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Woodroffe v. Rosenblum

United States District Court, D. Oregon

September 28, 2018

ROBERT WOODROFFE, Plaintiff,
v.
ELLEN ROSENBLUM; SHANNON VINCENT; VICTOR BEERBOWER; COLLETTE PETERS; MICHAEL GOWER; JOHN MYRICK; JILL CURTIS; CAPTAIN PEDRO; CAPTAIN IVERSON; CAPTAIN LYTLE; LT. R.A. YOUNG; LT. BOSTON; LT. EDISION; SGT. HAGA; SGT. HOSKINS; SGT. PRIMMER; MR. HILLMICK; MS. KRUEGER; MS. SHORT; LT. STEWART; MICHAEL MAHONEY; ROBERT H. KING JR.; DR. SHELTON; DR. NORTON; JAMES DEACON; SGT. WILSEN; LEONARD WILLIAMSON; MR. D. GREEN; MICHAEL JORDEN, the State Defendants are sued in their individual and official capacities, Defendants.

          FINDINGS AND RECOMMENDATION

          STACIE F. BECKERMAN, UNITED STATES MAGISTRATE JUDGE.

         Pending before the Court are nine motions seeking, among other things, dismissal on all remaining claims of self-represented plaintiff Robert Woodroffe (“Woodroffe”), an inmate at Two Rivers Correctional Institution (“TRCI”).[1] Additionally, Woodroffe filed a cross-motion for summary judgment against Defendant Robert J. King, a fellow inmate. (ECF No. 127.) In his Third Amended Complaint (“TAC”), Woodroffe alleged violations of the First, Eighth, and Fourteenth Amendments and a state law claim for intentional infliction of emotional distress (“IIED”).[2] (ECF No. 15.) For the reasons set forth below, this Court recommends that the district judge grant the State Defendants' motion for summary judgment and Defendant King's Motion to Dismiss, and deny all other motions.

         LEGAL STANDARD

         Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). On a motion for summary judgment, the court must view the facts in the light most favorable to the non-moving party, and all reasonable inferences must be drawn in favor of that party. Porter v. Cal. Dep't of Corr., 419 F.3d 885, 891 (9th Cir. 2005). The court does not assess the credibility of witnesses, weigh evidence, or determine the truth of matters in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quotations and citation omitted).

         DISCUSSION

         Woodroffe's surviving claims brought pursuant to 42 U.S.C. § 1983 are a First Amendment retaliation claim against defendants Pedro, Iverson, Lytle, Young, Short, and King; an Eighth Amendment deliberate indifference claim against defendant Dr. Shelton; and a Fourteenth Amendment Due Process claim against defendants Curtis, Green, and Jorden.

         I. FIRST AMENDMENT RETALIATION

         A. Woodroffe's Allegations

         1. Against Defendant Pedro

         Woodroffe alleges that Pedro failed to take disciplinary action against King despite knowing that King paid people to harm Woodroffe. (TAC ¶¶ 74-77.) According to Woodroffe, Pedro failed to protect him from King “due to [Woodroffe's] law suits and torts.” (TAC ¶ 76.)

         2. Against Defendant Iverson

         Woodroffe alleges that Iverson confiscated “1/2 his property and some being legal material and to this date still has it out of retaliation.” (TAC ¶ 83.) Additionally, Woodroffe claims that Iverson held him in administrative segregation “based on protected right in filing civil action and or giving another legal advice.” (TAC ¶ 84; see also id. at ¶ 90 (alleging that Iverson and others were responsible for Woodroffe “wrongly” spending “31 days” in segregation); id. at ¶ 92 (alleging that Iverson was responsible for an additional seven days of segregation).) Finally, Woodroffe alleges that Iverson “has held up all incoming mail and out going mail to retaliate and harass [Woodroffe].” (TAC ¶ 93.)

