Kritenbrink v. Crawford

• Decision Date: 06 April 2004
• Docket Number: No. CV-N-03-0235-ECR(RAM).,CV-N-03-0235-ECR(RAM).
• Citation: 313 F.Supp.2d 1043
• Parties: Jeffrey KRITENBRINK, and Douglas Leiter, Plaintiffs, v. Jackie CRAWFORD, Rex Reed, Linda S. Hilton, Steven Suwe, Glen Wharton, Danielle Debtwiller, Edgar Miller, and Connie Bisbee, Defendants.
• Court: U.S. District Court — District of Nevada

313 F.Supp.2d 1043

Jeffrey KRITENBRINK, and Douglas Leiter, Plaintiffs, v. Jackie CRAWFORD, Rex Reed, Linda S. Hilton, Steven Suwe, Glen Wharton, Danielle Debtwiller, Edgar Miller, and Connie Bisbee, Defendants.

No. CV-N-03-0235-ECR(RAM).

United States District Court, D. Nevada, Reno, Nevada.

April 6, 2004.

Donald Y. Evans, Reno, NV, for Plaintiffs.

Daniel Wong, Nevada Attorney General's Office, Carson City, NV, for Defendants.

Order

EDWARD C. REED, JR., Senior District Judge.

The order of the court (# 29), dated and filed on March 19, 2004, is amended to read as follows:

This case arises out of the alleged failure of defendants Jackie Crawford, Rex Reed, Linda Hilton, Steven Suwe, Glen Wharton, Danielle Detweiler, Edgar Miller, and Connie Bisbee (collectively "defendants") to provide adequate due process to plaintiffs Jeffrey Kritenbrink ("Kritenbrink") and Douglas Leiter ("Leiter") by allegedly denying plaintiffs the means to challenge their classification as "sexual offenders."¹ Plaintiffs seek monetary damages, declaratory and injunctive relief.

Defendants Jackie Crawford, Rex Reed, Linda Hilton, Steven Suwe, Glen Wharton, and Danielle Detweiler filed a motion to dismiss, or in the alternative, for summary judgment (# 10). Defendants Edgar Miller (# 17) and Connie Bisbee (# 25) joined in the motion. Plaintiffs filed an opposition (# 13) and defendants replied (# 15). Defendants' motion to dismiss, or in the alternative, for summary judgment (# 10) is ripe. We now rule on the motion.

Background

On October 24, 1997, plaintiff Kritenbrink was sentenced to 28 to 120 months incarceration in the custody of the Nevada Department of Corrections ("NDOC") for pleading guilty to felony burglary charges. The NDOC housed Kritenbrink at both the Northern Nevada Correctional Center and the Warm Springs Correctional Center. During his incarceration, the NDOC labeled Kritenbrink as a "sex offender" based upon an arrest in Anchorage, Alaska on August 5, 1977. Kritenbrink's classification as a sex offender allegedly precluded his eligibility for minimum security classification, and thus prevented him from serving in "work camp." Work camp allegedly allows prisoners to receive day-for-day work credits, which could facilitate an early release from prison.

Although Kritenbrink attempted to challenge his classification as a sex offender because the Alaskan authorities dismissed the underlying sex offense charges on September 8, 1977, Kritenbrink claims that the NDOC provided no adequate due process procedures for him to challenge his sex offender classification. Kritenbrink provided copies of the judgment of dismissal of the sex charge and a letter from his former legal counsel that detailed the facts, circumstances, and ultimate dismissal of the sex charge. Although Kritenbrink initiated various attempts to change his classification status — including having his lawyer, Erik Johnson, send a letter to Director Jackie Crawford, having his mother write a letter, and talking with his caseworkers — the NDOC officials did not tell Kritenbrink that a procedure existed to challenge his classification. Eventually, Kritenbrink was paroled on November 12, 2002, before he was able to formally challenge his classification.

Plaintiff Leiter is also an inmate in the custody of the NDOC and is currently housed at the Northern Nevada Correctional Center. The NDOC classifies Leiter as a "sex offender," and, despite Leiter's attempts to challenge his classification, he has allegedly been told that there are no means to challenge his classification.

Since Kritenbrink is a former prisoner and Leiter is a current prisoner, we must analyze their cases under separate legal doctrines. We begin with a short analysis of Leiter's claims.

Exhaustion for Prisoners under the Prison Litigation Reform Act

The Prison Litigation Reform Act ("PLRA"), which governs prisoner suits such as Leiter's, states:

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).

