United States District Court, D. Oregon
BRIAN A. JEREMIAH, Plaintiff,
MARK NOOTH, Superintendent, SRCI; et al., Defendants.
FINDINGS AND RECOMMENDATION
Coffin, United States Magistrate Judge
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
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).
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 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.
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.
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).
Failure to Exhaust Administrative Remedies
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.
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.
Claims 1, 3 and 5
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.
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.
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.
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.
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.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