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Heilbrun v. Villanueva

United States District Court, D. Oregon

June 5, 2017

HEATHER VILLANUEVA, et al., Defendants.

          Michael E. Heilbrun, Two Rivers Correctional Institution, pro se.

          Ellen F. Rosenblum, Attorney General, and Vanessa A. Nordyke, Assistant Attorney General, Oregon Department of Justice, of Attorneys for Defendants.


          Michael H. Simon United States District Judge.

         Plaintiff Michael Heilbrun brings this prisoner civil rights lawsuit pro se against various staff members at Two Rivers Correctional Institution (“TRCI”) in Umatilla, Oregon. Plaintiff and Defendants have cross-moved for summary judgment. For the reasons that follow, Defendants' motions are granted in part, and Plaintiff's motions are denied.


         A. Summary Judgment

         A party is entitled to summary judgment 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). The moving party has the burden of establishing the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court must view the evidence in the light most favorable to the non-movant and draw all reasonable inferences in the non-movant's favor. Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th Cir. 2001). Although “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment, ” the “mere existence of a scintilla of evidence in support of the plaintiff's position [is] insufficient . . . .” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 255 (1986). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation and quotation marks omitted).

         When parties file cross-motions for summary judgment, the court “evaluate[s] each motion separately, giving the non-moving party in each instance the benefit of all reasonable inferences.” A.C.L.U. of Nev. v. City of Las Vegas, 466 F.3d 784, 790-91 (9th Cir. 2006) (quotation marks and citation omitted); see also Pintos v. Pac. Creditors Ass'n, 605 F.3d 665, 674 (9th Cir. 2010) (“Cross-motions for summary judgment are evaluated separately under [the] same standard.”). In evaluating the motions, “the court must consider each party's evidence, regardless under which motion the evidence is offered.” Las Vegas Sands, LLC v. Nehme, 632 F.3d 526, 532 (9th Cir. 2011). “Where the non-moving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party's case.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010). Thereafter, the non-moving party bears the burden of designating “specific facts demonstrating the existence of genuine issues for trial.” Id. “This burden is not a light one.” Id. The Supreme Court has directed that in such a situation, the non-moving party must do more than raise a “metaphysical doubt” as to the material facts at issue. Matsushita, 475 U.S. at 586.

         B. Pro Se Filings

         A court must liberally construe the filings of a pro se plaintiff and afford the plaintiff the benefit of any reasonable doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). “‘Unless it is absolutely clear that no amendment can cure the defect, . . . a pro se litigant is entitled to notice of the complaint's deficiencies and an opportunity to amend prior to dismissal of the action.'” Garity v. APWU Nat'l Labor Org., 828 F.3d 848, 854 (9th Cir. 2016) (alteration in original) (quoting Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam)). Under Federal Rule of Civil Procedure 8(a)(2), however, every complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” This standard “does not require ‘detailed factual allegations, '” but does demand “more than an unadorned, the defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Id. (quoting Twombly, 550 U.S. at 555).


         Plaintiff has been an inmate at TRCI since September 3, 2014. TRCI is operated by the Oregon Department of Corrections (“ODOC”). ODOC initially admitted Plaintiff to its custody at the Coffee Creek Intake Center (“CCIC”) on July 14, 2014. In the months before Plaintiff entered CCIC, he had been an inmate at the Washington County Jail. Plaintiff was also previously incarcerated between September 30, 2010, and January 17, 2012.

         Plaintiff alleges that he injured his spine at the Washington County Jail in March 2014 and was prescribed narcotic pain medication, a walker, and a wheelchair.[1] When Plaintiff entered ODOC custody at CCIC in July 2014, Plaintiff alleges, medical staff reduced his dosage of narcotic pain medication. On September 3, 2014, ODOC transferred Plaintiff to TRCI, and Defendant Gruenwald allegedly immediately deprived Plaintiff of all of his pain medication. In September 2014, TRCI medical staff allegedly returned Plaintiff to a lower dose of narcotic pain medication and then removed him from that dose.

         Plaintiff also alleges that ODOC housed him in an active gang unit at TRCI. Plaintiff alleges that on September 8, 2014, a gang member attacked Plaintiff. As a result, ODOC transferred Plaintiff to the disciplinary segregation unit (DSU) and housed him there from September 8 until October 2, 2014. While in the DSU, Plaintiff alleges, staff members deprived him of the use of his walker and wheelchair. Without these mobility aids, Plaintiff alleges, he could not attend a disciplinary hearing relating to the September 8th altercation and present his case that he acted only in self-defense. Plaintiff also alleges that his lack of mobility aids in the DSU caused him to suffer various indignities in his inaccessible cell.


