United States District Court, D. Oregon
OPINION AND ORDER
HONORABLE PAUL PAPAK UNITED STATES MAGISTRATE JUDGE
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.
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.
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.
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).
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
The Administrative Remedy Program at SRCI
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.
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).
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.
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
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
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