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Gonzalez v. Berg

United States District Court, D. South Dakota, Southern Division

January 4, 2017

GUADALUPE GONZALEZ, Plaintiff,
v.
J. BERG, R. BENDT, TODD DUNCAN, GREGORY A. KIZZIAH, M. SMITH, STEVE MERTENS, Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS

          KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE

         Plaintiff, Guadalupe Gonzalez, is an inmate at FCI-Sandstone in Sandstone, Minnesota. He filed a pro se civil rights lawsuit under 42 U.S.C. § 1983. Defendants now move to dismiss the complaint under the Prison Litigation Reform Act of 1995 and Federal Rule of Civil Procedure 12(b)(6). Docket 14. For the following reasons, defendants' motion is granted in part and denied in part.

         PROCEDURAL BACKGROUND

         On March 17, 2016, Gonzalez filed a complaint under § 1983 and attached a number of documents. Docket 1. The court screened his complaint under 28 U.S.C. § 1915A, and found that the claims survived screening. Docket 4. The court found that Gonzalez had stated a claim under the Equal Protection Clause and claims of retaliation for engaging in protected activity, retaliatory discipline, and retaliatory transfer. Id.

         Now, defendants move to dismiss. Docket 14. They argue that Gonzalez failed to exhaust his claims, that his claims are barred by the statute of limitations, and that Gonzalez has failed to state a claim upon which relief may be granted. Docket 15. Gonzalez responded[1] to defendants' motion, arguing that he had exhausted his claims, his failure to exhaust should be excused, he was not barred by the statute of limitations, and he stated a claim. Docket 18.

         LEGAL STANDARD

         Rule 12(b)(6) provides for dismissal of a claim if the claimant has failed to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, ‘to state a claim to relief that is plausible on its face.' ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court considers only the materials in the pleadings and exhibits attached to the complaint, drawing on experience and common sense and viewing plaintiff's claim as a whole. Whitney v. Guys, Inc., 700 F.3d 1118, 1128 (8th Cir. 2012) (quotation omitted).

         The court must accept the well-pleaded allegations in the complaint as true and draw all reasonable inferences in favor of the non-moving party. Schriener v. Quicken Loans, Inc., 774 F.3d 442, 444 (8th Cir. 2014). Civil rights and pro se complaints must be liberally construed. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation omitted); Bediako v. Stein Mart, Inc., 354 F.3d 835, 839 (8th Cir. 2004). “If a plaintiff cannot make the requisite showing, dismissal is appropriate.” Abdullah v. Minnesota, 261 F. App'x 926, 927 (8th Cir. 2008); Beavers v. Lockhart, 755 F.2d 657, 663 (8th Cir. 1985).

         DISCUSSION

         I. Exhaustion

         Under the PLRA, “No action shall be brought with respect to prison conditions under section 1983 of this title . . . by a prisoner . . . until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The Supreme Court has interpreted this as mandatory language stating that an inmate may not bring any action “absent exhaustion of available administrative remedies.” Ross v. Blake, 136 S.Ct. 1850, 1856 (2016) (quoting Woodford v. Ngo, 548 U.S. 81, 85 (2006)). Defendants agree that Gonzalez exhausted his equal protection claim concerning the FAR/AIM denial. Therefore, the court will discuss whether Gonzalez exhausted his retaliation claims.

         The Bureau of Prisons has a four-tiered administrative procedure to respond to prisoner grievances. Docket 16 ¶ 7. The first step is a request for an informal resolution (BP-8). Id. ¶ 8. The second step is a formal request for an administrative remedy (BP-9). Id. The third step is an appeal to the regional director (BP-10). Id. The fourth and final step is to file a central office administrative remedy appeal (BP-11). Id.

         A. Retaliation for Filing Grievances

         In its Order Directing Service, the court found that Gonzalez stated a claim that he was retaliated against for filing prison grievances (Administrative Remedy Claims 78574 and 786567) because defendants discriminated against him, reassigned his work detail, and denied him administrative remedy forms. See Docket 4 at 6. Gonzalez did not appeal either grievance to the final stage of the appeals process. In her declaration, Paralegal Specialist for the Consolidated Legal Center Shannon Boldt states that Gonzalez failed to appeal the grievance concerning his work reassignment past the BP-10 level, Docket 16 ΒΆ 33, and the documents attached to Gonzalez's complaint show this failure as well. Docket 1-18. Although defendants do not raise the issue in ...


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