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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 36856

TODD ALLAN BUTTERS,

Plaintiff-Appellant,

v.

PHILLIP VALDEZ, DANIEL PRADO, 

JOEL VANCE YOUNG, FERMIN 

VILLIARREAL, SHANE JEPSEN, BRENT 

ARCHIBALD, DANIEL CHANEY, BRIAN

DOSER, JUSTIN ACCOSTA, SARA FINK, 

FLEMMING GREEN, BRIAN 

TITSWORTH, C/O McCALL, JOHN and 

JANE DOES I-VI, and their successors in 

office, sued in their individual and official 

capacities,

Defendants-Respondents.

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2010 Opinion No. 67

Filed: September 30, 2010

Stephen W. Kenyon, Clerk

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada

County. Hon. Darla S. Williamson, District Judge. 

Order granting motion for summary judgment, affirmed.

Todd A. Butters, Boise, pro se appellant. 

Kirtlan G. Naylor of Naylor & Hales, P.C., Boise, for respondents. 

________________________________________________

GUTIERREZ, Judge

Todd Allan Butters appeals from the district court‟s grant of summary judgment in favor 

of the defendants-respondents (“defendants”) on the basis that he did not exhaust his 

administrative remedies. We affirm.

I.

FACTS AND PROCEDURE

Butters is incarcerated at the Idaho Correctional Center (ICC) under the jurisdiction of 

the Idaho Department of Correction (IDOC). He claims during his incarceration, on October 5, 
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2007, he was assaulted by other inmates due to his status as a sex offender. He also claims that a 

second assault occurred ten days later, on October 15. On October 30, 2007, Butters submitted 

two separate concern forms1to defendants Tammy McCall and Sara Fink--both referencing only 

the October 5 incident. Butters also asserts that he submitted a grievance form on November 10, 

2007, again complaining of the October 5 incident; however, ICC claims to have no record of the 

grievance and the form Butters presented to the district court is not signed or dated by an ICC 

staff member as having been received. 

On October 1, 2008, almost a year later, Butters submitted another concern form to 

defendant Brent Archibald, complaining of the October 5, 2007, assault, and for the first time, 

mentioning the October 15 assault. Archibald responded, indicating that he did not find enough 

evidence to determine who participated in the assault. Six days later, Butters submitted another 

concern form to Archibald, reiterating the same complaints as the October 1 form. Archibald 

responded by referencing his earlier response. 

On October 20, 2008, Butters submitted a grievance appeal form, complaining of the two 

October 2007 assaults and mentioning that he had filled out concern forms in both October 2007 

and October 2008. He did not mention submitting a November 2007 grievance form. The ICC 

Grievance Coordinator, Jennifer Gardner, responded to the grievance appeal, indicating that it 

had no merit as it was untimely, since the alleged assaults had occurred over a year earlier. On 

October 22, Butters submitted a second grievance appeal form, reiterating his contentions, which 

was again denied as being untimely. 

On April 10, 2009, Butters filed a civil action against various employees of ICC 

(defendants), claiming they had failed to prevent him from being harmed and had not taken 

action to alleviate the future risk of harm he faces as the result of his status as a sex offender.

The defendants moved for summary judgment, which the district court granted on the

ground that Butters had failed to exhaust his administrative remedies before filing his civil 

action. Butters filed a motion to reconsider, which the court also denied. Butters now appeals 

the grant of the defendants‟ motion for summary judgment on the basis that he did not exhaust 

his administrative remedies. 

 

1 As will be discussed in detail below, ICC‟s grievance process consists of three steps: 

(1) submission of a concern form, (2) submission of a grievance form, and (3) submission of a 

grievance appeal form. 
3

II.

ANALYSIS

Butters contends that the district court erred in granting summary judgment in favor of 

the defendants, specifically asserting that the court erred in determining that he had failed to fully 

exhaust his administrative remedies. Defendants respond that the district court correctly

determined that Butters failed to exhaust his administrative remedies prior to filing his civil 

action because he failed to submit a timely concern or grievance form for either the October 5 or 

October 15 assaults as required by ICC‟s grievance policy. 

