United States District Court, D. Oregon, Eugene Division
BRIAN A. JEREMIAH, Plaintiff,
v.
MARK NOOTH, Superintendent, SRCI, et at, Defendants.
OPINION AND ORDER
Ann
Aiken, United States District Judge.
In this
prisoner civil rights action, plaintiff Brian A. Jeremiah
sued state defendants in connection with his incarceration at
Snake River Correctional Institute ("SCRI") in
Ontario, Oregon. Magistrate Judge Coffin filed his Findings
and Recommendation ("F&R") on December 18,
2017, recommending this Court grant defendants' motion
for summary judgment. The F&R is now before me pursuant
to 28 U.S.C. § 636(b) and Fed. Civ. R. P. 72. I review
de novo those portions of the F&R to which
objection is made. 28 U.S.C. § 636(b)(1)(C);
Fed.R.Civ.P. 72(b)(3); Holder v. Holder, 392 F.3d
1009, 1022 (9th Cir. 2004).
Following
a de novo review, I find no error. Plaintiff objects
to every aspect of Judge Coffin's F&R, often in
general terms.[1] Numerous courts have held that where a
plaintiff only makes general objections, rather than specific
objections, to an F&R, de novo review is not
required. 28 U.S.C. § 636(b)(1)C); Fed.R.Civ.P.
72(b)(3); Grady v. Biter, 2016 WL 537175, *2 (S.D.
Cal. Feb. 10, 2016); Alcantara v. McEwen, 2013 WL
4517861, *1 (S.D. Cal. Aug. 15, 2013) (citing numerous
cases).
However,
because plaintiff is pro se, I have carefully
considered even his general objections. I explain only the
closest question, plaintiffs objection to Judge Coffin's
finding that, with respect to his claims that he was denied
the opportunity to adequately decontaminate after he was
pepper sprayed (claims 6, 10, and 11), plaintiff exhausted
his administrative remedies before filing his tort suit.
Plaintiff
first argues that he exhausted his administrative remedies
with respect to the claims concerning pepper spray
decontamination. Plaintiff claims that, on August 21, 2015,
he was in the SCRI dayroom when he received a threat from
another inmate. He reported the threat to a corrections
officer, Officer Dotson. Officer Dotson asked him to identify
who made the threat, and when plaintiff could not, Officer
Dotson asked plaintiff to stay within his unobstructed view
while he dealt with the situation. Plaintiff then pointed out
who he believed had made the threat and sat back down in the
dayroom. Another inmate then grabbed a shelf off the wall and
began beating plaintiff with it. At that time, Officer Dotson
told the imnates to stop fighting, called for a response
team, and deployed pepper spray, which hit both the plaintiff
and his assailant. Another officer arrived and also deployed
his pepper spray. Plaintiff claims that he was not allowed to
shower for two days after this incident, and that he was only
given two wet towels to clean off the pepper spray residue.
Plaintiff
claims that he exhausted the grievance process with regards
to this incident by filing an initial grievance on August 29,
2015. That grievance addressed both the pepper spraying
itself and the failure to allow plaintiff to decontaminate
himself afterwards. On September 18, 2015, the initial
grievance was accepted, and on October 12, 2015, it was
denied. On October 17, 2015, plaintiff filed his first
grievance appeal, on October 21, 2015, it was accepted, on
December 22, 2015, it was denied. On December 26, 2015,
plaintiff filed his second appeal. Between December 28, 2015,
and January 7, 2016, plaintiff and the prison administration
corresponded to determine the possession of the original
documents plaintiff submitted, and on January 14, 2016, the
second appeal was accepted. Plaintiff was told he should
await a response. Plaintiff claims he waited over 60 days for
a response, when 30 days is provided for in the relevant
regulation, See Or. Admin. R. 291-109-0170.
Therefore, plaintiff asserts, these claims were exhausted,
and the filing of his tort claim was appropriate.
However,
the record shows that plaintiff gave his tort claim notice on
January 21, 2016, only one week after his appeal was
accepted. Pursuant to the prison administration's tort
claim notice procedure, the notice stopped the processing of
plaintiffs second appeal. Because plaintiff cut off the
still-pending grievance process by filing suit, he did not
exhaust his available administrative remedies.
In the
alternative, plaintiff asserts that his failure to exhaust
should be excused because he filed this lawsuit before his
second appeal was resolved due to his mistaken impression
that the statute of limitations would not toll while he
completed the administrative appeals process. The Oregon Tort
Claims Act generally requires tort claims against a public
body such as a state prison to be filed within 180 days of
"the alleged loss or injury." Or. Rev. Stat. §
3O.275(2)(b). That statute may seem as if it gives a hard
deadline of 180 days after the alleged loss or injury, but it
is well-established that state statutes of limitations must
be tolled while prisoners complete the mandatory exhaustion
process. Brown v. Valoff, 422 F.3d 926, 943 (9th
Cir. 2005). Plaintiffs ignorance of the law on this point
does not excuse his failure to exhaust administrative
remedies. See Sapp v. Kimbrell, 623 F.3d 813, 827
(9th Cir. 2010) (a prisoner's good faith but unreasonable
belief that he could not proceed with the grievance process
does not excuse failure to exhaust).
I agree
with Judge Coffin's finding that plaintiff failed to
exhaust the claims related to pepper spray decontamination.
Though the administrative grievance process may feel
cumbersome and slow to plaintiff it is well established that
a prisoner must exhaust administrative remedies before filing
suit.
I ADOPT
Judge Coffin's F&R (doc. 61). Defendants' motion
for summary judgment (doc. 40) is GRANTED and this case is
DISMISSED.
IT IS
SO ORDERED.
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Notes:
[1] Plaintiff opens his objections by
accusing Judge Coffin of "blatant bias" and of
"ignor[ing]" all of plaintiffs arguments
"regardless of precedent." Obj. F&R 1. Nothing
indicates that Judge Coffin departed from his duty to fairly
and ...