United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
MICHAEL W. MOSMAN, District Judge.
Plaintiff Nickolas Alonzo Vega is an inmate in the custody of the Oregon Department of Corrections ("ODOC") who filed this pro se civil rights action under 42 U.S.C. § 1983. Mr. Vega claims prison officials violated his rights under the First and Eighth Amendments of the U.S. Constitution. His complaint names multiple Defendants, all former employees at Eastern Oregon Correctional Institution ("EOCI"), the institution at which he was held.
Defendants moved for dismissal, arguing that Mr. Vega failed to exhaust his available administrative remedies as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a). Although Mr. Vega filed an initial grievance and a first level appeal, the appeals process was cut short by operation of law when Mr. Vega filed a Notice of Tort Claim with the State Department of Administrative Services. Accordingly, Mr. Vega's grievance appeal was returned to him without being considered on the merits. He then filed this suit. Mr. Vega argues that either this constitutes exhaustion because there was no more process left for him to utilize, or that his failure should be excused because his appeal was "thwarted" by ODOC.
Judge Hubel concluded that Mr. Vega had failed to properly exhaust his administrative remedies and recommended that Defendants' motion be granted. For the reasons explained below, I agree. I write further to address Mr. Vega's objections.
The facts relevant to this motion are largely undisputed. Mr. Vega's complaint alleges the following: On October 23, 2012, Mr. Vega was assigned a new cellmate whom he believed had a reputation for sexually assaulting other inmates. Mr. Vega sent an inmate communication to EOCI Superintendent Coursey, one of the Defendants, saying he was concerned for his safety and asking to have the other man moved elsewhere. The next day, Mr. Vega was moved to housing unit F3, which he says is "known to be a less safe unit." (Plf.'s Compl.  at 3.) Once there, Mr. Vega "became aware of threats to [his] personal safety" and was "repeatedly threatened" by other inmates. Id. He spoke with various prison staff about this, notifying them of the threats and requesting a move to another housing unit. Mr. Vega says these pleas were ignored, and this led to his assault by another inmate on February 12, 2013, in which his nose was broken. Mr. Vega claims his move to the F3 unit was retaliatory in violation of the First Amendment, and that Defendants' failure to protect him was a violation of the Eighth Amendment's prohibition of cruel and unusual punishment.
Mr. Vega then began the prison grievance process. Pursuant to ODOC regulations, this is a three-level procedure consisting of the initial grievance and two levels of appeal. On February 19, 2013, Mr. Vega filed his initial grievance form with the EOCI Grievance Coordinator, Defendant Sobotta, outlining his allegations that he had warned prison staff about the threats to his safety and was then assaulted. On March 14, 2013, Lieutenant Walker, another named Defendant, responded to the grievance, explaining that Mr. Vega had been moved to the F3 unit due to a doctor's order that he needed a bottom bunk, and denying that Mr. Vega had spoken to him about threats to his safety.
Mr. Vega then had fourteen days to appeal Defendant Walker's response to the "functional unit manager." OAR 291-109-0170(1)(b). He complied with this deadline, and on March 24, 2013, his grievance appeal was forwarded to Assistant Superintendent of Security Lemens. No further action was taken on the appeal until April 10, 2013, when it was formally "accepted" and Mr. Vega was given notice of the acceptance.
Mr. Vega makes much of this seventeen day delay. He alleges that while "[i]t may not be procedure[, ] it is at least customary that a person receive a receipt of complaint in a timely manner." (Vega Dec.  at 2.) After not getting the expected receipt for more than two weeks, on April 8, 2013, Mr. Vega filed a Tort Claim Notice with the Oregon Department of Administrative Services. Pursuant to grievance regulations, this cut off his appeal process. When Ms. Sobotta learned the notice had been filed, she changed the status of Mr. Vega's grievance to "denied, " and informed him of the reason for the denial.
On May 8, 2013, Mr. Vega sent an inmate communication form to Assistant Superintendent Amsberry stating his belief that he had not filed "an actual Tort Claim" and asking that his grievance be allowed to proceed. (Vega Dec.  at 2, Ex. 6.) Defendant R. Miles, Supervising Executive Assistant to the Superintendent, responded the next day, telling Mr. Vega that, "[y]our statement that you did not file a Tort claim is false." (Vega Dec.  at 2, Ex. 7.) Defendant Miles included the applicable language from OAR 291-109-0140(3)(h), and determined that the grievance was "appropriately denied." Id.
Mr. Vega then filed this suit under 42 U.S.C. § 1983. I granted his motion to proceed in forma pauperis and screened his complaint under 42 U.S.C. § 1915(e)(2)(B), dismissing his Fourteenth Amendment claim in its entirety and dismissing six Defendants with respect to the remaining claim under the First and Eighth Amendment.
Defendants moved for dismissal on the grounds that Mr. Vega had failed to exhaust his administrative remedies as required by 42 U.S.C. § 1997e(a), an "unenumerated" Rule 12(b) motion under Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). While the motion was pending, the Ninth Circuit issued Albino v. Baca, 747 F.3d 1162, 1166-68 (9th Cir. 2014), overruling Wyatt and holding that failure to exhaust motions should be considered under the existing rules of civil procedure rather than unenumerated ones. Id. at 1166. Because Defendants' motion included evidence beyond the pleadings, Magistrate Judge Hubel construed it as one for summary judgment under Rule 56. (F&R ...