United States District Court, D. Oregon
ANTONIO A. GUTIERREZ, Plaintiff,
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
Aiken United States District Judge
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.
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. 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).
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").
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).
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.
Reduction in Medication Dosage
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.
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.
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.
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.
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).
the undisputed facts of record, no genuine issue of fact
precludes summary judgment on plaintiffs first claim for
relief alleging deliberate indifference to his ...