         3. Against Defendants Lytle and Young

         Woodroffe alleges that Lytle and Young filed a misconduct report in November 2014, solely in retaliation for a tort claim filing. (TAC ¶ 80.) Additionally, Woodroffe alleges that in early 2016, Lytle “pull[ed Woodroffe] into the office and threaten[ed Woodroffe] with segregation any time he wants on a made up investigation for any reason for 30 days . . . .” (TAC ¶ 82.) Woodroffe contends Lytle's actions “were based on retaliation . . . .” (TAC ¶ 81.) Woodroffe alleges that Young assisted Lytle in the actions described above. (TAC ¶ 82.)

         4. Against Defendant Short

         Woodroffe alleges that Short “retaliated against [Woodroffe] when she worked in concert with . . . King” to create false misconduct reports. (TAC ¶¶ 46, 103-105.)

         5. Against Defendant King

         Woodroffe alleges that King conspired with the State Defendants “to set [Woodroffe] up for false misconduct to retaliate against [Woodroffe] . . . .” (TAC ¶ 42.)

         B. Parties' Arguments

         1. Defendants Pedro, Iverson, Lytle, Young, and Short

         The five named State Defendants seek dismissal of Woodroffe's First Amendment retaliation claim on four grounds: (1) some claims are barred as untimely, (2) Woodroffe failed to exhaust administrative remedies as to some claims, (3) Woodroffe is unable to satisfy a prima facie case for retaliation, and (4) Pedro, Lytle, Young, and Short are entitled to qualified immunity. (Defs.' Mot. Summ. J. 16.)

         As discussed below, the Court finds that entry of summary judgment on Woodroffe's First Amendment retaliation claims is appropriate on the grounds of exhaustion and failure to present a prima facie case. As such, the Court does not reach the State Defendants' statute of limitations and qualified immunity arguments.

         2. Defendant King

         King seeks dismissal of Woodroffe's First Amendment retaliation claim on two grounds: (1) King is not a state actor, and (2) Woodroffe's claim against King is time barred. (Def.'s Mot. Dismiss 3.) As discussed below, the Court agrees that King is not a state actor. As such, the Court does not reach King's alternative ground for dismissal.

         C. Analysis

         1. Defendants Pedro, Iverson, and Lytle

         a. The PLRA's Exhaustion Requirement

         As a threshold matter, Defendants Pedro, Iverson, and Lytle argue that Woodroffe failed to exhaust administrative remedies prior to filing his civil rights complaint in federal court. (Defs.' Mot. Summ. J. 17.) As support for their exhaustion argument, the State Defendants rely on the Declaration of Arnell Eynon, TRCI's Grievance Coordinator and an Oregon Department of Corrections (“ODOC”) custodian of records.[3] In opposition, Woodroffe argues that the State Defendants are untruthful in their statement that he failed to exhaust his administrative remedies. (Pl.'s Opp. 20.)

         The Prison Litigation Reform Act (“PLRA”), amended 42 U.S.C. § 1997e, requires that prisoners exhaust “such administrative remedies as are available” before filing suit challenging prison conditions in federal court. 42 U.S.C. § 1997e(a). “If a prisoner had full opportunity and ability to file a grievance timely, but failed to do so, he has not properly exhausted his administrative remedies.” Marella v. Terhune, 568 F.3d 1024, 1028 (9th Cir. 2009).

         Once a defendant shows there was an available administrative remedy and the prisoner did not exhaust that available remedy, the prisoner has the burden of production to come forward with evidence showing there is something in his case “that made the existing and generally available administrative remedies effectively unavailable to him.” Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014). A prisoner's failure to exhaust may be excused if he can demonstrate that the grievance process is unavailable to him because (1) “administrative procedures [are] unavailable, ” (2) “prison officials obstructed [the prisoner's] attempt to exhaust, ” or (3) prison officials failed to follow grievance-processing protocol. Nunez v. Duncan, 591 F.3d 1217, 1224 (9th Cir. 2010). An administrative remedy is not considered to have been available if a prisoner, through no fault of his own, was prevented from using the process. Id. To be available, “a remedy must be capable of use for the accomplishment of its purpose.” Id.