Failure to exhaust administrative remedies under 42 U.S.C. § 1997e is an affirmative defense that should be raised in an unenumerated Rule 12 motion.² Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir.2003). Defendants bear the burden of raising and proving the absence of exhaustion. Id. Although failure to exhaust non-judicial remedies that are not jurisdictional should be treated as a matter of abatement, a court may look beyond the pleadings and decide disputed issues of fact in deciding a motion to dismiss for failure to exhaust non-judicial remedies. Id. at 1119-20. The proper remedy for failure to exhaust a claim is dismissal of that claim without prejudice. Id. at 1120.

Leiter Failed to Exhaust

Defendants claim that Leiter had an available administrative remedy in Administrative Regulation ("AR") 740. The current version of AR 740, which became effective on September 2, 2002, provides that "[i]nmates may use the Inmate Grievance System to resolve addressable inmate claims including, but not limited to personal property, property damage, personal injuries or any other tort claim or matters relating to conditions of institutional life." (AR 740.02, Section 1.2.1, Defs.' Mot. to Dismiss, Ex. B (emphasis added).) The former version of AR 740, which was effective from January, 21, 1992, until September 1, 2002, stated that:

I. Grievability

1. Grievable

The following matters shall be grievable by inmates.

a. The substance, interpretation, and application of policies, rules and procedures of the institution, facility or the Department, including but not limited to classification decisions and property claims.

(Former AR 740, Section V(I)(1)(a), Defs.' Mot. to Dismiss, Ex. A (emphasis added).) Former AR 740 also provided specifically for classification grievance remedies:

J. Remedies

The grievance procedure shall afford a successful grievant a meaningful remedy. Although available remedies may vary among institutions/facilities, [a] reasonable range of meaningful remedies at each institution/facility is necessary. Remedies may include, but are not limited to, the following:

* *

6. Classification grievances

Appropriate and prompt classification action (e.g., transfer, reduction of custody, award of furlough, change of work assignment).

(Former AR 740, Section V(J)(6), Defs.' Mot. to Dismiss, Ex. A.)

The affidavit of Jim Benedetti, who is the Associate Warden of Programs at the Northern Nevada Correctional Center and has twenty-one years of experience at NDOC, states that "[a]n inmate could file an inmate grievance on classifications issues under the former A.R. 740 and can file an inmate grievance under the current A.R. 740." (Aff. of Jim Benedetti, Attach. to Defs.' Mot. to Dismiss.)

Since we can decide disputed issues of fact in deciding whether Leiter exhausted and Leiter presented no evidence to counter the affidavit of Jim Benedetti that an administrative remedy existed, we find that Leiter's claim must fail.³ See Wyatt, 315 F.3d at 1119-20. According to the evidence presented, Leiter had a method to grieve his classification under the former AR 740, and he continues to have an administrative grievance procedure under the current AR 740. Leiter did not file such a grievance. (See Aff. of Rosemary Seals (no classification grievance filed by Leiter at Lovelock Correctional Center) & Aff. Of Jim Benedetti (no classification grievance filed by Leiter at Northern Nevada Correctional Center), Attach. to Defs.' Mot. to Dismiss.) Therefore, Leiter's claim is foreclosed by the exhaustion requirement of the PLRA, and we must dismiss his claim without prejudice.

Exhaustion for Former Prisoners under the PLRA

The plain language of the PLRA provides that "[n]o action shall be brought with respect to prison conditions under [42 U.S.C. Section 1983], 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) (emphasis added). The PLRA explicitly defines a "[p]risoner" as follows:

As used in this section [42 U.S.C. Section 1997e], the term "prisoner" means any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program.

Id. § 1997e(h); see 28 U.S.C. § 1915(h) (same definition of "prisoner" in relation to proceedings in forma pauperis).

Although some courts have held that the PLRA's exhaustion requirement applies to preclude unexhausted claims brought by former prisoners involving prison conditions, see Morgan v. Maricopa County, 259 F.Supp.2d 985, 992 (D.Ariz.2003); Zehner v. Trigg, 952 F.Supp. 1318, 1327 (S.D.Ind.1997), we believe that the plain language of the statute compels us to conclude that the exhaustion requirement applies only to persons who, "at the time they seek to file their civil actions, are detained as a result of being accused of, convicted of, or sentenced for criminal offenses." See Page v. Torrey, 201 F.3d 1136, 1139-40 (9th Cir.2000) (reading the definition of prisoner narrowly from the plain text of the statute and deciding that a person civilly committed to a State Hospital is not a prisoner under the PLRA because his civil commitment was subsequent to and was not part of his conviction).

In broad language that was not completely necessary to decide the issue at hand and was partially dicta, the Page Court relied on the plain language of the statute in stating that "we hold that only individuals who, at the time they seek to file their civil actions, are detained as a result of being accused of, convicted of, or sentenced...