Lawrence G. Wasden Attorney General Of Daho Oscar Klass, Isb #7946 .

Case 1:21-cv-00267-DCN Document 26-2 Filed 10/04/21 Page 3 of 18PLRA’s strict requirement, and the Court should dismiss the claims in his Amended Complaint.Second, Plaintiff has failed to plead a plausible cause of action for a violation of a federally securedright, rendering the claims subject to dismissal under Fed. R. Civ. Pro. 12(b)(6). Plaintiff has alsofailed to make a prima facie case under Idaho’s FERPA. Additionally, given the failure to state afederal claim, this Court should decline to exercise supplemental jurisdiction over the state lawclaim. For these reasons, as explained more fully below, Defendants request that the Court dismissthe Amended Complaint with prejudice.BACKGROUND1Plaintiff is an inmate housed at IMSI, sentenced to death for the murders of Berta Herndonand her nephew Del Herndon. Pizzuto v. Yordy, 947 F.3d 510, 515 (9th Cir. 2019). His convictionand sentences were affirmed by the Idaho Supreme Court. State v. Pizzuto, 119 Idaho 742, 778,810 P.2d 680, 716 (Idaho 1991) (overruled on other grounds by State v. Card, 121 Idaho 425, 825P.2d 1081 (Idaho 1991)). The state court issued a Death Warrant on May 6, 2021, which set June2, 2021, as the date for Plaintiff’s execution. (Dkt. 16, ¶ 71.) The Death Warrant has been stayeduntil conclusion of commutation proceedings related to Plaintiff’s pending commutation petitionon May 18, 2021. (Id., ¶ 72.)IDOC has a standard operating procedure for executions, IDOC SOP 135.02.01.001 (“SOP135”).2 SOP 135 establishes specific procedures for administration of capital punishment inaccordance with state and federal law. SOP 135 was initially adopted on May 18, 1998, under the1For arguments under Rule 12(b)(6) only, the allegations in the Amended Complaint as treated as true. This is not anadmission the allegations are true, or a waiver to contest them in future proceedings.2SOP 135 is available at ion%20Procedures.pdf. The Court maytake judicial notice of SOP 135 pursuant to Fed. R. Evid. 201(b)(2).MEMORANDUM IN SUPPORT OF MOTION TO DISMISS AMENDED COMPLAINT - 3

Case 1:21-cv-00267-DCN Document 26-2 Filed 10/04/21 Page 4 of 18authority delegated by Idaho statutes, including Idaho Code § 19-2716. The current version of SOP135, version 4, was issued on March 30, 2021.3Shortly after the revised SOP 135 issued, on April 9, 2021, Plaintiff filed an InmateConcern Form. Plaintiff specifically identified his issue, “The new protocol puts my spiritual [sic]in the witness gallery before and during my execution, rather than in the execution chamber. I needmy spiritual advisor in the execution chamber by my side before and during the execution to giveme comfort and support. To keep him away violates my religious rights under the FristAmendment, RLUIPA, and similar laws.” Declaration of IMSI Grievance Coordinator TaraYoung, Exh. 1 (“Young Decl.”). Warden Davis responded, advising Plaintiff SOP 135 identifiesthe persons permitted in the execution chamber during the execution. Id.Plaintiff filed a grievance, but his grievance was returned without action. Young Decl.,Exh. 2. Plaintiff properly filed his grievance on April 28, 2021. Id., Exh. 3. Plaintiff repeated theissue verbatim in his grievance. Id., Exhs. 2 and 3. He also proposed a specific solution – “Allowmy spiritual advisor to be present in the execution chamber before and during my execution.” Id.,Exhs. 2 and 3. Warden Davis, as the initial responder, and Deputy Chief of Prisons AmandaGentry, as the reviewing authority, declined to permit Plaintiff’s spiritual advisor in the executionchamber, citing SOP 135. When Plaintiff appealed his grievance, Chief of Prisons Chad Pagedenied his request to have his spiritual advisor present in the execution chamber, but granted reliefrelated to the presence of Plaintiff’s spiritual advisor leading up to the execution. Id., Exh. 3.On June 24, 2021, Plaintiff filed his initial Complaint. (Dkt. 1.) Defendants timely filedtheir Answer. (Dkt. 16.) Plaintiff responded by filing the Amended Complaint. (Dkt. 23.) TheAmended Complaint largely replicates the initial Complaint with two primary differences. In his3SOP 135 must conform with Board of Correction Rule 135. See IDAPA 06.01.01.135.MEMORANDUM IN SUPPORT OF MOTION TO DISMISS AMENDED COMPLAINT - 4

