United States District Court, D. Oregon, Pendleton Division
OPINION AND ORDER
E. JONES UNITED STATES DISTRICT JUDGE
Kenneth Moore, acting pro se, brought this civil rights
action under 42 U.S.C. § 1983 against officials and
medical personnel of the Oregon Department of Corrections
("ODOC"). Moore alleges the ODOC medical staff used
inappropriate methods and improperly delayed medical
treatment of a cancerous mass on his sternum in violation of
his rights under the First, Eighth, and Fourteenth
Amendments. The matter is before me on defendants' motion
for summary judgment. [# 62] For the following
reasons, the defendants' motion is granted.
following factual background is undisputed. Moore has been a
prisoner in the custody of ODOC since April 2015, residing at
Snake River Correctional Institution ("SRCI").
While incarcerated, Moore experienced a mass on his sternum
which ODOC determined to be a recurrence of cancer. ODOC
medical personnel first identified the mass in April 2017,
assessed it with x-ray imaging in May 2017, took blood and
EKG measurements in June 2017, further assessed it with
ultrasound in July 2017, performed a CT scan and took a
biopsy in August 2017 and began chemotherapy in September
submitted a grievance regarding his perceived inadequate and
delayed medical care. ODOC denied that grievance and
instructed Moore that he had until September 13, 2017 to
appeal. Moore submitted an incomplete appeal without
necessary attachments. ODOC promptly notified Moore of the
error, but Moore failed to return the requisite attachments
within the required time for appeal. The ODOC therefore
rejected Moore's appeal as untimely.
district court should grant summary judgment if 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(c).
If the moving party shows that there are no genuine issues of
material fact, the non-moving party must go beyond the
pleadings and designate facts showing an issue for trial.
Celotex Corp. v. Catrett, 477 U.S.317, 322-23
(1986). A scintilla of evidence, or evidence that is merely
colorable or not significantly probative, does not present a
genuine issue of material fact. United Steelworkers of
America v. Phelps Dodge, 865 F.2d 1539, 1542 (9th Cir.
1989). Reasonable doubts as to the existence of a material
factual issue are resolved against the moving party and
inferences drawn from facts are viewed in the light most
favorable to the non-moving party. T. W. Elec. Serv. v.
Pac. Elec. Contractors, 809 F.2d 626, 630-31 (9th Cir.
failure to exhaust administrative remedies is an affirmative
defense that requires the defendant to prove the absence of
exhaustion. Brown v. Valoff, 422 F.3d 926, 936-37
(9th Cir. 2005). In deciding a motion to dismiss for failure
to exhaust nonjudicial remedies, the court may look beyond
the pleadings and decide factual disputes on the issue of
exhaustion in the same manner that a court would decide
factual disputes relevant to jurisdiction or venue.
Albino v. Baca, 747 F.3d 1162, 1170-71 (9th Cir.
Prison Litigation Reform Act ("PLRA") requires
prisoners to exhaust available administrative remedies before
commencing an action under 42 U.S.C.§1983.
PLRA says that,
[n]o action shall be brought with respect to prison
conditions under Section 1983 of this title, or any other
Federal law, by a prisoner confined in any jail, prison, or
other correctional facility until such administrative
remedies as are available are exhausted.
42 U.S.C. § 1997e(a). Exhaustion of administrative
remedies is a mandatory prerequisite and not a discretionary
matter for the court. McKinney v. Carey, 311 F.3d
1198, 1199 (9th Cir. 2002). Claims for which an inmate has
failed to exhaust administrative remedies cannot be brought
in court. Jones v. Bock, 549 U.S. 199, 211 (2007).
has a grievance system to address inmate complaints. Or.
Admin. R. 291 -109-0100 et seq. An inmate must file
a grievance within 30 days of the alleged event giving rise
to the grievance. Or. Admin. R. 291-109-0150(2). After
receiving a decision on his grievance, an inmate may appeal
to the superintendent of the appropriate correctional
institution within 14 days. Or. Admin. R. 291-109-0170. After
receiving a decision on the initial appeal, an inmate has 14
days to appeal to an Assistant Director of ODOC, who issues
the final administrative determination. Or. Admin. R.
291-109-0170(2). Inmates are informed of the grievance
process during Inmate Orientation and receive an Orientation
Information Packet upon arrival at an ODOC facility. ...