United States District Court, D. Oregon
OPINION AND ORDER ORDER
Michael J. McShane United States District Judge.
an inmate currently at Eastern Oregon Correctional
Institution (EOCI), filed suit pursuant to 42 U.S.C. §
1983 alleging deliberate indifference to his serious medical
needs and retaliation. Defendants now move for summary
judgment under Federal Rule of Civil Procedure 56 on all
claims. For the reasons set forth below, defendants'
motion is granted.
complaint, plaintiff alleges that defendants refused to
acknowledge his broken ankle and provided him with only a
“boot” and failed to provide an inhaler for his
asthma. (ECF No. 2) Defendants move for summary judgment on
grounds that plaintiff failed to exhaust his available
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, 747 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).
the Prison Litigation Reform Act (PLRA), inmates must exhaust
all available administrative remedies before filing a federal
action to redress prison conditions or incidents.
See 42 U.S.C § 1997e(a) (“No action shall
be brought with respect to prison conditions under section
1983 of this title, or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility
until such administrative remedies as are available are
exhausted.”). The exhaustion requirement is mandatory
and requires compliance with both procedural and substantive
elements of the prison administrative process. Woodford
v. Ngo, 548 U.S. 81, 85, 90 (2006); McKinney v.
Carey, 311 F.3d 1198, 1199-1200 (9th Cir. 2002) (per
curiam). If the defendant shows that the inmate did not
exhaust an available administrative remedy, “the burden
shifts to the prisoner 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, 747
F.3d at 1172; see also Sapp v. Kimbrell, 623 F.3d
813, 822 (9th Cir. 2010) (the PLRA does not require
exhaustion when administrative remedies are
“effectively unavailable”); Brown v.
Valoff, 422 F.3d 926, 937 (9th Cir. 2005) (an
administrative remedy must be available “as a practical
Oregon Department of Corrections (ODOC) employs a three-step
grievance and appeal process. Or. Admin. R. 291-109-0140.
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 not appeal and must 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 a response to the grievance
within 14 calendar days. Id. 291-109-0170(1)(b). If
the first appeal is denied, the inmate may file a second
appeal within 14 days of the date the denial was sent to the
inmate. Id. 291-109-0170(2)(c). A decision following
a second appeal is final and not subject to further review.
first claim, plaintiff alleges that defendants did not
properly treat his existing ankle injury in September 2016
and also in December 2016, when plaintiff reinjured his ankle
“while exercising” in an EOCI gym building.
Compl. at 3, 5. Plaintiff filed two grievances regarding the
alleged failure to treat his ankle. Sobotta Dec. ¶¶
January 4, 2017, EOCI received Grievance No.
EOCI.2017.01.012, in which plaintiff claimed that defendants
were not properly treating his ankle. Id. Att. 4 at
2. On January 20, 2017, Nurse Purcell responded to
plaintiff's grievance and explained that he had received
proper treatment, including an examination and x-rays.
Id. Att. 4 at 1. On February 10, 2017, EOCI received
Grievance No. EOCI.2017.02.014 and plaintiff again claimed
that he was not receiving adequate medical treatment for his
ankle. Id. Att. 5 at 2. On March 27, 2017, Nurse
Purcell thoroughly responded to plaintiff's grievance.
Id. Att. 5 at 1. Plaintiff did not appeal either
response. Sobotta Dec. ¶¶ 11-12. Accordingly,
plaintiff failed to exhaust his administrative remedies for
second claim, plaintiff alleges that defendants denied him an
inhaler when he was first transferred to Oregon correctional
facilities and continued to deny him an inhaler at EOCI.
Compl. at 3, 5. Plaintiff filed one grievance regarding this
April 17, 2017, EOCI received Grievance No. EOCI.2017.04.077
about plaintiff's need for an inhaler. Sobotta Decl.
¶ 13 & Att. 6 at 2. On June 5, 2017, plaintiff's
grievance was rejected because he had filed a tort claim
notice that was received on April 14, 2017. Id.
¶¶ 13-14 & Att. 6 at 1, Att. 7; Or. Admin. R.
291-109-0140(3)(g) (ODOC inmates may not grieve
“[c]laims or issues for which the inmate has filed a
Notice of Tort”). Consequently, plaintiff did not
complete the administrative grievance procedure before filing
a tort claim notice, and he failed to exhaust his
administrative remedies. See Vega v. Bell, No.
2:13-cv-00931-HU, 2015 WL 413796, at *5 (D. Or. Jan. 29,
response to defendant's motion, plaintiff does not allege
that administrative remedies were effectively unavailable.
Rather, he argues that he is not required to establish
exhaustion in his complaint. While plaintiff is correct, this
case is beyond the pleading stage, and he must present
evidence showing the existence of a genuine issue of material
fact regarding exhaustion. Albino, 747 F.3d at 1169.
Plaintiff fails to do so, and his claims are barred under the
PLRA for failure to exhaust his administrative remedies.
reasons explained above, plaintiff's claims are barred,
and defendant's Motion for Summary Judgment (ECF No. 8)