Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Warren v. Parosa

United States District Court, D. Oregon, Portland Division

January 26, 2018

TRAVIS D. WARREN, Plaintiff,
v.
CHRISTOPHER J. PAROSA, et al., Defendant.

          OPINION AND ORDER

          MICHAEL W. MOSMAN CHIEF UNITED STATES DISTRICT JUDGE

         This matter comes before me on Defendants' Motion to Dismiss [20] 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.

         On September 18, 2017, Judge You issued her Findings & Recommendation (F&R) [52] in this case. She recommended this court deny Defendants' Motion to Dismiss for Failure to State a Claim [20], which the court converted into a Motion for Summary Judgment [24]. On September 27, Defendants filed their objections [58] along with a Motion to Supplement the Motion for Summary Judgment [59] and the Affidavit of Lieutenant Steve French [60]. Mr. Warren responded [65]. 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).

         Defendants' 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 transferred.

         I hold 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 [52] as my own opinion and DENY Defendants' Motion to Dismiss [20].

         DISCUSSION

         I. Failure to Exhaust While in Segregation

         The 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.

         In the supplemental affidavit, Lt. French indicates--and Mr. Warren does not dispute-- that inmates may access grievance procedures while in segregation. Supp. Aff. [60] 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. [60] 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.

         An 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).

         Here, 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 stricter.

         Other 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).

         Thus, Mr. Warren was not required to file his grievance in the four days he was in segregation.

         II. Failure to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.