United States District Court, D. Oregon
Jeremy R. Lovelady Eastern Oregon Correctional Institution Pendleton, OR, Pro Se Plaintiff.
Ellen F. Rosenblum, Attorney General, Vanessa A. Nordyke, Assistant Attorney General, Department of Justice, Salem, OR, Attorneys for Defendants.
OPINION AND ORDER
GARR M. KING, District Judge.
Plaintiff Jeremy Lovelady, an inmate at the Eastern Oregon Correctional Institution, complains that defendants Doctor Leland Beamer and Medical Manager Dorothy Wettlaufer (collectively, "ODOC defendants") denied him adequate medical care in violation of the Eighth Amendment.
Pending before me is the ODOC defendants' Motion for Summary Judgment for failure to exhaust administrative remedies.
Plaintiff alleges a history of back problems, dating back to 2001, including sciatica, a torn muscle, a herniated disc, arthritis in his spine and neck, and degenerative disc disease.
Plaintiff alleges that he requested to see a doctor for back pain over the course of ten weeks; he repeatedly had been scheduled to see a doctor, but ODOC cancelled the appointments. When Dr. Beamer finally examined plaintiff on September 17, 2013, plaintiff understood from his conversation with the doctor that plaintiff's appointments had been cancelled because of plaintiff's conviction. Dr. Beamer told plaintiff he looked fine and asked plaintiff to leave his office.
Plaintiff filed a grievance that day. On September 19, plaintiff filed a notice of tort claim with Risk Management Division in Salem.
Plaintiff sought Wettlaufer's assistance in scheduling a doctor's appointment. As a result, Dr. Beamer examined plaintiff on March 6, 2014; at that time, Dr. Beamer informed plaintiff he would not recommend an MRI for plaintiff. When plaintiff sought assistance from Wettlaufer, she informed plaintiff that he could purchase an MRI if he wanted one.
The Prison Litigation Reform Act ("PLRA") states: "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, 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. § 1997e(a). The PLRA exhaustion requirement demands "proper exhaustion, " which means compliance with all deadlines and "other critical procedural rules." Woodford v. Ngo, 548 U.S. 81, 90, 93 (2006).
It is the defendants' burden "to prove that there was an available administrative remedy, and that the prisoner did not exhaust that available remedy." Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014). The burden of production then shifts to the prisoner to "come forward with evidence showing that there is something in his particular case that made the existing and generally available administrative remedies effectively unavailable to him." Id . The "ultimate burden of proof remains with the defendant[s]." Id . The court must view all material facts in the light most favorable to the non-moving party. Id. at 1173. "If undisputed evidence viewed in the light most favorable to the prisoner shows a failure to exhaust, a defendant is entitled to summary judgment under Rule 56." Id. at 1166.
Grievances are processed in accordance with the ODOC Administrative Rules for Inmate Communication and Grievance Review System. Inmates are encouraged to talk to first line staff as their primary way to resolve disputes and, if not satisfied, to use a written inmate communication form. OAR 291-109-0100(3)(a). If this ...