A. Summary Judgment

We first note that summary judgment under Idaho Rule of Civil Procedure 56(c) is proper 

only when there is no genuine issue of material fact and the moving party is entitled to judgment 

as a matter of law. On appeal, we exercise free review in determining whether a genuine issue of 

material fact exists and whether the moving party is entitled to judgment as a matter of law. 

Edwards v. Conchemco, Inc., 111 Idaho 851, 852, 727 P.2d 1279, 1280 (Ct. App. 1986). When 

assessing a motion for summary judgment, all controverted facts are to be liberally construed in 

favor of the nonmoving party. Furthermore, the trial court must draw all reasonable inferences 

in favor of the party resisting the motion. G & M Farms v. Funk Irrigation Co., 119 Idaho 514, 

517, 808 P.2d 851, 854 (1991); Sanders v. Kuna Joint Sch. Dist., 125 Idaho 872, 874, 876 P.2d 

154, 156 (Ct. App. 1994).

The party moving for summary judgment initially carries the burden to establish that 

there is no genuine issue of material fact and that he or she is entitled to judgment as a matter of 

law. Eliopulos v. Knox, 123 Idaho 400, 404, 848 P.2d 984, 988 (Ct. App. 1992). The burden 

may be met by establishing the absence of evidence on an element that the nonmoving party will 

be required to prove at trial. Dunnick v. Elder, 126 Idaho 308, 311, 882 P.2d 475, 478 (Ct. App. 

1994). Such an absence of evidence may be established either by an affirmative showing with 

the moving party‟s own evidence or by a review of all the nonmoving party‟s evidence and the 

contention that such proof of an element is lacking. Heath v. Honker’s Mini-Mart, Inc., 134 

Idaho 711, 712, 8 P.3d 1254, 1255 (Ct. App. 2000). Once such an absence of evidence has been 

established, the burden then shifts to the party opposing the motion to show, via further 

depositions, discovery responses or affidavits, that there is indeed a genuine issue for trial or to 
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offer a valid justification for the failure to do so under I.R.C.P. 56(f). Sanders, 125 Idaho at 874, 

876 P.2d at 156. 

The United States Supreme Court, in interpreting Federal Rule of Civil Procedure 56(c), 

which is identical in all relevant aspects to I.R.C.P. 56(c), stated:

In our view, the plain language of Rule 56(c) mandates the entry of summary 

judgment, after adequate time for discovery and upon motion, against a party who 

fails to make a showing sufficient to establish the existence of an element 

essential to that party‟s case, and on which that party will bear the burden of proof 

at trial. In such a situation, there can be “no genuine issue as to any material 

fact,” since a complete failure of proof concerning an essential element of the 

nonmoving party‟s case necessarily renders all other facts immaterial. The 

moving party is “entitled to judgment as a matter of law” because the nonmoving 

party has failed to make a sufficient showing on an essential element of her case 

with respect to which she has the burden of proof. 

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) (citations omitted). The language and 

reasoning of Celotex has been adopted in Idaho. Dunnick, 126 Idaho at 312, 882 P.2d at 479.

The interpretation of a statute is an issue of law over which we exercise free review. 

Corder v. Idaho Farmway, Inc., 133 Idaho 353, 358, 986 P.2d 1019, 1024 (Ct. App. 1999). 

When interpreting a statute, we will construe the statute as a whole to give effect to the 

legislative intent. George W. Watkins Family v. Messenger, 118 Idaho 537, 539-40, 797 P.2d 

1385, 1387-88 (1990); Corder, 133 Idaho at 358, 986 P.2d at 1024. The plain meaning of a 

statute will prevail unless clearly expressed legislative intent is contrary or unless plain meaning 

leads to absurd results. Messenger, 118 Idaho at 540, 797 P.2d at 1388; Corder, 133 Idaho at 

358, 986 P.2d at 1024.

