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Gutierrez v. Shelton

United States District Court, D. Oregon

March 27, 2017

ANTONIO A. GUTIERREZ, Plaintiff,
v.
STEVE SHELTON, Medical Director, Health Services Oregon Department of Corrections, GARTH GULICK, Doctor, Snake River Correctional Institution, J. TAYLOR, Grievance Coordinator, Snake River Correctional Institution. Defendants.

          OPINION AND ORDER

          Ann Aiken United States District Judge

         Plaintiff, an inmate at Snake River Correctional Institution (SRCI), filed suit pursuant to 42 U.S.C. § 1983 alleging deliberate indifference to his serious medical needs and retaliation. Defendants now move for summary judgment under Federal Rule of Civil Procedure 56 on all claims. For the reasons set forth below, defendants' motion is granted.

         DISCUSSION

         In his amended complaint, plaintiff alleges four claims for relief: 1) deliberate indifference to his serious medical needs based on defendants' reduction of his Hepatitis C medication dosage; 2) deliberate indifference to his serious medical needs based on the denial of a specific Hepatitis C treatment due to its cost; 3) violation of plaintiffs equal protection rights based on the denial of Hepatitis C treatment; and 4) retaliation based on defendant Taylor's alleged interference with plaintiffs ability to file grievances. ECF No. 51.[1] Defendants contend that plaintiff failed to exhaust his administrative remedies with respect to each claim and move for summary judgment accordingly. To prevail on their motion, defendants must show that there is no genuine dispute as to any material fact and they are entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrelt, 477 U.S. 317, 323 (1986).

         Under the Prison Litigation Reform Act (PLRA), inmates must exhaust all available administrative remedies before filing a court action to redress prison conditions or incidents. 42 U.S.C § 1997e(a). The exhaustion requirement is mandatory and requires compliance with both procedural and substantive elements of prison grievance processes. Woodford v. Ngo, 548 U.S. 81, 84, 90 (2006). In other words, inmates must complete the administrative review process and comply with all applicable procedural rules, including deadlines, by appealing a grievance decision to the highest level before filing suit. Marella v. Terhune, 568 F, 3d 1024, 1027 (9th Cir, 2009) (per curiam); McKumey v. Carey, 311 F.3d 1198, 1199-1200 (9th Cir. 2002) (per curiam). Importantly, the PLRA does not require exhaustion when administrative remedies are "effectively unavailable." Sapp v. Kimbrell, 623 F.3d 813, 822 (9th Cir. 2010); see also Marella, 568 F.3d at 1027 (administrative remedies may be effectively unavailable where the prisoner lacks the necessary forms or is informed that he cannot file a grievance); Brown v. Valoff, 422 F.3d 926, 937 (9th Cir, 2005) (an administrative remedy must be available "as a practical matter").

         The Oregon Department of Corrections (ODOC) has a three-level grievance and appeal process to address inmate complaints. Inmates may file grievances for numerous issues, including "unprofessional behavior or action which may be directed toward an inmate by an employee or volunteer" or an "oversight or error affecting an inmate." Or. Admin. R. § 291-109-0140(2)(c), (d). Unless the matter is an emergency, the inmate must file the requisite grievance form within 30 working days of the alleged condition or incident. Id. § 291-109-0150(2). A grievance that is returned to the inmate on procedural grounds may not be appealed. Instead, the inmate may resubmit the grievance within 14 days if the procedural errors can be corrected. Id. § 291-109-0160(5). An inmate may appeal the initial grievance response by filing a first-level appeal within 14 calendar days from the date the denial was sent to the inmate. Id. § 291-109-0170(1)(b). If the first-level appeal is denied, the inmate may file a second-level appeal within 14 days of the date the first-level denial was sent to the inmate. Id. § 291-109-0170(2)(c). As with initial grievances, appeals that are returned to the inmate for procedural reasons may not be appealed further but may be resubmitted after correction of the procedural errors. Id. § 291-109-0170(1)(c), (2)(d). A decision following a second-level appeal is final and not subject to further review. Id. §291-109-0170(1).

