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Green v. Larkin

United States District Court, D. Oregon

May 23, 2018

KELLY FOSTON GREEN, Plaintiff,
v.
SGT. LARKIN, Defendant.

          FINDINGS AND RECOMMENDATION

          THOMAS COFFIN JUDGE

         Plaintiff, an inmate at the Coffee Creek Correctional Facility, filed suit under 42 U.S.C. § 1983 alleging the use of excessive force and arguably the failure to provide medical treatment.[1] Defendants now move for summary judgment on grounds that plaintiffs claims are barred for failure to exhaust available administrative remedies. For the following reasons, defendant's motion should be granted.

         DISCUSSION

         To prevail on summary judgment, defendant must show that 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); see also 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).

         Under 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 § 1997e(a). The exhaustion requirement is mandatory and requires compliance with both procedural and substantive elements of the prison grievance process. Woodford v. Ngo, 548 U.S. 81, 85, 90 (2006). Specifically, 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). 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, 141 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 matter").

         The Oregon Department of Corrections (ODOC) employs a three-step grievance and appeal process. Or. Admin. R. 291-109-0140. 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." 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)(a). If a grievance is accepted and responded to, 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). 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. Id. 291-109-0170(2)(f).

         As defendant points out, plaintiff asserted that she did not file a grievance about the allegedly unwarranted use of force or the denial of medical care. Compl. at 2. In response to defendant's motion for summary judgment, plaintiff likewise does not dispute defendant's assertion that she failed to pursue the ODOC grievance process regarding the incident underlying her claims. Instead, plaintiff filed an affidavit describing how Sgt. Larkin ordered guards to "get her" even though plaintiff was simply standing with her hands up, and how she was "slammed" on the floor while restrained. Pi's Aff. at 1-2 (ECF No. 21). As stated above, plaintiff cannot file a claim in federal court arising from defendant's conduct unless she first exhausted her administrative remedies. Plaintiff does not dispute that she did not exhaust these remedies and defendant is entitled to summary judgment.

         CONCLUSION

         Defendant's Motion for Summary Judgment (ECF No. 17) should be GRANTED and this case should be dismissed. This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order.

         The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.

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Notes:

[1]As noted by defendant, plaintiff cited the Oregon Constitution to support her claim, which does not invoke this Court's jurisdiction. Compl. at 4 (ECF No. 2). However, this Court must construe plaintiffs complaint liberally, and so construed, she alleges the use of excessive force through Sgt. Larkin's order to "take down" plaintiff and the ...


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