The statute implicated herein states:

Unless a petitioner who is a prisoner establishes to the satisfaction of the 

court that he is in imminent danger of serious physical injury, no petition for writ 

of habeas corpus or any other civil action shall be brought by any person confined 

in a state or county institution, or in a state, local or private correctional facility, 

with respect to conditions of confinement until all available administrative 

remedies have been exhausted. . . .

Idaho Code § 19-4206(1) (emphasis added).
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At the time of the alleged incidents, ICC followed the same grievance procedures as 

IDOC. IDOC Directive No. 316.02.01.001, in effect at the time of the alleged incidents,2set 

forth a grievance process which could be utilized for complaints regarding all policies, 

conditions of confinement, actions by employers, actions by other inmates, and incidents 

occurring within the jurisdiction of ICC that affect the inmate personally. 

The relevant portions of Directive No. 316.02.01.001 were as follows:

05.00.00. PROCEDURE

The offender grievance process is a three-step process consisting of the 

Concern Form . . . the Grievance Form . . . , and the grievance appeal. 

. . . .

05.02.01 Offender Concern Form

An offender shall try to solve an issue or problem informally by using a 

Concern Form before filing a grievance.

. . . Staff should respond within seven (7) working days of receiving and 

Offender Concern Form.

05.02.02. Offender Grievance Form

If the issue cannot be solved informally, the offender may obtain a 

grievance form from the unit staff.

The grievance shall be filed within fifteen (15) days of the incident or 

problem that is the basis of the grievance. The reviewing authority may extend 

the time limit for up to sixty (60) days. 

. . . . 

. . . Steps taken to solve the issue shall be documented on the Offender 

Concern Form and attached to the grievance.

. . . .

If the grievance is correctly filled out, the grievance shall be assigned to 

the most applicable staff, but not the same staff who responded to the concern. . . .

. . . .

05.03.00. Appeal Process

If the offender is not satisfied with the reviewing authority‟s response, the 

offender may appeal by returning the original (white) copy of the grievance to the 

grievance coordinator. The appeal must be filed within ten (10) days of the 

reviewing authority‟s response. . . . 

Gardner, ICC‟s Grievance Coordinator, averred that upon completion of all three steps--the 

offender concern form, the grievance form, and the grievance appeal--the offender grievance 

process is considered exhausted.

 

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Specifically, this directive was in effect between September 16, 2004, and November 28, 

2007. 
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On this basis, the district court concluded that despite Butters‟ contention that he had 

complied with ICC‟s grievance process and had thus exhausted the administrative remedies 

available to him, he had not done so as:

[t]here is no evidence that Plaintiff filed a timely grievance in regard to the 

October 5, 2007 assault incident. To the extent that an Offender Concern Form 

may constitute a grievance, Plaintiff did not file a grievance until at least October 

30, 2007, twenty-five days after the alleged incident. The actual Grievance Form 

was not filled out until more than a month later on November 10, 2007. None of 

these forms, if they were filed, were timely filed based on the dates that they were 

signed by Plaintiff.

In addition, there is no evidence that Plaintiff filed a timely grievance in 

regard to the October 15, 2007 assault incident. The two concern forms that were 

signed on October 30, 2007, within fifteen days of this alleged incident, only refer 

to the October 5, 2007 incident and not the October 15, 2007 incident. The first 

time Plaintiff filed a concern form with respect to the October 15, 2007 incident 

was almost a year later on October 1, 2008. 

(citations omitted).

Assuming that the concern forms filed by Butters could be considered the requisite 

grievance forms under the policy, we are faced with the issue of whether, as the district court 

concluded here, the fact that a plaintiff‟s grievance form was untimely filed constituted a failure 

to exhaust administrative remedies under I.C. § 19-4206(1).3 This is a matter of first impression 

in Idaho. 