Case 1:21-cv-00267-DCN Document 26-2 Filed 10/04/21 Page 5 of 18initial Complaint, Plaintiff made a single reference to physical contact with his spiritual advisor,see Dkt. 1, ¶ 68, and omitted any request for verbal communication or audible prayer with or fromhis spiritual advisor. In the Amended Complaint, Plaintiff made several averments regardingphysical contact and audible communication. For example: Plaintiff added the language in paragraph 45, which states, “Because IDOC refusesto allow Mr. Kolar’s presence within the execution chamber, IDOC is alsoinfringing on Mr. Pizzuto’s religious beliefs that require that Mr. Kolar be allowedto maintain physical contact with Mr. Pizzuto during the execution until he passesand that Mr. Kolar be allowed to share an audible prayer with Mr. Pizzuto in themoments before the execution commences.” (Dkt. 23, ¶ 45). Plaintiff added some language in his general allegations - “Mr. Pizzuto believesthat Mr. Kolar’s presence in the execution chamber would provide Mr. Pizzuto withspiritual comfort through an audible prayer and holding his hand or putting a handon his shoulder or leg or elsewhere on his body as he faces his own mortality.”Compare Dkt. 1, ¶ 68 with Dkt. 23, ¶ 69 (emphasis added). Plaintiff added similar language in Claim 1, his RLUIPA claim - “The Court shouldprevent Mr. Pizzuto from being executed without his spiritual advisor’s presencein the execution chamber and without the comfort of audible prayer andphysical contact before death.” Compare Dkt. 1, ¶ 89 with Dkt. 23, ¶ 90 (emphasisadded). Plaintiff replaced the phrase “and guidance” with additional allegations “Removing Mr. Kolar from Mr. Pizzuto’s presence hours before the execution andonly allowing Mr. Kolar to witness the execution from the witness room does notconstitute a reasonable alternative to securing the comfort, prayer, and physicalcontact of a spiritual advisor during one’s execution.” Compare Dkt. 1, ¶ 100 withDkt. 23, ¶ 101 (emphasis added). Plaintiff revised his prayer for relief to include a request to enjoin his executionuntil IDOC permitted the presence of his spiritual advisor, as well as audiblecommunication with or from his spiritual advisor and physical contact until hepasses on. Compare Dkt. 1, ¶ 117(b) with Dkt. 23, ¶ 118(b).In summary, the Amended Complaint sets out the three same claims. First, Plaintiff allegesDefendants, in relying on SOP 135, violate his rights to religious exercise under RLUIPA. Second,he contends the same conduct violates his right to Free Exercise under the United StatesConstitution, enforced through 42 U.S.C. § 1983. Finally, Plaintiff claims Defendants infringe onMEMORANDUM IN SUPPORT OF MOTION TO DISMISS AMENDED COMPLAINT - 5

Case 1:21-cv-00267-DCN Document 26-2 Filed 10/04/21 Page 6 of 18his rights under Idaho’s FERPA. For the first time, Plaintiff asserts a spiritual belief that he requiresphysical contact and audible communication with his spiritual advisor in addition to the presenceof his spiritual advisor in the execution chamber.ARGUMENTI.BECAUSE PLAINTIFF DID NOT EXHAUST HIS ADMINISTRATIVE REMEDIES, THE COURTSHOULD DISMISS THE AMENDED COMPLAINT WITHOUT PREJUDICE.A. SUMMARY JUDGMENT STANDARDSummary judgment is appropriate where a party can show that, as to any claim or defense,“there is no genuine dispute as to any material fact and the movant is entitled to judgment as amatter of law.” Fed. R. Civ. P.56(a). One of the principal purposes of the summary judgment rule“is to isolate and dispose of factually unsupported claims or defenses.” Celotex Corp. v. Catrett,477 U.S. 317, 323-24 (1986). Summary Judgment is not “a disfavored procedural shortcut,” but isinstead the “principal tool[] by which factually insufficient claims or defenses [can] be isolatedand prevented from going to trial with the attendant unwarranted consumption of public andprivate resources.” Id. at 327.B. FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES STANDARD“In a typical PLRA case, a defendant will have to present probative evidence – in the wordsof Jones, to ‘plead and prove’ - that the prisoner has failed to exhaust available administrativeremedies .” Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 2014) (citing Jones v. Bock, 549 U.S.199, 204 (2007)). Even though processed in the same manner as summary judgment, exhaustion“should be decided as early as feasible”. Id. at 1170. Exhaustion, analogous to subject matterjurisdiction, personal jurisdiction, venue, and abstention, creates an issue of “judicialMEMORANDUM IN SUPPORT OF MOTION TO DISMISS AMENDED COMPLAINT - 6