         The grievance procedure available to Oregon inmates, such as Woodroffe, is explained in ODOC's Administrative Rules governing Grievance Review System (Inmate), set forth in Chapter 291, Division 109, of the Oregon Administrative Rules. See Or. Admin. R. (“OAR”) 291-109-0100 et. seq. (“Inmate Communication and Grievance Review System”). ODOC has a three-level grievance and appeal process in place to address inmate complaints. Id.

         Inmates may file grievances regarding several issues, including “unprofessional behavior or action which may be directed toward an inmate by an employee or volunteer.” OAR 291-109-0140. Inmates are encouraged to communicate grievances informally with first-line staff as their primary means of resolving disputes, prior to filing a formal grievance. Id. at 291-109-0140(1)(a).

         If the initial communication does not resolve the grievance, the inmate may proceed to level one by completing a grievance form. Id.If the matter is not an emergency, grievance forms must be filed with the grievance coordinator within thirty days of the aggrieving incident, and contain “a complete description of the incident, action, or application of the rule being grieved including date and approximate time.” Id. at 291-109-0140(1)(b) and 291-109-0150(2). An inmate cannot grieve misconduct reports, or issues for which the inmate has already filed suit in state or federal court. Id. at 291-109-0140(3)(e), (i).

         At level two, an inmate may appeal the grievance coordinator's decision regarding the inmate's level-one grievance form, to the functional unit manager. Id. at 291-109-0170(1). The inmate must file a grievance appeal form with the grievance coordinator within fourteen days of the date ODOC sent the level-one grievance response to the inmate. Id. at 291-109-0170(1)(b).

         At level three, the inmate may appeal the decision made by the functional unit manager by filing an additional grievance appeal form with the grievance coordinator within fourteen days of the date ODOC sent the level-two grievance response to the inmate. Id. at 291-109-0170(2). This level-three appeal satisfies the administrative remedies exhaustion requirement under 42 U.S.C. § 1997e(a).

         b. Woodroffe's Grievance Process[4]

         1) Grievance No. TRCI-2015-10-058

         In TRCI-2015-10-058, Woodroffe grieved Pedro for allegedly “circumvent[ing]” Woodroffe's effort to mail a letter. (Eynon Decl. Attach. 3 at 4.) Woodroffe expressed a concern that Pedro has “got it out for [him].” (Id.) Following Pedro's written response to TRCI-2015-10-058, Woodroffe filed a first-level appeal. (Eynon Decl. Attach. 3 at 2.) Woodroffe took no further action after the TRCI superintendent responded to his initial appeal. (Eynon Decl. ¶ 7, Attach. 3 at 1.) Accordingly, Woodroffe did not complete the grievance review process for TRCI-2015-10-058.

         2) Grievance No. TRCI-2014-06-007

         In TRCI-2014-06-007, Woodroffe grieved Pedro's placement of Woodroffe in segregation following an attack by another inmate. (Eynon Decl. Attach. 4 at 2.) The grievance coordinator returned TRCI-2014-06-007 to Woodroffe as non-compliant with ODOC's grievance process. (Eynon Decl. Attach. 4 at 2 (“Per DOC Rule, inmates can't grieve any part of the investigative process as it relates to a misconduct report.”).) Woodroffe did not take any further action.

         3) Grievance No. TRCI-2016-02-175

         In TRCI-2016-02-175, Woodroffe grieved Iverson's confiscation of his property and the failure to provide a “shakedown report” following the property confiscation. (Eynon Decl. Attach. 5 at 7.) While there is no dispute that Woodroffe completed the grievance review process for TRCI-2016-02-175, the record shows that Woodroffe filed his TAC prior to exhausting the process for the property confiscation claims against Iverson. Specifically, Woodroffe filed his TAC on August 11, 2016 (ECF No. 15), and the two-level appeal process for TRCI-2016-02-175 did not conclude until December 12, 2016. (Eynon Decl. Attach. 5 at 1.)

