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Roshone v. Peters

United States District Court, D. Oregon

September 12, 2014



PAUL PAPAK, Magistrate Judge.

Plaintiff pro se Andrew Paul Roshone filed this action in forma pauperis against defendants Colette Peters, SRCI Dental, and Mark Nooth (collectively, "defendants"), as well as fictitiously-named defendant John Doe, on May 20, 2013. In three separate claims, Roshone alleges defendants' liability under 42 U.S.C. § 1983 for the violation of his Eighth Amendment rights in connection with defendants' refusal to provide him with toothpaste free of charge, for defendants' six-month delay in providing him with necessary dental care, and for defendants' provision to him of baking soda in lieu of toothpaste.[1] This court has federal-question jurisdiction over Roshone's claims pursuant to 28 U.S.C. § 1331.

Now before the court is defendants' motion (#49) for summary judgment. I have considered the motion and all of the papers and pleadings on file. For the reasons set forth below, Roshone's first and third Eighth Amendment claims (respectively premised on defendants' failure to provide him with toothpaste free of charge and provision to him of baking soda for personal-hygiene purposes) are dismissed slice sponte in their entirety for failure to state a claim, defendants' motion is consequently denied as moot to the extent it addresses Roshone's first and third claims for relief, and defendants' motion is granted as to Roshone's second claim for relief (premised on delay in the provision of dental care).


Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A party taking the position that a material fact either "cannot be or is genuinely disputed" must support that position either by citation to specific evidence of record "including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials, " by showing that the evidence of record does not establish either the presence or absence of such a dispute, or by showing that an opposing party is unable to produce sufficient admissible evidence to establish the presence or absence of such a dispute. Fed.R.Civ.P. 56(c). The substantive law governing a claim or defense determines whether a fact is material. See Moreland v. Las Vegas Metro. Police Dep't, 159 F.3d 365, 369 (9th Cir. 1998).

Summary judgment is not proper if material factual issues exist for trial. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 318, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995), cert. denied, 116 S.Ct. 1261 (1996). In evaluating a motion for summary judgment, the district courts of the United States must draw all reasonable inferences in favor of the nonmoving party, and may neither make credibility determinations nor perform any weighing of the evidence. See, e.g., Lytle v. Household Mfg., Inc., 494 U.S. 545, 554-55 (1990); Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150 (2000).


I. The Parties

Plaintiff Roshone is an incarcerated prisoner housed at all material times at either the Eastern Oregon Correctional Institution ("EOCI") or the Snake River Correctional Institution ("SRCI").

Defendant Peters is the Director of the Oregon Department of Corrections. Defendant "SRCI Dental" is apparently intended to refer to an administrative department of SRCI. Defendant Mark Nooth is the Superintendent of SRCI. Defendant John Doe is an unidentified employee of EOCI or of SRCI employed in an unspecified capacity.

II. Material Facts[2]

Roshone was housed at either EOCI or at SRCI at all times material to his claims. At both institutions, Roshone had available to him a three-level grievance procedure consistent with the regulations set forth in Chapter 292, Division 109 of the Oregon Administrative Rules.

Pursuant to the EOCI and SRCI grievance procedures and applicable Oregon Administrative Rules, "[i]f an inmate is unable to resolve an issue through informal communications, [the] inmate may seek resolution of the issue by submitting a written grievance using the department's approved inmate grievance form (CD 117)." OAR-291-109-0140(1)(a). Any such grievance "must include a complete description of the incident, action, or application of the rule being grieved, including date and approximate time, " and should be accompanied by any referenced documents. OAR-291-109-0140(1)(b). Matters, actions, and incidents that an inmate may properly grieve are the "misapplication of any administrative directive or operational procedure, " the "lack of an administrative directive or operational procedure, " any "unprofessional behavior or action which may be directed toward an inmate by an employee or volunteer of [ODOC] or the Oregon Corrections Enterprises, " any "oversight or error affecting an inmate, " any "program failure as defined in... OAR-291-077-0020, " except where such failure was caused by the inmate's misconduct, or the "loss or destruction of [the inmate's] property.... OAR-291-109-0140(2). "An inmate grievance may request review of just one matter, action, or incident per inmate grievance form." OAR-291-109-0140(1)(d). Similarly, inmates are not permitted to grieve the actions of more than one ODOC employee through a single grievance form, but rather must file one grievance form per ODOC employee whose actions are the subject of the inmate's challenge. See OAR-291-109-0140(3)(e). In addition, inmates are not permitted to grieve any claim or issue "that the inmate is pursuing in pending litigation in state or federal courts." OAR-291-109-0140(3)(f). A grievance will not be processed unless it is received by the applicable grievance coordinator on form CD 117 "within 30 calendar days of the date of the incident giving rise to the grievance." OAR-291-109-0150(2),

Upon receipt of an inmate grievance, the applicable grievance coordinator is required to "assign the grievance a number and record its receipt in an inmate grievance log" and to "send a grievance receipt to the inmate." OAR-291-109-0160(1) and (1)(a). The grievance coordinator is then required to coordinate with the ODOC employee best suited to respond to the grievance, and to send the inmate's grievance to that person "for reply." OAR-291-109-0160(1)(b). The

response must "be returned to the grievance coordinator for processing within 21 calendar days." OAR-291-109-0160(1)(c). Following such processing, the grievance coordinator is required to send the inmate copies of both the grievance and the response, and to retain copies for the grievance coordinator's files, all within "45 days from the date the grievance was received" by the grievance coordinator, "unless further investigation is necessary, " OAR-291-109-0160(2). In the event the grievance coordinator fails to complete processing of the grievance within 45 days of its receipt, "the grievance coordinator will make an effort to notify the ...

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