United States District Court, D. Oregon, Portland Division
TRAVIS D. WARREN, Plaintiff,
CHRISTOPHER J. PAROSA, et al., Defendant.
OPINION AND ORDER
MICHAEL W. MOSMAN CHIEF UNITED STATES DISTRICT JUDGE
matter comes before me on Defendants' Motion to Dismiss
 Plaintiff Travis D. Warren's Fifth Claim. Mr.
Warren's fifth claim alleges that Defendants failed to
protect Mr. Warren from an attack by another inmate on May 1,
2016 at the Lane County Adult Correctional Facility
(“the jail”). After that attack, Mr. Warren was
placed in segregation until he was transferred to state
custody on May 5. Mr. Warren did not exhaust this claim
through the jail's grievance procedures, but argues that
his failure to exhaust is excused because he was transferred
only four days after the attack.
September 18, 2017, Judge You issued her Findings &
Recommendation (F&R)  in this case. She recommended
this court deny Defendants' Motion to Dismiss for Failure
to State a Claim , which the court converted into a
Motion for Summary Judgment . On September 27, Defendants
filed their objections  along with a Motion to Supplement
the Motion for Summary Judgment  and the Affidavit of
Lieutenant Steve French . Mr. Warren responded .
Because Mr. Warren had the opportunity to respond, and did
respond, to the supplemental affidavit, I GRANT
Defendants' Motion to Supplement. See United States
v. Howell, 231 F.3d 615, 621-22 (9th Cir. 2000) (court
has discretion to consider newly offered evidence when
reviewing F&R objections).
objections and supplemental affidavit raise two issues the
F&R does not address. This opinion addresses those
issues: first, whether the Prison Litigation Reform Act
(PLRA), 42 U.S.C. § 1997e(a), would require Mr. Warren
to exhaust his claim in the four days he was in segregation
after the May 5, 2016 fight but before he was transferred,
and second, whether Mr. Warren's failure to exhaust is
excused even though jail policies would in fact have allowed
Mr. Warren to grieve the incident after he had been
that the PLRA did not require Mr. Warren to exhaust before he
was transferred and that the jail's grievance procedures
were no longer available to him after he was transferred. My
conclusions on these issues do not alter the outcome the
F&R reached; thus, with my additional analysis below, I
adopt the F&R  as my own opinion and DENY
Defendants' Motion to Dismiss .
Failure to Exhaust While in Segregation
F&R excused the exhaustion requirement because Defendants
failed to show that administrative remedies were available to
Mr. Warren after he was transferred. But even if that were
true, I must determine whether, as Defendants suggest, Mr.
Warren's failure to grieve during the four days he was in
segregation constitutes failure to exhaust this claim.
supplemental affidavit, Lt. French indicates--and Mr. Warren
does not dispute-- that inmates may access grievance
procedures while in segregation. Supp. Aff.  at 2. Jail
policy requires inmates “to file their grievance within
14 calendar days from the time they first knew of, or
reasonably should have known of the aggrieved situation or
act.” Supp. Aff.  Ex. 1 at 2. If a grievance is
filed late, the inmate must justify why he was unable to
comply with the time limit. Id.
inmate must exhaust available administrative remedies.
Ross v. Blake, 136 S.Ct. 1850, 1858 (2016). To
properly exhaust, “prisoners must ‘complete the
administrative review process in accordance with the
applicable procedural rules'--rules that are defined not
by the PLRA, but by the prison grievance process
itself.” Jones v. Bock, 549 U.S. 199, 218
(2007) (quoting Woodford v. Ngo, 548 U.S. 81, 88
(2006)). “Compliance with prison grievance procedures,
therefore, is all that is required by the PLRA to
‘properly exhaust.'” Id. But if an
inmate had full opportunity and ability to file a grievance
timely, but failed to do so, he has not properly exhausted
his administrative remedies. Marella v. Terhune, 568
F.3d 1024, 1028 (9th Cir. 2009) (per curiam).
assuming Mr. Warren could not file a grievance after he was
transferred, he was not afforded the full opportunity to file
a grievance timely--that is, the administrative remedy was
not fully available to him. Jail grievance procedures give
inmates fourteen days after an incident to file a grievance;
Mr. Warren had only four. If the PLRA were to require him to
file in the shorter window of time, then the PLRA would
impose a stricter requirement than the jail's grievance
procedures do. But the PLRA does not define the parameters of
grievance procedures, see Jones, 549 U.S. at 218;
thus, it cannot make the requirements of those procedures
courts have found that periods of a few days between an
incident and a transfer does not allow the inmate a
meaningful opportunity to exhaust. See Alonso-Prieto v.
Pierce, No. 1:11-cv-00024-AWI-MJS (PC), 2014 WL 250342,
at *4 (E.D. Cal. Jan. 22, 2014) (inmate transferred from
state facility within two days of incident and not situated
in federal facility until after close of ten-day window for
filing grievances established by state facility did not have
meaningful opportunity to exhaust); Pauls v. Green,
816 F.Supp.2d 961, 968 (D. Idaho 2011) (transfer from county
jail to state prison within a few days of a sexual assault
did not leave an adequate opportunity to exhaust).
Mr. Warren was not required to file his grievance in the four
days he was in segregation.
Failure to ...