         Defendants move for summary judgment against all claims.[2] First, Defendants argue that Claims 1-3, 5, and 7-11 should be dismissed without prejudice because Plaintiff has failed to exhaust available administrative remedies before bringing these claims. Second, Defendants argue that there are no genuine disputes of material fact and that they are entitled to judgment as a matter of law against Claims 4, 6, and 12-14.[3]

         Plaintiff cross-moves for summary judgment on all claims. Because the Court finds that Plaintiff has failed to exhaust available administrative remedies on Claims 1-3, 5, and 7-11 and that these claims are largely duplicative of Claims 4, 6, 12, and 13, the Court dismisses Claims 1-13 without prejudice for failure to exhaust. To the extent that Plaintiff Claims 4, 6, 12, and 13 are not duplicative of Plaintiff's unexhausted claims, the Court grants summary judgment to Defendants against these claims. The Court also dismisses Claim 14 for the reasons discussed below.[4] This disposes of all claims asserted by Plaintiff.

         A. Exhaustion of Administrative Remedies

         The Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e, provides:

No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.

Id. § 1997e(a). The PLRA's exhaustion doctrine requires “prisoner plaintiffs [to] pursue a remedy through a prison grievance process as long as some action can be ordered in response to the complaint.” Brown v. Valoff, 422 F.3d 926, 934 (9th Cir. 2005). The prisoner must have exhausted all of his available remedies before filing suit. McKinney v. Carey, 311 F.3d 1198, 1200-01 (9th Cir. 2002). A failure to exhaust, however, may be excused “when circumstances render administrative remedies ‘effectively unavailable.'” Sapp v. Kimbrell, 623 F.3d 813, 822 (9th Cir. 2010) (quoting Nunez v. Duncan, 591 F.3d 1217, 1226 (9th Cir. 2010)). A prisoner's failure to exhaust available administrative remedies is an affirmative defense that the defendant must establish. Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). “[A] defendant is entitled to summary judgment under Rule 56” when “undisputed evidence viewed in the light most favorable to the prisoner shows a failure to exhaust.” Id.

         1. ODOC's Inmate Grievance Process

         ODOC's three-level grievance process for inmates' complaints is contained in Chapter 291, Division 109 of the Oregon Administrative Rules (“OARs”). At the first level, “[i]f an inmate is unable to resolve an issue through informal communications, the department encourages the inmate to 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). “An inmate may file a single grievance concerning” the following matters, which include: “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, contractor, or volunteer of [ODOC] or the Oregon Corrections Enterprises;” any “oversight or error affecting an inmate;” the “loss or destruction of [personal] property;” and other matters. OAR 291-109-0140(2)(a)-(d), (f). After an inmate submits a grievance, a grievance coordinator obtains a response from the “appropriate staff or, if deemed more suitable, the appropriate manager.” OAR 291-109-0160(1)(b).

         At the second level of the grievance process, “[a]n inmate may appeal the initial grievance response” to the “functional unit manager.” OAR 291-109-0170(1)(a), (d). The third level is an appeal of the functional unit manager's decision to the Assistant Director or his designee. OAR 291-109-0170(2). “The Assistant Director's or designee's decision on an inmate's grievance appeal is final, and is not subject to further review.” OAR 291-109-0170(2)(f). Thus, a prisoner exhausts the available administrative remedies when he obtains the decision of the Assistant Director or a designee.

         2. Plaintiff's Failure to Exhaust Administrative Remedies

         Plaintiff does not argue that he completed ODOC's grievance process for any claims. To the extent that Plaintiff's filings are ambiguous and mindful of the duty liberally to construe pro se filings, the Court finds that whether or not Plaintiff concedes this point, Plaintiff has not exhausted his administrative remedies on Claims 1-3, 5, and 7-11.

         a. Claim 1

         Claim 1 alleges that Defendants violated Plaintiff's Eighth Amendment rights when they deprived him of narcotic pain medication in September 2014. ECF 94 at 21:535-22:580. Plaintiff filed numerous grievances related to a reduction in his pain medication in September 2014, but did not complete the three-step process on any such grievance before bringing this claim on October 27, 2014. ECF 2 at 4; ECF 151 ¶¶ 13, 19, 21, 22, 27, 30, 34, 37. Defendant Eynon, the grievance coordinator, also returned several of these grievances either because Plaintiff had already filed two grievances that week or six grievances that month in violation of OAR 291-109-0180(1); ECF 151 ¶¶ 21-22, or because Plaintiff had already filed a grievance or discrimination complaint regarding that incident or issue in violation of OAR 291-006-0015(3)-(4); OAR 291-109-0140(5)-(6); ECF 151 ¶¶ 30, 34, 37. Plaintiff could have, but did not, refile these grievances or pursue his original grievance on the issue. Thus, Plaintiff failed to exhaust his administrative remedies on Claim 1.[5]

         b. ...

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