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Lovelady v. Beamer

United States District Court, D. Oregon, Portland Division

May 17, 2017

JEREMY RAY LOVELADY, Plaintiff,
v.
DR. BEAMER; MS. WETTLAUGHER; MS. GARTON, Defendants,

          OPINION AND ORDER

          Honorable Paul Papak United States Magistrate Judge

         INTRODUCTION

         Plaintiff pro se Jeremy Ray Lovelady brought this action against Dr. Leland Beamer, Dorothy Wettlaufer[1], 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.

         Now 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.

         LEGAL STANDARDS

         I. Summary Judgment

         Summary 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).

         Summary 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).

         II. Preliminary Injunction

         "A 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).

         Alternatively, 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.

         FACTUAL BACKGROUND

         I. The Parties

         Plaintiff 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 ("OSP").

         Defendant 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.

         Defendant Wettlaufer is the medical manager at EOCI. She is alleged to be in charge of medical staff and procedures related to EOCI inmates.

         Defendant Garton is EOCI's outside medical care coordinator.

         II. Material Background

         A. The Administrative Remedy Program at EOCI

         For the purposes of whether Plaintiff had access to administrative remedies, Plaintiff was housed at EOCI at all material times.[2] 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.

         Pursuant 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." OAR-291-109-0150(2).

         Upon 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.

         "If 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 appealed." OAR-291-109-0160(5).

         An 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 OAR-291-109-0170(1)(d).

         In the 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).

         The 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).

         B. Facts Underlying the ...


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