of his control. Id. Because that does not describe plaintiff's situation, and because futility does not excuse non-exhaustion, see Booth, 532 U.S. at 741 n. 6, 121 S.Ct. 1819, Mr. Forter's exhaustion argument is without merit.

Regarding the remaining claims, Mr. Forter argues that he did, in fact, exhaust administrative remedies by filing either an “Inmate Discrimination Complaint” or a “grievance” and a subsequent appeal. (Pl.'s Opp. Def. Mot. Dism. [75] 2) (referring to a discrimination complaint); (Aff. of J. Forter [80] 3) (referring to a grievance).² Defendants disagree based on their records, and assert that Mr. Forter provides no evidence to support that claim. (Def. Reply in Supp. Mot. Dism. [85] 2). The evidence on this point is confusing; whether plaintiff pursued any administrative avenues regarding these claims is not clear. Nevertheless, the current record suggests that Mr. Forter has not exhausted administrative remedies; hence dismissal without prejudice is appropriate.

Defendants have provided a declaration from the facility's grievance coordinator as evidence for plaintiff's failure to exhaust. (Decl. of J. Hanson [61] ). Mr. Hanson declares that plaintiff filed seven grievances, none of which pertains to any of the claims whose exhaustion is in dispute. ( Id. at 4–6.). The declaration includes copies of all of these grievances as attachments, and none of these grievances are relevant to any of the claims in Mr. Forter's Amended Petition. Mr. Hanson's declaration is somewhat problematic, because it omits a relevant grievance Mr. Forter appears to have filed. Specifically, attached to Mr. Forter's affidavit is a grievance form that deals with the prison chaplain's failure to recognize Christian Identity in substantially the same ways Mr. Forter alleges his Inmate Discrimination Complaint listed. The grievance is stamped as “received” and “accepted” by the grievance coordinator on April 27, 2011. (Aff. of J. Forter [80] Ex. 2 at 1.). Following that exhibit is a second attachment, which is a response to the grievance, dated May 31, 2011. That response appears not to be a final one: it states in substance that (a) the process of recognizing a religion requires the chaplain to make a determination based on information gathered from the religious organization's proponents, (b) the chaplain requested such information from three leading Christian Identity proponents by mail, and (c) the chaplain was still awaiting any response at the time the grievance response was issued. (Aff. of J. Forter [80] Ex. 3 at 1). No evidence of any further administrative processes appears in the record.

I find that the evidence, albeit muddled, supports defendants' argument that Mr. Forter has not exhausted his administrative remedies. Defendants have produced evidence that Mr. Forter has failed to exhaust administrative remedies. Although that evidence is apparently incomplete, it is still effectively uncontroverted because Mr. Forter's ostensibly contrary evidence still fails to show exhaustion. While his briefing refers to an inmate discrimination complaint and subsequent appeal, the evidence supports only a grievance on which he does not claim...