United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
MICHAEL W. MOSMAN, J.,
Colby Aplin is proceeding pro se in this 42 U.S.C.
§ 1983 civil rights action. In her Amended Complaint
 and the "Supplement" to her Amended Complaint
, she alleges that Defendants Oregon Department of
Corrections (ODOC), Colette Peters, Steve Shelton, Stephen
Cook, Ashley Clements, Garth Gulick, Aimee Hughes, Judy
Bradford, and Cari Crites (Defendants) violated her Eighth
and Fourteenth Amendment rights while she was incarcerated
within ODOC. Defendants seek summary judgment on Ms.
Aplin's claims on the grounds that she failed to exhaust
her prison administrative remedies before filing this civil
rights action. For the reasons explained below, I GRANT
Defendants' Motion for Summary Judgment  and dismiss
this case with prejudice.
had custody of Ms. Aplin from August 5, 2014, until October
5, 2017. Since her release from ODOC's custody in October
2017, Ms. Aplin has been out of custody for approximately 7
days; otherwise, Multnomah County has had custody of her on
new criminal charges, and Ms. Aplin is currently in Multnomah
County's custody awaiting trial. See Multnomah
Co. Circuit Court Case Nos. 17CR66725 and
18CR09982. Ms. Aplin filed this action on July 21,
2017 while still in ODOC's custody. She filed her Amended
Complaint and Supplement on November 27, 2018, while
incarcerated by Multnomah County. The record in this case
reflects that Ms. Aplin did not file any documents in this
action during the approximately seven days she was not in
Aplin claims the Defendants violated her Eighth Amendment
rights by acting with deliberate indifference to her serious
medical needs in a variety of ways, including not scheduling
a colonoscopy or "EGD" for her. [26 at pp.7-9 and
27 at pp.6-10]. Ms. Aplin also alleges Defendants violated
her Fourteenth Amendment rights by placing her in an all-male
facility (Snake River Correctional Institution) and labeling
her transgendered and as suffering from gender dysphoria. [26
at pp. 10-11]. Ms. Aplin's labeling claim is based on her
argument that she has the right to express and define herself
outside of ODOC's labeling process. (Id.).
has administrative rules regarding filing and processing
grievances. [60 at ¶ 6]. Inmates learn about these rules
during their inmate orientation and in their prisoner
handbooks. Id. at ¶¶ 6 and 8. Inmates can
ask any housing unit officer for a grievance form, and
grievance instructions are available with the grievance
forms. Id. at ¶ 8. ODOC's rules generally
require that inmates submit grievances within thirty calendar
days of the event giving rise to the grievance. Id.
at ¶ 11. When a grievance is accepted, staff provide the
inmate an initial response within forty-five days, unless the
grievance requires further investigation. Id. at
¶ 12. If the inmate is dissatisfied with the initial
response to a grievance, he or she may appeal the denial in a
two-level system of review. Id. at ¶ 14. The
inmate must file the first level of appeal within fourteen
calendar days after the grievance coordinator sent the
initial response to the inmate. Id. at ¶ 15. A
functional unit manager reviews the first-level appeal.
inmate is not satisfied with the functional unit
manager's response, the inmate may appeal by filing a
second-level appeal within fourteen calendar days from the
date the first grievance appeal was sent to the inmate.
Id. at ¶ 16. An assistant director conducts the
second level appeal. Id. at ¶17. The assistant
director issues a final administrative decision. Id.
incarcerated within ODAC, Ms. Aplin filed twenty-three
grievances and five discrimination complaints. Id.
at¶18. ODAC has identified three grievances and
discrimination complaints that pertain to Ms. Aplin's
claims in this case. Id. at ¶¶ 19-22. All
three grievances or complaints identified by Defendants
relate to lack of care for polyps or a wart. Id.
ODAC's records show that Ms. Aplin did not exhaust any of
these three grievances or complaints. Id.
filed their Motion for Summary Judgment on April 26, 2018. On
April 27, 2018, 1 issued a Summary Judgement Advice Notice
and Scheduling Order. . As well as setting deadlines for
Ms. Aplin's Response, the Order explained that, if
granted, Defendants' Summary Judgment Motion could end
Ms. Aplin's case and explained what Ms. Aplin needed to
do to oppose the Motion. (Id.). Ms. Aplin filed a
ninety-nine page response along with several declarations on May
31, 2018. , , , and . She filed a second
opposition and declaration on June 18, 2018.  and .
Defendants filed replies to all of Ms. Aplin's reponses.
 and .
summary judgment, the moving party bears the initial burden
of pointing out the absence of a genuine issue of fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
This burden is met either by "produc[ing] evidence
negating an essential element of the nonmoving party's
claim or show[ing] that the non-moving party does not have
enough evidence of an essential element to carry its ultimate
burden of persuasion at trial." Nissan Fire &
Marine Ins. Co., Ltd. v. Fritz Companies, Inc., 210 F.3d
1099, 1103 (9th Cir. 2000). If the moving party carries its
burden, the burden shifts to the non-moving party to set
forth evidence to support its claim and to show there is a
genuine issue of fact for trial. Id. The court views
the record in the light most favorable to the non-moving
party. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986) (quotations and citation
omitted). This is especially true when the non-movant is a
pro se litigant. Garaux v. Pulley, 739 F.2d
437, 439 (9th Cir. 1984) (stating pro se pleadings
are liberally construed, particularly where civil rights
claims are involved). Where the record taken as a whole could
not lead a rational trier of fact to find for the non-moving
party, there is no genuine issue for trial."
Matsushita, 475 U.S. at 587 (quotations and citation
argue for summary judgment on Ms. Aplin's claims against
them because Ms. Aplin did not exhaust her administrative
remedies before bringing this lawsuit. In her Opposition to
Defendants' Motion, Ms. Aplin provides evidence that she
complained that she did not receive adequate medical care
while incarcerated within ODOC and filed grievances about the
lack of care. She does not, however, provide any evidence
that she exhausted any of the grievances she filed about her
lack of medical care or that she filed any grievances
regarding ODOC's labeling her transgender or as suffering
from gender dysphoria. For example, the declaration of one of
Ms. Aplin's lawyers, Brian Schmonsees, states that Ms.
Aplin suffered from a serious medical condition and told him
that ODOC refused to treat her condition but makes no mention
of Ms. Aplin's efforts to exhaust her administrative
remedies. . Similarly, the declaration of Ms. Aplin's
sister-in-law, Mumta Purohit, is silent with regard to Ms.
Aplin's exhaustion of her grievances but asserts that Ms.
Aplin complained about her medical care while incarcerated by
Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e,
requires prisoners to exhaust all administrative remedies
before they file an action in federal court. Woodford v.
Ngo,548 U.S. 81, 88 (2006). Prisoners must exhaust
their prison administrative procedures regardless of the type
of relief sought and the type of relief available through
administrative procedures. Morton v. Hall, 599 F.3d
942, 945 (9th Cir. 2010). "[O]nly those individuals who
are prisoners (as defined by 42 U.S.C. § 1997e(h)) at
the time they file suit must comply with the exhaustion
requirements of 42 U.S.C. § 1997e(a)."
Talamantes v. Leyva,575 F.3d 1021, 1024 (9th Cir.
2009) (concluding that because Talamantes was released from
custody over a year before filing his action in federal
court, he was not required to exhaust administrative remedies
before filing his action). The PLRA defines a prisoner as
"any person incarcerated or detained in any ...