United States District Court, D. Oregon
OPINION AND ORDER
MICHAEL MCSHANE UNITED STATES DISTRICT JUDGE.
an inmate currently at Snake River Correctional Institution
(SRCI), filed suit pursuant to 42 U.S.C. § 1983 alleging
deliberate indifference to his safety and 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.
complaint, plaintiff alleges three claims for relief: 1)
failure to protect him from assault; 2) deliberate
indifference to his serious dental needs; and 3) denial of
housing placement due to retaliation. Compl. at 4-6 (ECF No.
2). 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.
Catrett, 477 U.S. 317, 323 (1986); Albino v.
Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (“If
undisputed evidence viewed in the light most favorable to the
prisoner shows a failure to exhaust, a defendant is entitled
to summary judgment under Rule 56.”).
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 the prison grievance processes. Woodford v.
Ngo, 548 U.S. 81, 84, 90 (2006). To meet this
requirement, inmates must complete the administrative review
process and comply with all applicable procedural rules 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); McKinney v. Carey, 311
F.3d 1198, 1199-1200 (9th Cir. 2002) (per curiam). Notably,
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-step
grievance and appeal process to address inmate complaints.
Or. Admin. R. 291-109-0140(1)(a). 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.” Id. 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 within 14 calendar days from
the date the denial was sent to the inmate. Id.
291-109-0170(1)(b). If the appeal is denied, the inmate may
file a second and final appeal within 14 days of the date the
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 appeal is final and not
subject to further review. Id. 291-109-0170(2)(f).
Failure to Protect and Housing Retaliation
September 2012 to July 2015, plaintiff was housed at Two
Rivers Correctional Institution (TRCI). Plaintiff alleges
that on September 10, 2014 he was punched from behind and on
the side of his jaw by inmate Shawn Johnson. Compl. at 4.
Johnson had previously struck plaintiff in the face in
January 2014. Plaintiff contends that, prior to the September
assault, he told Capt. Pedro that he was concerned about
Johnson and requested a transfer to the Administrative
Housing Unit (AHU) at SRCI. Plaintiff alleges that he was
instructed to fill out a “conflict form”
regarding inmate Johnson and was assured by Capt. Pedro that
Johnson would not be placed in plaintiff's housing unit,
Unit-8. Plaintiff contends that despite his
concerns, inmate Johnson was placed in Unit-8. Plaintiff
further alleges that he informed Correctional Officer Lemmon
about his issue with Johnson approximately 30 minutes before
the September assault, and that Lemmon failed to take action.
Compl. at 4-5. Plaintiff also alleges that defendants refused
to transfer him to the SRCI AHU in retaliation for
plaintiff's past activities as an informant for federal
law enforcement agencies. Compl. at 5.
contend that plaintiff did not exhaust his administrative
remedies as to either claim. I agree. According to the record
before the court, plaintiff submitted four grievances
regarding protection from Johnson and placement in
administrative housing, and he did not complete the
administrative process for any of them.
January 28, 2014, plaintiff submitted Grievance No.
TRCI-2014-01-175 (dated January 26, 2014). Plaintiff
complained that he was not assigned to the AHU after being
assaulted by Johnson. Eynon Decl. Att. 5 at 1. The grievance
was denied on February 13, 2014, because a separate review
process applies to requests to be placed in administrative
segregation and an inmate cannot grieve that issue.
Id. Att. 5 at 2. Plaintiff did not appeal this
February 21, 2014, plaintiff submitted a discrimination
complaint, No. TRCI-2014-02-156. Plaintiff alleged
discrimination due to the fact that he had not been placed in
administrative segregation. Eynon Decl. Att. 6 at 1. On March
6, 2014, the complaint was denied because plaintiff's
complaint was considered a grievance issue and he had used
the wrong form. Plaintiff did not file an appeal.
Id. Att. 6 at 2.
September 15, 2014, plaintiff submitted Grievance No.
TRCI-2014-09-061 (dated September 14, 2014). Plaintiff
complained that he had not been assigned a single cell or to
administrative segregation and, as a result, had been
assaulted again by Johnson on September 10. Plaintiff
requested transfer to SCRI AHU to protect him from further
injury. Eynon Decl. Att. 7 at 1. On September 28, 2014, Lt.
Boston responded to the grievance and explained he and
plaintiff had met to discuss plaintiff's concerns. Lt.
Boston explained that plaintiff had completed a conflict form
regarding Johnson and reminded plaintiff that he was familiar
with the process to request administrative housing and could
obtain an application. Id. Att. 7 at 2.
filed an appeal, and on October 14, 2014 it was returned for
corrections. Id. Att. 7 at 3-5. On October 28, 2014,
plaintiff submitted a corrected appeal and complained that a
conflict form for Johnson would not be effective and
requested housing in administrative segregation. Id.
Att. 7 at 6. On November 25, 2014, Superintendent Myrick
responded and explained that an approved conflict form is a
substantial step in avoiding potential issues between
inmates. Superintendent Myrick reminded plaintiff that he had
met with Capt. Iverson on October 10, 2014 and had signed an
Assignment to Administrative Segregation form to initiate the
process. Id. Plaintiff did not file a second appeal
and did not exhaust his administrative remedies as to this
September 25, 2014, plaintiff submitted Grievance No.
TRCI-2014-09-125 (dated September 24, 2014) and complained
that he was assaulted after being housed in the same unit as
Johnson. Eynon Decl. Att. 9 at 1. On October 1, 2014, Capt.
Pedro responded and reminded plaintiff that they had spoken
about Johnson a few weeks earlier and Capt. Pedro had
explained that prison staff was not aware that Johnson would
assault plaintiff again. Id. Att. 9 at 2. Capt.
Pedro also confirmed that they discussed plaintiff's
desire to be housed in AHU because of his past history as an
informant. Capt. Pedro restated his opinion that plaintiff
did not need assignment to AHU and reminded plaintiff that