United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
Honorable Paul Papak United States Magistrate Judge
pro se Jeremy Ray Lovelady brought this action
against Dr. Leland Beamer, Dorothy Wettlaufer, and Jaylene
Garton (collectively "Defendants") alleging that he
is entitled to a declaratory judgment, injunctive relief, and
damages under 42 U.S.C. § 1983 for violations of his
Eighth Amendment rights. Plaintiff also alleges that he is
entitled to a declaratory judgment that Defendant Beamer was
negligent. This court has federal-question jurisdiction over
Plaintiff s section 1983 claim pursuant to 28 U.S.C. §
1331, and supplemental jurisdiction over Plaintiffs state law
tort claim pursuant to 28 U.S.C. § 1367.
before the court is Defendants' partial motion for
summary judgement (# 49), and Plaintiffs motion for
preliminary injunction (# 4). I have considered the motions
and all of the briefings, papers, and pleadings on file. For
the reasons discussed below, Defendants' partial motion
for summary judgement is GRANTED and Plaintiffs motion for
preliminary injunction is DENIED.
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 Morelcmd v.
Las Vegas Metro. Police Dep't, 159 F.3d 365, 369
(9th Cir. 1998).
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.3d439, 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 Prods.,
Inc., 530 U.S. 133, 150 (2000).
preliminary injunction is an extraordinary remedy never
awarded as of right." Winter v. Nat. Res. Def.
Council, Inc., 555 U.S. 7, 24 (2008). A party seeking a
preliminary injunction must establish (1) that they are
likely to succeed on the merits; (2) that they are
likely to suffer irreparable harm in the absence of
preliminary relief; (3) that the balance of equities tips in
their favor; and (4) that an injunction is in the public
interest. Id. at 20; All. for the Wild Rockies
v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011).
in the Ninth Circuit, a "sliding scale" approach
may be undertaken. All. for the Wild Rockies, 632
F.3d at 1131-35 (noting that the '"serious
questions' approach survives Winter when applied
as part of the four-element Winter test"). The
Ninth Circuit's sliding scale approach permits a weaker
showing of success on the merits to be offset by a stronger
showing of irreparable harm where the other two elements of
the Winter test are met. Id. at 1131.
Specifically, '"serious questions going to the
merits' and a balance of hardships that tips sharply
towards the plaintiff can support issuance of a preliminary
injunction, so long as the plaintiff also shows that there is
a likelihood of irreparable injury and that the injunction is
in the public interest." Id. at 1135.
was a prisoner incarcerated at Eastern Oregon Correctional
Institution ("EOCI") on October 9, 2014-the date on
which Plaintiff sustained the injuries giving rise to this
action. Plaintiff remained at EOCI until June 28, 2016, when
he was transferred to Oregon State Penitentiary
Beamer is a doctor at EOCI and is alleged to have been in
charge of Plaintiff s medical care at the time of the events
giving rise to this action.
Wettlaufer is the medical manager at EOCI. She is alleged to
be in charge of medical staff and procedures related to EOCI
Garton is EOCI's outside medical care coordinator.
The Administrative Remedy Program at EOCI
purposes of whether Plaintiff had access to administrative
remedies, Plaintiff was housed at EOCI at all material
times. At EOCI, Plaintiff had available to him a
three-level grievance procedure consistent with the
regulations set forth in Chapter 291, Division 109 of the
Oregon Administrative Rules. Inmates are informed of the
grievance process through an Inmate Orientation Packet,
through the inmate handbook, and through grievance
instructions accompanying grievance forms.
to the EOCI 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 file more than one grievance
regarding a single incident or issue unless more than one
ODOC employee is directly involved in the incident,
OAR-291-109-0140(5). 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)(h), 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."
receipt of an inmate grievance, a grievance coordinator is
required to "assign the grievance a number, date stamp,
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)
and (2)(a). 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 inmate of the status of the grievance."
OAR-291-109-0160(2)(b). "If the inmate does not receive
a response within the allotted time frame, he/she may contact
the grievance coordinator." Id.
at any time the grievance coordinator determines the inmate
has pursued his/her grievance through state or federal
courts, the grievance process will cease and the grievance
will be returned to the inmate." OAR-291-109-0160(4).
"A grievance that has been returned to [an] inmate by
the grievance coordinator for procedural reasons cannot be
inmate may appeal the institutional response to the
inmate's grievance by and through "the grievance
appeal form (CD 117c)." OAR-291-109-0170(1)(a). Any such
appeal "must be submitted to the grievance coordinator
together with the original grievance, attachments, and staff
response(s)." Id. The scope of the originally
submitted grievance cannot be expanded on appeal, and the
inmate is not permitted to add new information regarding the
grieved incident on appeal, except where such information was
unavailable to the inmate at the time the original grievance
was filed. See Id. Any such appeal must be received
by the grievance coordinator "within 14 days from the
date that the grievance response was sent to the inmate from
the grievance coordinator." OAR-291-109-0170(1)(b). The
grievance coordinator is required to send the appeal to the
"functional unit manager, " who is required to
respond to the appeal "within 30 calendar days."
OAR-291-109-0170(1)(a)(B) and (1)(d). The grievance
coordinator is then required to send the functional unit
manager's appeal response to the inmate. See
event an inmate wishes to appeal the functional unit
manager's decision regarding a grievance appeal, the
inmate may do so "using the grievance appeal form (CD
117c)." OAR-291-109-0170(2)(a). Any such appeal
"must be submitted to the grievance coordinator together
with the original grievance, attachments, staff responses,
and documentation related to the first grievance
appeal." Id. The grievance coordinator must
generally receive any such appeal "within 14 calendar
days from the date that the first grievance appeal response
was sent to the inmate from the grievance coordinator."
OAR-291-109-0170(2)(c). As with the first appeal, appeal of
the functional unit manager's response cannot expand the
scope of the original grievance, and cannot adduce new
information regarding the originally grieved incident, except
where such information was unavailable to the inmate at the
time the original grievance or first appeal was filed.
See OAR-291-109-0170(2)(a)(A). The grievance
coordinator is required to forward any such appeal to
"the Assistant Director having authority to review and
resolve the issue." OAR-291-109-0170(2)(a)(B).
Assistant Director with such authority is required to respond
to any such appeal from a functional unit manager's
grievance appeal response "within 30 calendar
days." OAR-291-109-0170(2)(e). "The Assistant
Director's ... decision on an inmate's grievance
appeal is final, and is not subject to further
[administrative] review." OAR-291-109- 0170(2)(f).
Facts Underlying the ...