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Lee v. Gulick

United States District Court, D. Oregon

June 26, 2018

DERRYEL LEE, Plaintiff,



         Plaintiff Denyel Lee, an inmate of the Snake River Correctional Institution ("SRCI"), filed this action pro se and in forma pauperis against defendants Brad Cain, G, Gulick, Mr. DeFrance, Wick, Ms. Hughes, First Btts Counselor, Ms. Curtis, S. Cook, S. Meehem, Dr. Koltes, Mr. Taylor, M. Peterson, Mr. White, Medical Dept., M. Nooth, Steve Shelton, and several fictitiously named defendants on January 9, 2017. On March 22, 2017, Judge King dismissed Lee's claims in part, and expressly granted leave for Lee to amend his complaint to cure the deficiencies identified therein. Lee amended his complaint effective June 26, 2017, abandoning his claims to the extent alleged against Cain, Hughes, First Btts Counselor, S. Cook, S. Meehem, Mr. Taylor, M. Peterson, M. Nooth, Medical Dept, and the fictitiously named defendants. By and through his complaint, Lee alleges that remaining defendants Gulick, Koltes, Shelton, Wick, Curtis, White, and DeFrance willfully failed to provide him with appropriate medical care, including in particular pain management care. Arising out of the foregoing, Lee alleges the remaining defendants' liability under 42 U.S.C. § 1983 for the violation of his Eighth Amendment right to freedom from cruel and unusual punishment. Lee seeks injunctive relief to enjoin Gulick and Koltes from further involvement in his medical care and to enjoin the other remaining defendants to provide him with treatment appropriate to his medical condition, as well as award of $2, 000, 000 in damages for pain and suffering, and award of his costs and fees incurred herein. This court has federal question jurisdiction over Lee's action pursuant to 28 U.S.C. § 1331.

         Now before the court is defendants' motion (#37) for summary judgment, by and through which defendants argue that Lee has failed to exhaust all administrative remedies available to him at SRCI regarding defendants' complained-of conduct, depriving this court of jurisdiction to consider Lee's claim pursuant to the Prison Litigation Reform Act (the "PLRA"). I have considered the motion and all of the pleadings and papers on file. For the reasons set forth below, defendants' motion is denied in its entirety.


         Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A party taking the position that a material fact either "cannot be or is genuinely disputed" must support that position either by citation to specific evidence of record "including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials," by showing that the evidence of record does not establish either the presence or absence of such a dispute, or by showing that an opposing party is unable to produce sufficient admissible evidence to establish the presence or absence of such a dispute. Fed.R.Civ.P. 56(c). The substantive law governing a claim or defense determines whether a fact is material. See Moreland v. Las Vegas Metro. Police Dep't, 159 F.3d 365, 369 (9th Cir. 1998).

         Summary judgment is not proper if material factual issues exist for trial. See, e.g., Celotex Corp. v. Catrelt, 477 U.S. 318, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995). In evaluating a motion for summary judgment, the district courts of the United States must draw all reasonable inferences in favor of the nonmoving party, and may neither make credibility determinations nor perform any weighing of the evidence. See, e.g., Lytle v. Household Mfg., Inc., 494 U.S. 545, 554-55 (1990); Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150 (2000).


         I. The Parties

         Plaintiff Lee is an incarcerated prisoner housed at all material times at the Snake River Correctional Institution, Defendants Gulick and Koltes are alleged to be physicians employed by SRCI to provide medical services to its inmates. Defendant Shelton is the Medical Director of ODOC. Defendants Wick, Curtis, and White are alleged to be nurses employed by SRCI to provide medical services to its inmates. Defendant DeFrance is alleged to be a security officer employed by SRCI.

         II. Material Facts

         A. The Administrative Remedy Program at SRCI

         Lee has at all material times been housed at SRCI. At SRCI, Lee had available to him a three-level grievance procedure consistent with the regulations set forth in Chapter 291, Division 109 of the Oregon Administrative Rules.

