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Jeremiah v. Nooth

United States District Court, D. Oregon

December 18, 2017

BRIAN A. JEREMIAH, Plaintiff,
v.
MARK NOOTH, Superintendent, SRCI; et al., Defendants.

          FINDINGS AND RECOMMENDATION

          Thomas Coffin, United States Magistrate Judge

         Plaintiff, an inmate at the Snake River Correctional Institution (SRCI), brought this action pursuant to 42 U.S.C. § 1983 and alleged various violations of his constitutional rights. Defendants now move for summary judgment on all claims. For the reasons explained below, defendants' motion should be granted.

         BACKGROUND

         Plaintiffs claims arise from three separate incidents at SRCI. Claims 1 through 5 pertain to an incident on August 3, 2015. On that day, plaintiff was in the common gym area and began to feel gastrointestinal discomfort. He asked Officer Bidwell if he could use a bathroom in the gym. Officer Bidwell responded that those particular bathrooms were reserved for staff and told plaintiff to return to his cell to use the bathroom. Plaintiff declined to do so and remained in the gym. Several minutes later, plaintiff experienced an episode of uncontrollable and noticeable diarrhea, with feces running down his legs and onto the floor. Officer Bidwell saw plaintiff and loudly declared, in front of other inmates and prison gang members, that plaintiff had "shit" in the gym. Plaintiff asked if he could clean up in a bathroom across the hall. Officer Bidwell indicated that the hall bathroom was occupied and told plaintiff to return to his cell. Plaintiff did not do so; instead, he waited for the hall bathroom to become unoccupied and entered it just as he experienced a second episode of diarrhea. After plaintiff exited the bathroom, Sgt. Aly allegedly asked him why he had "shit" all over the gym and escorted plaintiff to segregated housing. Am. Compl. at 3-14 (ECF No. 9).

         Plaintiff was charged with misconduct for failing to follow Officer Bidwell 's order to return to his cell. After a disciplinary hearing on August 10, 2015, plaintiff was found guilty of disobeying an order and received seven days in disciplinary segregation and seven days' loss of privileges. Pl's Response to MSJ, Ex. D (ECF No. 47-1 at 6).

         Claims 6 through 13 relate to an incident that occurred on August 21, 2015. On that day, plaintiff went to the prison dayroom to read a book. A fellow inmate threatened to hit plaintiff on the head with a board if plaintiff did not return to his cell. Plaintiff immediately informed Officer Dotson, who asked plaintiff who had threatened him. Plaintiff did not know and returned to his dayroom seat. After a few minutes, plaintiff again informed Officer Dotson of the threat and identified a group of inmates that could have included his potential assailant. Plaintiff then returned to his seat in the dayroom and resumed reading. A short time later, an inmate took a board from a shelf and struck plaintiff with the board and with his fists. As plaintiff attempted to flee to the guard station, Officer Dotson told plaintiff and his assailant to "stop fighting" and sprayed them with pepper spray. Plaintiff was returned to his cell and given a wet towel to remove the pepper spray. Plaintiff was not allowed to shower until his next shower rotation two days later. Am. Compl. at 15-24.

         Claims 14 through 16 relate to a July 2015 order directing plaintiff to cease sending letters to his ex-wife after she complained that plaintiff was harassing her. Plaintiff sent his ex-wife another letter several months later, because he believed that the order "was a violation of [his] civil rights." Am Compl. at 25. After his ex-wife notified SRCI officials, plaintiff was issued a misconduct report and found guilty of violating the order.

         DISCUSSION

         Defendants argue that Claims 2, 4, and 13 fail to state a claim, Claims 6 and 7 lack merit, and the remaining claims are barred for failure to exhaust administrative remedies. To prevail on their motion for summary judgment, defendants must show 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, 141 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 court must construe the evidence and draw all reasonable inferences in the light most favorable to plaintiff Torres v. City of Madera, 648 F.3d 1119, 1123 (9th Cir. 2011).

         A. Failure to Exhaust Administrative Remedies

         Under 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 § l997e(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, 85, 90 (2006). 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. Id; McKinney v. Carey, 311 F.3d 1198, 1199-1200 (9thCir. 2002) (per curiam). The PLRA does not require exhaustion when administrative remedies are "effectively unavailable." Sapp v. Kimbrell, 623 F.3d 813, 822 (9th Cir. 2OlOj; Brown v. Valoff, 422 F.3d 926, 937 (9th Cir. 2005) (an administrative remedy must be available "as a practical matter"). Once the defendant shows that the inmate did not exhaust an available administrative remedy, the burden shifts to the plaintiff to "come forward with evidence showing that there is something in his particular case that made the existing and generally available administrative remedies effectively unavailable to him." Albino, 1A1 F.3d at 1172.