Case 1:21-cv-00267-DCN Document 26-2 Filed 10/04/21 Page 7 of 18administration” and should be addressed before reaching the merits of a prisoner’s claim. Id.The exhaustion requirement of the PLRA mandates that “[n]o action shall be brought withrespect to prison conditions under section 1983 of this title, or any other Federal law, by a prisonerconfined in any jail, prison, or other correctional facility until such administrative remedies as areavailable are exhausted.” 42 U.S.C. § 1997e (a). The PLRA’s exhaustion requirement applies toall inmate suits about prison life, whether they involve general or particular circumstances,” Porterv. Nussle, 534 U.S. 516, 532 (2002), including RLUIPA challenges under Section 1983. Fuqua v.Ryan, 890 F.3d 890 F.3d 838, 844 (2018). “There is no question that exhaustion is mandatoryunder the PLRA and that unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S.199, 211 (2007) (citing Porter v. Nussle, 534 U.S. 516, 524 (2002)). The PLRA’s exhaustionrequirement “applies to all prisoners seeking redress for prison circumstances or occurrences.”Porter v Nussle, 534 U.S. 516, 520 (2002). Proper exhaustion is required “even where it mayappear futile.” Nunez v. Duncan, 591 F.3d 1217, 1231 (9th Cir. 2010) (J. Ikuta, dissenting in part(quoting Booth v. Churner, 532 U.S. 731, 741 (2001)). As intended by the PLRA, all motionsaddressing exhaustion of administrative remedies, including “disputed factual questions relevantto exhaustion[,] should be decided at the very beginning of the litigation.” Albino v. Baca, 747F.3d 1162, 1171 (9th Cir. 2014) (en banc).The Supreme Court has identified the purposes of the exhaustion requirement:First, exhaustion protects “administrative agency authority.” Exhaustiongives an agency an opportunity to correct its own mistakes with respect to theprograms it administers before it is [hailed] into federal court,” and it discourages“disregard of [the agency's] procedures.Second, exhaustion promotes efficiency. Claims generally can be resolvedmuch more quickly and economically in proceedings before an agency than inlitigation in federal court. In some cases, claims are settled at the administrativelevel, and in others, the proceedings before the agency convince the losing partynot to pursue the matter in federal court.MEMORANDUM IN SUPPORT OF MOTION TO DISMISS AMENDED COMPLAINT - 7

Case 1:21-cv-00267-DCN Document 26-2 Filed 10/04/21 Page 8 of 18Woodford v. Ngo, 548 U.S. 81, 89 (2006) (internal citations and quotations omitted).IDOC has adopted an administrative grievance process which was readily available toPlaintiff at all times relevant to this lawsuit. IDOC Standard Operating Procedure 316.02.01.001,version 3.9 (“Grievance SOP”) sets out the IDOC inmate grievance procedure. Young Decl., ¶ 3.The IDOC grievance process has three components: concern, grievance, and appeal. Id., ⁋ 4. Asexplained in the Grievance SOP:The grievance and informal resolution process begins with the offender making anattempt to discuss with a staff member a problem or action that affects either theoffender or the offender population as a whole. If unable to resolve the issue, theoffender may then submit an Offender Concern Form. If the problem cannot besolved by submitting an Offender Concern Form, the offender can then submit agrievance using the Grievance/Appeal s%20Offender.pdf)(Grievance SOP, p.3). An offender must complete all three steps to exhaust the IDOC informalresolution and grievance process.As shown below, Plaintiff failed to exhaust any of his three claims – RLUIPA, FreeExercise or FERPA.C. BECAUSE PLAINTIFF DID NOT REQUEST PHYSICAL CONTACT OR AUDIBLECOMMUNICATION FROM OR WITH HIS SPIRITUAL ADVISOR IN HIS GRIEVANCE, HEDID NOT EXHAUST HIS ADMINISTRATIVE REMEDIES REGARDING ANY OF HISCLAIMS.Plaintiff failed to exhaust his administrative remedies for all three of his claims. On April9, 2021, IMSI received an Offender Concern form from Plaintiff with the following issuestatement:The new protocol puts my spiritual [sic] in the witness gallery before and during myexecution, rather than in the execution chamber. I need my spiritual advisor in theexecution chamber by my side before and during the execution to give me comfortand support. To keep him away violates my religious rights under the FirstMEMORANDUM IN SUPPORT OF MOTION TO DISMISS AMENDED COMPLAINT - 8