         Pursuant to the SRCI grievance procedures and applicable Oregon Administrative Rules, "[i]f an inmate is unable to resolve an issue through informal communications, ... the inmate [may] seek resolution of the issue by submitting a written grievance using the department's approved inmate grievance form (CD 117). . .." OAR-291-109-0140(1)(a). Any such grievance "must include a complete description of the incident, action, or application of the rule being grieved, including date and approximate time," and should be accompanied by any referenced documents. OAR-291-109-0140(1)(b). Matters, actions, and incidents that an inmate may properly grieve are the "misapplication of any administrative directive or operational procedure," the "lack of an administrative directive or operational procedure," any "unprofessional behavior or action which may be directed toward an inmate by an employee or volunteer of [ODOC] or the Oregon Corrections Enterprises," any "oversight or error affecting an inmate," any "program failure as defined in ... OAR-291-077-0020," except where such failure was caused by the inmate's misconduct, the "loss or destruction of [the inmate's] property," sexual conduct between an ODOC employee and an inmate, or sexual abuse of an inmate by another inmate. OAR-291 -109-0140(2). "An inmate grievance may request review of just one matter, action, or incident per inmate grievance form." OAR~291-109-0140(1)(d). Similarly, inmates are not permitted to grieve the actions of more than one ODOC employee through a single grievance form, but rather must file one grievance form per ODOC employee whose actions are the subject of the inmate's challenge. See OAR-291 -109-0140(5). In addition, inmates are not permitted to grieve any claim or issue "that the inmate is pursuing in pending litigation in state or federal courts." OAR-291-109-0140(3)(h). A grievance will not be processed unless it is received by the applicable grievance coordinator on form CD 117 "within 30 calendar days of the date of the incident giving rise to the grievance." OAR-291-109-0150(2).

         Inmates are permitted to file "no more than two initial inmate grievances in any one week or six in any calendar month," other than grievances regarding sexual abuse, and other than separate grievances grieving multiple ODOC staff members in connection with the same incident. OAR-291-109-0180(1). Grievances filed in excess of those limits are summarily denied with the notation that the inmate has committed "abuse" of the grievance system. Id.

         Upon receipt of an inmate grievance, a grievance coordinator is required to "assign the grievance a number," date stamp the grievance, "and record its receipt in an inmate grievance log" and to "send a grievance receipt to the inmate." OAR-291~109-0160(1) and (1)(a). The grievance coordinator is then required to coordinate with the ODOC employee best suited to respond to the grievance, and to send the inmate's grievance to that person "for reply," OAR- 291-109-0160(1)(b). The response must "be returned to the grievance coordinator for processing within 21 calendar days." OAR-291-109-0160(1)(c). Following such processing, the grievance coordinator is required to send the inmate copies of both the grievance and the response, and to retain copies for the grievance coordinator's files, all within "45 days from the date the grievance was received" by the grievance coordinator, "unless further investigation is necessary." OAR-291-109-0160(2). In the event the grievance coordinator fails to complete processing of the grievance within 45 days of its receipt, "the grievance coordinator will make an effort to notify the inmate of the status of the grievance." Id. "If the inmate does not receive a response within the allotted time frame, he/she may contact the grievance coordinator." Id.

         "If at any time the grievance coordinator determines the inmate has pursued his/her grievance through state or federal courts, the grievance process will cease and the grievance will be returned to the inmate." OAR-291-109-0160(4). "A grievance that has been returned to [an] inmate by the grievance coordinator for procedural reasons cannot be appealed." OAR-291-109-0160(5).

         An inmate may appeal the institutional response to the inmate's grievance by and through "the grievance appeal form (CD 117c)." OAR-291-109-0170(1)(a). Any such appeal "must be submitted to the grievance coordinator together with the original grievance, attachments, and staff response(s)." Id. The scope of the originally submitted grievance cannot be expanded on appeal, and the inmate is not permitted to add new information regarding the grieved incident on appeal, except where such information was unavailable to the inmate at the time the original grievance was filed. See Id. Any such appeal must be received by the grievance coordinator "within 14 days from the date that the grievance response was sent to the inmate from the grievance coordinator." OAR-291-109-0170(1)(b). The grievance coordinator is required to send the appeal to the "functional unit manager," who is required to ...

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