As the defendants point out, federal law contains an exhaustion requirement similar to 

that found in I.C. 19-4206(1) in the Prison Litigation Reform Act of 1995 (PLRA) which states 

that “[n]o action shall be brought with respect to prison conditions under [42 U.S.C.A. § 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.A. § 1997e(a). 

 

3 By engaging in an analysis based upon filing of a grievance form, we do not hold that a 

concern form may be properly considered to be a grievance form. Clearly, the procedure 

contemplated the processing of three steps, a concern form, a grievance form and a grievance 

appeal form. We note, too, that while, as Butters argues, the procedure did not set an express 

deadline for filing a concern form, the procedure contemplated the filing and processing of a 

concern form in advance of the filing and processing of the grievance form, which grievance 

form must have been filed, under the procedures at issue in this case, within fifteen days of the 

incident. In fact, the concern form, indicating the steps taken to informally resolve the issue, 

must have been attached to the grievance form.
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Thus, we turn to federal case law to assist in interpreting the exhaustion requirement of Idaho‟s 

statute. See Curlee v. Kootenai County Fire & Rescue, 148 Idaho 391, 396, 224 P.3d 458, 463 

(2008) (noting that when confronted with matters of first impression involving Idaho statutes we 

may glean insight from the interpretations of sister jurisdictions concerning similar or identical 

statutes). 

In Woodford v. Ngo, 548 U.S. 81, 83 (2006), the United States Supreme Court examined 

whether a prisoner can satisfy the PLRA‟s exhaustion requirement by filing an untimely or 

otherwise procedurally defective administrative grievance or appeal. Id. There, a state prisoner 

was allegedly prohibited from participating in certain prison programs, including a variety of 

religious activities. Approximately six months after the restriction was imposed, the prisoner 

filed a prison grievance challenging that action. The grievance was rejected by prison officials 

as untimely because it was not filed within fifteen working days of the action being challenged.

 In examining whether the filing of a procedurally defective grievance form satisfied the 

exhaustion requirement, the Court first noted that the purpose of the exhaustion doctrine is 

threefold. Woodford, 548 U.S. at 93. It “attempts to eliminate unwarranted federal-court 

interference with the administration of prisons, and thus seeks to „affor[d] corrections officials 

time and opportunity to address complaints internally before allowing the initiation of a federal 

case,‟” is “intended to reduce the quantity” of prisoner lawsuits, and is meant to “improve the 

quality of prisoner suits.” Id. 

The Supreme Court, deciding that the filing of a procedurally defective grievance did not 

satisfy the exhaustion requirement, stated that “[p]roper exhaustion demands compliance with an 

agency‟s deadlines and other critical procedural rules because no adjudicative system can 

function effectively without imposing some orderly structure on the course of its proceedings.”

Id. at 90-91. The Court therefore indicated that the prisoner‟s claim should be dismissed, as 

failure to exhaust administrative remedies must carry a sanction in order to avoid becoming a

“toothless” requirement. Id. at 95. 

We find this reasoning persuasive and conclude the exhaustion requirement under I.C. 

§ 19-4206(1) demands that the procedural and filing deadlines of a prison‟s administrative 

remedy process be complied with. Here, Butters does not dispute the district court‟s conclusion 

that he failed to file a timely grievance form as to both the October 5 and October 15 alleged 
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altercations. However, he advances several arguments as to why the court should still have 

found that he exhausted administrative remedies as required by the statute. 

Initially, Butters contends that the defendants did not respond to his filing grievance 

forms and therefore waived their ability to rely on the exhaustion doctrine as a defense. In 

granting summary judgment in favor of the defendants, the court responded to this argument, 

noting that the issue of whether Butters received a response to his filed grievance forms is only 

relevant if there was a timely grievance form filed--in other words, the defendants were not 

required to respond to a procedurally defective grievance form. We implied as much in Drennon 

v. Idaho State Corr. Inst., 145 Idaho 598, 181 P.3d 524 (Ct. App. 2007), where, on appeal, the 

inmate plaintiff alleged that he had submitted several concern forms to prison officials as part of 

the administrative grievance process and then claimed that prison officials had never responded 

to any of his forms and therefore, he was not required to have proceeded with the exhaustion 

process. However, the state pointed to evidence showing that the plaintiff had not properly 

followed the grievance policy in submitting the necessary forms. On this basis, we concluded 

that because the plaintiff had not filed the proper grievance forms or appeal documentation, he 

had failed to show administrative exhaustion, regardless of whether prison officials had 

responded to the inmate‟s improperly filed complaints. Id. at 603-04, 181 P.3d at 529-30. 4