         The Oregon Department of Corrections (ODOC) employs a three-step grievance and appeal process. Or. Admin. R. 291-109-0140(1). Inmates may file grievances for a variety of issues, including "unprofessional behavior or action which may be directed toward an inmate by an employee" or an "oversight or error affecting an inmate." See Id. 291-109-0140(2)(c), (d). Generally, the inmate must file a grievance within 30 days of the alleged condition or incident. Id. 291-109-0150(2). If a grievance is returned on procedural grounds, the inmate may resubmit the grievance within 14 days if the procedural errors can be corrected. Id. 291-109-0160(5). If a grievance is accepted, the inmate may appeal the response within 14 calendar days from the date the response was sent to the inmate. Id. 291-109-0170(1)(b). As with grievances, appeals returned 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). If an appeal is denied, the inmate may file a second appeal within 14 days of the date the denial was sent to the inmate. Id. 291-109-017O(2)(c). A decision following a second appeal is final and not subject to further review. Id. 291-109-0170(2)(f).

         1. Claims 1, 3 and 5

         In Claims 1 and 3, plaintiff alleges that Officer Bidwell and Sgt. Aly violated his "14th Amendment right to privacy (medical issue privacy)" and Eighth Amendment rights when they announced that plaintiff had "shit" in the gym and Officer Bidwell ordered him to return to his cell with diarrhea running down his legs. Am. Compl. at 3-6, 8-9. In Claim 5, plaintiff alleges "First amendment violation of retaliation for a perceived intentional medical accident by Officer Bidwell and Sgt. Aly" based on the same actions. Id. at 14.

         Plaintiff attempted to grieve several issues relating to the gym incident. In Grievance SRCI201508085, plaintiff complained that Officer Bidwell "blatantly disregarded my medical privacy, tried to incite violence against me (and-or ridicule), was not paying attention to his job while on the phone in the back room, he ordered me to walk down the hall with dripping diarrhea coming out of my shorts." Taylor Decl. Att. 5 at 2 (ECF No. 41). Plaintiff also referenced his disciplinary hearing for disregarding Officer Bidwell's order, and the grievance was construed as an attempt to grieve a non-grievable misconduct order. See Or. Admin R. 291-109-0140(3)(e) (an inmate may not grieve "[m]isconduct reports, investigations leading to or arising from misconduct reports, or disciplinary hearings, findings and sanctions"). Consequently, plaintiff received a response stating that the grievance was being returned for noncompliance with the relevant rules because it pertained to a misconduct report. Taylor Decl. Att. 5 at 1. Based on this response, plaintiff argues that the grievance process was not available.

         "[A]an inmate is required to exhaust those, but only those, grievance procedures that are 'capable of use' to obtain 'some relief for the action complained of."' Ross v. Blake, 136 S.Ct. 1850, 1859 (2016) (citation omitted). In Ross, the Supreme Court enumerated three instances where a grievance procedure, for practical purposes, is unavailable: 1) when the process operates as a "simple dead end" with no actual possibility of relief to prisoners; 2) when the process is so opaque or confusing that it is "essentially 'unknowable' - so that no ordinary prisoner can make sense of what it demands"; and 3) when prison officials "thwart" inmates from using the process "through machination, misrepresentation, or intimidation." Id. at 1859-60.

         Here, the response to Grievance SRCI201508085 did not invite plaintiff to submit a corrected or revised grievance or otherwise suggest that the grievance process was available. Taylor Decl. Att. 5 at 1. Therefore, it is arguable that the grievance process was not available to plaintiff regarding these claims. Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009) (per curiam) (administrative remedies may be effectively unavailable where the prisoner is informed that he is not permitted to appeal a decision). Regardless, these claims lack merit.

         In his amended complaint, plaintiff alleged that after the "diarrhea ran down from [his] shorts all over [his] legs and some on the floor, " he "tried to wipe [his] legs off but to no avail, " and Officer Bidwell "came out of his little room...to a guy with diarrhea all over his legs." Am. Compl. at 10 (ellipses in original). Given that plaintiff had an admittedly visible episode of diarrhea in a common area of the prison, Officer Bidwell and Sgt. Aly did not violate plaintiffs privacy or exhibit deliberate indifference to his health or safety by announcing what others could plainly observe.[1]See Bell v. Wolfish,441 U.S. 520, 537 (1979) (stating that the loss of privacy is an "inherent incident[ ] of confinement."); Thomas v. Ponder, 611 F.3d ...


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