         4) Grievance No. TRCI-2016-03-093

         In TRCI-2016-03-093, Woodroffe grieved Iverson's handling of certain property while Woodroffe was held in administrative segregation. (Eynon Decl. Attach. 6 at 10.) Specifically, Woodroffe alleged that his body wash spilled and ruined a toothbrush and two finger nail clippers. (Id.) There is no dispute that Woodroffe concluded the grievance review process for TRCI-2016-03-093, but not until after he filed his TAC. (Eynon Decl. Attach. 6 at 1 (showing that Woodroffe completed the grievance process on August 19, 2016, i.e., eight days after he filed his TAC).)

         5) Grievance No. TRCI-2016-07-158

         In TRCI-2016-07-158A, Woodroffe grieved Iverson for withholding Woodroffe's mail as retaliation. (Eynon Decl. Attach. 7 at 4.) Woodroffe filed a first-level appeal to Iverson's grievance response. (Eynon Decl. Attach. 7 at 2-3.) ODOC returned Woodroffe's first-level appeal as noncompliant with the Grievance Review System. (Eynon Decl. Attach. 7 at 1 (“Appeals must be filed within 14 calendar days of the date the employee response was sent to the inmate.”).) Woodroffe did not take any further action and as such did not complete the grievance review process for TRCI-2016-07-158.

         6) Grievance No. TRCI-2016-02-009

         Lytle and Young contend that Woodroffe failed to exhaust administrative remedies for Lytle's alleged threat of segregation before Woodroffe filed his TAC. (Defs.' Mot. Summ. J. 14 (“Plaintiff filed a grievance against Captain Lytle on February 1, 2016, which was not complete until August 10, 2016.”) Although Woodroffe's “Inmate Complaint History” shows that he filed a grievance against Lytle and Young on February 1, 2016 (TRCI-2016-02-009), [5] the Eynon Declaration does not include any documentation for TRCI-2016-02-009. (Eynon Decl. Attach. 1 at 4.) Woodroffe, however, submitted the complete documentation for TRCI-2016-02-009. (Pl.'s Opp. Attach. 1 (hereinafter “Ex.”) at 187-92 (including a letter dated July 22, 2016, stating “[t]his concludes the grievance review process for this matter”).) While there is no dispute that Woodroffe concluded the grievance review process for TRCI-2016-02-009, there is a dispute about whether the process concluded before Woodroffe filed his TAC.[6] Although the letter denying Woodroffe's second-level appeal is dated July 22, 2016, Lytle and Young rely on the “SENT TRCI GRIEVANCE OFFICE” date of August 10, 2016 stamped on the letter. (Woodroffe Ex. 191.)

         c. Exhaustion Analysis

         1) Defendant Pedro

         With regard to Woodroffe's attempts to complete the grievance process against Pedro- TRCI-2015-10-058 and TRCI-2014-06-007-the Court finds that Woodroffe failed to exhaust the administrative process for one of those grievances: TRCI-2015-10-058.

         Woodroffe did not file a second level appeal for TRCI-2015-10-058, and therefore did not exhaust his administrative remedies with respect to that grievance. See OAR 291-109-0170(2) (Appeal of Functional Unit Manager Decision (Final Appeal Process)). In addition, Woodroffe alleges that Pedro failed to protect Woodroffe from an assault in 2014, but there is no evidence in the record that Woodroffe ever grieved that allegation. (Eynon Decl. Attach. 1.)

         However, with respect to TRCI-2014-06-007, the grievance coordinator returned Woodroffe's grievance as noncompliant with the ODOC Grievance Review Process, because he was attempting to grieve a matter he was not allowed to grieve. See OAR 291-109-0140(3)(e) (prohibiting inmate from grieving misconduct report). Although Woodroffe did not appeal or resubmit a compliant grievance, see OAR 291-109-0170(1)(c) (allowing inmate opportunity to resubmit grievance denied on procedural ground), the Court finds that, under these circumstances, Woodroffe should not be faulted for failing to resubmit or appeal a grievance on a matter he was told he could not grieve. See Galligar v. Nooth, 2:12-cv-01891-PK, 2014 WL 4792924, at *8 (D. Or. July 29, 2014) (“However, since the defendants admit that Rule 291- 109-0140(3)(e) is applied to effectively preclude grieving such conduct, they have not carried their burden of proving that [prisoner] failed to exhaust his available administrative remedies.”).