Butters also contends that he was unable to file timely grievance forms because he was 

placed in administrative segregation following the alleged assaults and was not provided with the 

proper forms until October 30, 2007. The defendants contend this allegation is “not only 

contradictory with his previous statements and factually incorrect, it is also inadmissible.” 

As the exhaustion statute explicitly provides, a plaintiff must only exhaust available

administrative remedies. I.C. § 19-4206(1). However, even if we were to hold that a lack of 

access to the correct forms could render the ICC‟s administrative grievance procedures 

unavailable to Butters, he did not produce admissible evidence to withstand summary judgment 

on this claim. 

 

4 We note that in support of his argument, Butters cites several cases where courts have 

held that prisoners satisfied the exhaustion requirement if they did not receive a response to their 

grievance from prison officials. However, the cases he cites involved a lack of response to a 

validly filed grievance--which is distinguishable from the case here where the grievances were 

clearly untimely filed. 
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If a motion for summary judgment is supported by a particularized affidavit, the opposing 

party may not rest upon bare allegations or denials in his pleadings. I.R.C.P. 56(e). See also 

Verbillis v. Dependable Appliance Co., 107 Idaho 335, 337, 689 P.2d 227, 229 (Ct. App. 1984). 

The nonmoving party must submit more than just conclusory assertions that an issue of material 

fact exists to withstand summary judgment--he must set forth, by affidavit or deposition,

“specific facts” showing a genuine issue. I.R.C.P. 56(e); Finholt v. Cresto, 143 Idaho 894, 896-

97, 155 P.3d 695, 697-98 (2007). A mere scintilla of evidence or only slight doubt as to the facts 

is not sufficient to create a genuine issue of material fact for the purposes of summary judgment. 

Id. at 897, 155 P.3d at 698. If a party does not so respond, summary judgment, if appropriate, 

shall be granted. I.R.C.P. 56(e). 

Here, Butters did not raise the allegation that he was prevented from accessing the proper 

forms in his initial complaint or in his affidavit supporting his opposition to the defendants‟ 

summary judgment motion and accompanying affidavit. He first mentioned the allegation at a 

hearing on the defendants‟ motion for summary judgment and continues to assert it on appeal. 

As the defendants point out, however, this proves problematic in that a nonmoving party is not 

allowed to rest upon bare allegations or denials, but must set forth by affidavit specific facts 

showing that there is a genuine issue for trial. It is clear that the mere fact that Butters raised the 

issue--which consisted of merely conclusory allegations--verbally at the summary judgment 

hearing, is not sufficient to establish a genuine issue of material fact. See I.R.C.P. 56(e). Accord 

Goodman v. Lothrop, 143 Idaho 622, 627, 151 P.3d 818, 823 (2007) (holding, in response to 

plaintiff‟s argument that mediation agreement should not be enforced because it was entered 

under duress, that such argument was conclusory, was not supported by facts, and was 

insufficient to raise a genuine issue of fact precluding summary judgment); Stafford v. Weaver, 

136 Idaho 223, 225, 31 P.3d 245, 247 (2001) (noting that plaintiff must have presented more 

than just conclusory allegations and a scintilla of evidence to raise a genuine issue of fact). 