         The issue before the court is whether plaintiff complied with the procedural and substantive requirements of ODOC's grievance process and exhausted his available administrative remedies as to each of his federal claims.

         A. Reduction in Medication Dosage

         Plaintiffs first claim alleges deliberate indifference based on a prison physician's decision to reduce the dosage of medication plaintiff was receiving as part of his Hepatitis C treatment. Defendants argue that plaintiff did not exhaust his administrative remedies as to this claim. In support, defendants cite grievance SRCI.2012.06.041 filed by plaintiff on June 12, 2012. A prison nurse responded to plaintiffs grievance on June 22, 2012, and plaintiff filed no appeal.

         Plaintiff responds that SRCI.2014, 06.041 is not the grievance corresponding to his first claim for relief and maintains that a later grievance, SRCI.2012.08.168, is the correct grievance. See PL's Response (ECF No. 69) at 15. I agree. Review of SRCI.2012.06.041 shows that it pertains to general allegations about the lack of Hepatitis C treatment in 2007 along with a myriad of complaints about perceived misdiagnoses, lost medical reports, and other mistakes relating to his ongoing treatment. Taylor Decl. Attachment 4. In contrast, SRCI.2012.08.168 specifically grieved the reduction in dosage of his medication and requested reinstatement of the previous dosage. Id. Attachment 5 at 4-8. Therefore, I must determine whether plaintiff exhausted his remedies as to SRCI.2012.08.168.

         On August 28, 2012, plaintiff filed grievance SRCI.2012.08.168 and complained that the dosage for his Hepatitis C medication was reduced. On August 29, 2012, a prison nurse sent a memorandum to plaintiff and explained why plaintiffs medication dosage was reduced. She also indicated that plaintiffs medication would be adjusted "accordingly" after plaintiffs next blood draw in two days. Taylor Deck Attachment 5 at 3. On September 14, 2012, the nurse formally responded to grievance SRCI.2012.08.168 and again explained that plaintiffs medications were decreased because of lab results and assured plaintiff that a physician had reviewed and approved the dosage decrease. The nurse also advised plaintiff that his next lab and follow-up appointments were scheduled within the next few days. Id. Attachment 5 at 2. Plaintiff did not appeal the denial of his grievance.

         Plaintiff contends that he had no reason to file an appeal because he was satisfied with the response he received and felt that the matter of his medication dosage was resolved. See Harvey v. Jordan, 605 F.3d 681, 685 (9th Cir. 2010) ("An inmate has no obligation to appeal from a grant of relief, or a partial grant that satisfies him, in order to exhaust his administrative remedies."). Plaintiff cites nothing in the record to support this assertion. Regardless, the record clearly shows that defendants were not deliberately indifferent to plaintiffs medical needs when his medication dosage was reduced.

         Deliberate indifference exists when a prison official knows an inmate faces a substantial risk of serious harm to his health and fails to take reasonable measures to abate the risk. Farmer v. Brennan, 511 U.S. 825, 847 (1994); Toguchi v. Soon Hwang Chung, 391 F.3d 1051, 1058 (9th Cir. 1994). According to plaintiffs own statements in his grievance and in this action, his medication dosage was reduced on August 21, 2012, and he grieved the reduction shortly afterward. See Taylor Decl. Attachment 5; Pl's Response at 16. Plaintiff admits that defendants responded to his grievance and adjusted his medication within a few weeks by increasing the dosage in September 2012 and reinstating the "full" dosage in October 2012. Pl's Response at 16, Under these circumstances, defendants did not fail to take reasonable actions or act with deliberate indifference regarding plaintiffs medication. At most, the record establishes a difference of opinion between plaintiff and his physicians regarding the best course of treatment. However, allegedly inadequate treatment due to negligence, inadvertence, or differences in judgment between an inmate and medical personnel does not rise to the level of a constitutional violation. Estelle v. Gamble, 429 U.S. 97, 105-06 (1976).

         Given the undisputed facts of record, no genuine issue of fact precludes summary judgment on plaintiffs first claim for relief alleging deliberate indifference to his ...


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