United States District Court, D. South Dakota, Southern Division
ORDER GRANTING IN PART AND DENYING IN PART MOTION TO
E. SCHREIER UNITED STATES DISTRICT JUDGE
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.
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
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 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.
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)
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).
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.
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.
Retaliation for Filing Grievances
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 ¶ 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 ...