         Accordingly, the district judge should dismiss Woodroffe's claims against Pedro for allegedly circumventing Woodroffe's efforts to mail a letter, and for failure to protect, as Woodroffe did not exhaust either of those claims. However, the Court will consider on the merits Woodroffe's claim that Pedro improperly segregated him from another inmate following an attack in retaliation for Woodroffe exercising his First Amendment rights.

         2) Defendant Iverson

         With regard to Woodroffe's grievances against Iverson-TRCI-2016-02-175, TRCI-2016-03-093, and TRCI2016-07-158-the Court finds that Woodroffe failed to exhaust his grievances in a timely manner.

         The Court turns first to TRCI-2016-07-158. Under ODOC rules, Woodroffe's first-level appeal was not timely. See OAR 291-109-0170(1)(b) (requiring that the “grievance coordinator must receive the appeal within 14 calendar days from the date that grievance response was sent to the inmate from the grievance coordinator” (emphasis added)). The sent date on the “Grievance Response Form” is August 4, 2016, and the received date on Woodroffe's Grievance Appeal Form is August 25, 2016, outside of the required 14-day time period. Nor did Woodroffe seek an exemption for his late-filed appeal. See OAR 291-109-0170(2)(c)(A) (“An inmate may file a grievance appeal past the 14 day timeline if the inmate can demonstrate why the grievance appeal could not be filed within the timelines established by rule, i.e., physical incapacity, etc.”) As a result, Woodroffe failed to exhaust his First Amendment retaliation claim against Iverson for allegedly withholding Woodroffe's mail as set forth in TRCI-2016-07-158.

         The Court turns next to Woodroffe's two grievances against Iverson that Woodroffe did not exhaust until after he filed the TAC in this case-TRCI-2016-02-175 (fully exhausted on December 12, 2016) and TRCI-2016-03-093 (fully exhausted on August 19, 2016). Where an inmate fails to exhaust prior to filing his complaint, this Court is “required by 42 U.S.C. § 1997e(a) to dismiss the complaint without prejudice.” McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002); see also Young v. Cal. Dep't of Corr. and Rehab., No. 12-16491, 2014 WL 23777, at *1 (9th Cir. Jan. 2, 2014) (“The district court properly dismissed Young's retaliation claim against defendant Barron because Young failed properly to exhaust his administrative remedies against this defendant prior to filing suit and failed to demonstrate that administrative remedies were effectively unavailable to him.”); Wendell v. Asher, 162 F.3d 887, 890-91 (5th Cir. 1998) (affirming dismissal of inmate's complaint even though inmate exhausted claims several days after filing action), overruled by implication on other grounds by Jones v. Bock, 549 U.S. 199 (2007). Accordingly, Woodroffe also failed to exhaust his First Amendment retaliation claims against Iverson arising from the alleged mishandling and wrongful confiscation of Woodroffe's property as alleged in TRCI 2016-02-175 and TRCI-2016-03-093, and the district judge should enter judgment on those claims.

         3) Defendants Lytle and Young

         With regard to Woodroffe's attempt to complete the grievance process against Lytle and Young-TRCI-2016-02-009-for the reasons discussed above, the Court finds that Woodroffe failed to exhaust TRCI-2016-02-009 in a timely manner because he filed his TAC before completing the grievance review process. See generally OAR, Chapter 291, Division 109 (using “sent” date as the operative date to begin new time period). Alternatively, as explained in section I.C.2.a. (1) below, even if the Court were to construe the grievance review process as complete on July 22, 2016 (i.e., the date of the letter denying the final appeal), Woodroffe's First Amendment retaliation claim against Lytle and Young fails on the merits. Accordingly, the district judge should grant Lytle's and Young's motions for summary judgment on Woodroffe's First Amendment retaliation claims arising from the alleged threat of segregation as set forth in TRCI-2016-02-009.

         2. Defendants Lytle, Young, ...


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