In Drennon, we addressed a somewhat similar issue where the plaintiff insisted that he 

had raised a genuine issue of fact as to whether he had been prevented from exhausting 

administrative remedies by presenting evidence that he had been threatened with retaliation if he 

completed the prison grievance procedures. We noted, however, that Drennon had not pointed to 

evidence that such was the case with regard to any claims in his amended complaint; rather he 

cited to averments in his amended complaint and affidavits indicating that prison officials had 
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made generalized threats toward him for filing concern forms and attempting to represent other 

inmates. For example, we noted, “Drennon vaguely averred in his amended complaint that a 

prison official told Drennon that writing concern forms would cause „problems‟ for Drennon.” 

Drennon, 145 Idaho at 604, 181 P.3d at 530. We concluded, however, that the averments cited 

by Drennon were insufficient to show that he was prevented from exhausting administrative 

remedies before filing the action, and therefore he did not raise a genuine issue of fact as to 

whether the defendants rendered the administrative grievance process unavailable to him. Id. 

Accordingly, we concluded the district court properly granted summary judgment for the 

defendants because there was no genuine issue of material fact as to whether Drennon exhausted 

the available administrative remedies prior to filing his amended complaint. Id. 

In Drennon, unlike this case, the plaintiff actually referred to averments, and this Court 

still found that he failed to raise a genuine issue of material fact as to whether the defendants had 

rendered the administrative grievance process unavailable to him. Here, Butters refers only to 

conclusory allegations, not supported by evidence in an affidavit, which are insufficient to 

survive dismissal under summary judgment.

Because Butters did not file timely grievance forms with regard to either alleged assault

(and thus did not properly follow the grievance appeal process), we conclude that the district 

court did not err in granting summary judgment in favor of the defendants on the ground that 

Butters did not exhaust the available administrative remedies as required by I.C. § 19-4206(1). 

B. Attorney Fees and Costs

The defendants request attorney fees on appeal pursuant to Idaho Code § 12-121 and 

Idaho Appellate Rule 41. Such an award may be granted to the prevailing party if the court is 

left with the abiding belief that the appeal was brought or defended frivolously, unreasonably, or 

without foundation. Drennon, 145 Idaho at 604, 181 P.3d at 530. The defendants argue such is 

the case here because the facts definitively establish that Butters did not exhaust his 

administrative remedies where it is undisputed that he did not submit timely grievances for either 

the October 5 or the October 15 assault. The defendants contend that Butters has “failed to 

produce any evidence suggesting that he complied with the simple and well-established mandate 

set forth” in the statute, but he “continues to pursue his frivolous claims with conclusory 

allegations and evolving explanations.” 
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As we indicated above, the evidence presented to the district court clearly indicated that 

Butters had not filed timely grievances with regard to either alleged assault. However, we also 

indicated that the consequence of untimeliness with regard to the exhaustion requirement of I.C. 

§ 19-4206(1) is a matter of first impression in Idaho. In addition, Butters asserted several 

reasons why the court should not have concluded that he failed to exhaust administrative 

remedies, despite the fact that his forms were untimely, and while we ultimately concluded that 

none had merit, we cannot say they were pursued frivolously or unreasonably. In addition, while 

they may have been without merit, whether to award attorney fees is within the discretion of this 

Court and we exercise that discretion by not awarding attorney fees in this case. See Drennon, 

145 Idaho at 604, 181 P.3d at 530 (exercising discretion to deny attorney fees despite the 

recognition that the plaintiff‟s arguments on appeal might be deemed frivolous, unreasonable, or 

without foundation). 

Costs incurred in defending against this appeal, however, are awarded as a matter of 

course to the defendants because they are prevailing parties. See I.A.R. 40(a).

III.

CONCLUSION

The district court did not err in granting the defendants‟ motion for summary judgment 

on the basis that Butters did not exhaust his administrative remedies before filing a civil suit. 

Accordingly, the order of the district court granting the defendants‟ motion for summary 

judgment is affirmed. We do not award attorney fees to the defendants as the prevailing party, 

but do award costs. 

Judge GRATTON and Judge MELANSON CONCUR.