Case 1:21-cv-00267-DCN Document 26-2 Filed 10/04/21 Page 9 of 18Amendment, RLUIPA, and similar laws.Young Decl., Exh. 1.Warden Davis responded, informing Plaintiff IDOC would follow SOP 135.02.01.001,which does not permit a spiritual advisor (or anyone else not specifically approved and listed inSOP 135) to be present in the execution chamber. Id. Plaintiff then submitted a Grievance/AppealForm, using virtually the same wording as in the Concern Form. Id., Exh. 3. Warden Davis onceagain responded; his response was approved by Deputy Chief of Prisons Amanda Gentry. Id.Plaintiff appealed the response, and Chief of Prisons Chad Page affirmed the decision to deny therequest for the presence of the spiritual advisor in the execution chamber but granted Plaintiffadditional access to his spiritual advisor before entering the execution chamber. Id. Thus the 2021grievance was fully processed. Neither the grievance or the appeal was rejected or otherwisereturned by IDOC for being over the permitted length or attaching documents to the concern orgrievance forms, or otherwise not conforming with the Grievance SOP.In his concern form and in his grievance, Plaintiff put IDOC on notice that he sought thepresence of his spiritual advisor in the execution chamber to provide him with comfort and support.Young Decl., Exhs. 1 and 3. Although Plaintiff cited RLUIPA and the Free Exercise Clause, heonly referenced “religious rights” in a bare and conclusory manner. Id. He did not indicate hisrequest was based on a religious belief or otherwise served a specific religious need. Anyone couldprovide comfort and support to a condemned person in a secular manner. Nothing in the informalor formal grievance procedure advised the IDOC of a specific claim of religious exercise.Further, review of the 2021 Grievance demonstrates Plaintiff did not mention any concernregarding or specifically request physical contact or audible communication from or with hisspiritual advisor. Plaintiff did not place these specific concerns and requests before the IDOC forconsideration. He simply asked for the presence of his spiritual advisor at his side before andMEMORANDUM IN SUPPORT OF MOTION TO DISMISS AMENDED COMPLAINT - 9

Case 1:21-cv-00267-DCN Document 26-2 Filed 10/04/21 Page 10 of 18during his execution to provide comfort and support. Young Decl., Exhs. 1 and 3. Exhaustion onone issue will not serve to exhaust administrative remedies for a different issue. See, e.g., Sheltrav. Christensen, et al., 2021 WL 1792054, *3 (D.Idaho, May 5, 2021) (reconsideration deniedSeptember 14, 2021) (grievance regarding threats and extortion related to a potential attack did notexhaust claims regarding failure to protect against a completed assault).No valid reason excuses Plaintiff’s failure to engage in the IDOC grievance procedureregarding the entirety of his issues. Young Decl., ⁋ 15. Plaintiff had reason to know about hisspiritual needs prior to submitting the 2021 Grievance. In fact, Plaintiff was solely and uniquelypositioned to identify his spiritual needs regarding his execution. The Amended Complaint allegesthat Plaintiff has a years-long relationship with his spiritual advisor, Dkt. 23, ¶¶ 27-33, and hisspiritual advisor has intended to be present before and during Plaintiff’s execution “for years”, id.,¶ 39. Therefore, Plaintiff had time to grieve his specific concerns and requests related to hisspiritual advisor in his 2021 grievance or a separate, subsequent grievance.Plaintiff failed to provide the IDOC with an adequate opportunity to review Plaintiff’srequest for the presence of his spiritual advisor in the execution chamber in the context of areligious need or weigh the security risks considering Plaintiff’s protected interests. Plaintiff neverraised his requests for physical contact and audible communication from or with his spiritualadvisor. Consistent with the limited nature of his concern and grievance, the IDOC deniedPlaintiff’s simple request for the presence of his spiritual advisor in the execution chamber.II.BECAUSE PLAINTIFF HAS FAILED TO ALLEGE PLAUSIBLE VIOLATIONS OF FEDERALLYSECURED RIGHTS AND SUPPLEMENTAL JURISDICTION IS NOT APPROPRIATE, THE COURTSHOULD DISMISS THE AMENDED COMPLAINT WITH PREJUDICE.Plaintiff filed this lawsuit under RLUIPA, the Free Exercise Clause of the United StatesConstitution through 42 U.S.C. § 1983, and Idaho’s FERPA. To survive a Rule 12(b)(6) motionMEMORANDUM IN SUPPORT OF MOTION TO DISMISS AMENDED COMPLAINT - 10

Case 1:21-cv-00267-DCN Document 26-2 Filed 10/04/21 Page 11 of 18to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claimfor relief that is plausible on its face.’ A claim has facial plausibility when the plaintiff pleadsfactual content that allows the court to draw the reasonable inference that

ATTORNEY GENERAL OF DAHO OSCAR KLAAS, ISB #7946 Lead Deputy Attorney General, Idaho Department of Correction KRISTINA M. SCHINDELE, ISB #6090 Deputy Attorneys General, Idaho Department of Correction 1299 North Orchard St., Suite 110 Boise, Idaho 83706 Telephone: (208) 658-2097 Facsimile: (208) 327-7485 E-mail: oklaas@idoc.idaho.gov