United States District Court, D. Oregon
MICHAEL H. SIMON UNITED STATES DISTRICT JUDGE.
David Kelsey, pro se, filed a claim under 42 U.S.C.
§ 1983, alleging that Defendants violated his
constitutional rights under the Eighth Amendment by failing
to provide him with adequate medical care. Specifically,
Plaintiff alleges that he was denied surgery for a hernia in
2015, that the surgery was scheduled in 2016 but was
cancelled, and that he eventually had to have emergency
surgery, with significant complications, on January 19, 2018.
ECF 2. Defendants now move for summary judgment on the
grounds that Plaintiff failed to exhaust his administrative
remedies, as required by the Prison Litigation Reform Act
is entitled to summary judgment 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). The moving party has the burden of
establishing the absence of a genuine dispute of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). The court must view the evidence in the light most
favorable to the non-movant and draw all reasonable
inferences in the non-movant's favor. Clicks
Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257
(9th Cir. 2001). Although “[c]redibility
determinations, the weighing of the evidence, and the drawing
of legitimate inferences from the facts are jury functions,
not those of a judge . . . ruling on a motion for summary
judgment, ” the “mere existence of a scintilla of
evidence in support of the plaintiff's position [is]
insufficient . . . .” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252, 255 (1986). “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 Elec. Indus. Co., Ltd.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(citation and quotation marks omitted).
exhaustion provision of the PLRA states:
No 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). Failure to exhaust under the PLRA
is “an affirmative defense the defendant must plead and
prove.” Jones v. Bock, 549 U.S. 199, 204
(2007). The defendant has the burden to prove that there was
an available administrative remedy, which the prisoner failed
to exhaust. Albino v. Baca, 747 F.3d 1162, 1172 (9th
Cir. 2014). After the defendant has carried that burden, the
prisoner must produce evidence demonstrating that “the
local remedies were ineffective, unobtainable, unduly
prolonged, inadequate, or obviously futile.”
Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir.
2015). The ultimate burden of proof, however, rests with the
filed suit concerning his medical treatment at Snake River
Correctional Institute (“SRCI”) while still
incarcerated, and his claims are therefore subject to the
PLRA. See Jackson, 870 F.3d at 935. Plaintiff
asserts that on July 20, 2015 he first reported to Dr. Gulick
at SRCI that he was in pain due to a hernia. ECF 2. Plaintiff
asserts that he was refused surgery at the time. Id.
Plaintiff was again seen in January 2016 for the pain, but
was only given an antacid by medical staff. Id.
Plaintiff asserts that at some point surgery was approved for
the repair of his ventral hernia, but then surgery was
cancelled on December 6, 2017. Id. On January 19,
2018, Plaintiff had to have emergency surgery for the hernia.
Id. Plaintiff asserts that because of the delay, he
was forced to have a more complicated surgery, has suffered
infections, and has a wound that will not heal. Id.
Plaintiff brings this claim for medical negligence and for
pain and suffering. Id.
Oregon Department of Corrections (“ODOC”) has a
grievance review system with a two-level appeal process set
forth in its administrative rules. See Oregon
Administrative Rules Chapter 291, Division 109; Faunce v.
Paulson, 2018 WL 2770641, at *2 (D. Or. June 8, 2018)
(discussing ODOCs grievance process). James Taylor, the
Grievance Coordinator at the SRCI, stated in support of
Defendants' motion for summary judgment that Plaintiff
did not file any grievances concerning his medical care in
2015, 2016, or 2017. ECF 15 ¶ 12. On February 26, 2018,
Plaintiff submitted a grievance concerning many of the issues
raised in his complaint. Id. ¶ 13. The
grievance was returned to Plaintiff because it was
procedurally defective. Id. ¶
14. Specifically, the grievance addressed multiple matters
and it raised claims not within the jurisdiction of the ODOC.
Id. Plaintiff was given 14 days to resubmit his
grievance and was offered assistance from an inmate legal
assistant, but Plaintiff did not resubmit the grievance.
Id. ¶¶ 15-16. Plaintiff also filed a tort
claim notice concerning the same issues in his grievance
during the course of the litigation in the pending case,
which Taylor states would have resulted in the rejection of
additional grievances or appeals under the ODOC's
administrative rules. Id. ¶ 17. Taylor
concludes that Plaintiff failed to pursue his available
administrative remedies for this claim. Id. ¶
acknowledges in his Complaint that he has not filed a
grievance concerning the facts relating to this action. ECF
2. But Plaintiff asserts in his Response to Defendants'
Motion for Summary Judgment that after Taylor returned
Plaintiff's grievance because it addressed multiple
matters, Plaintiff spoke to “James Taylor's Clerk
Krueger.” ECF 23. Plaintiff alleges that clerk Krueger
told him that he could not file a grievance on an Eighth
Amendment issue, and that Krueger would get back to Plaintiff
on how to proceed, but did not do so. ECF 23.
assertion is exactly the type that the Ninth Circuit has held
may demonstrate that local remedies were ineffective,
unobtainable, unduly prolonged, inadequate, or obviously
futile. Williams, 775 F.3d at 1191. In
Williams, the panel found that the district court
had erred in granting judgment to defendants on the basis of
PLRA exhaustion. The panel noted that the plaintiff in
Williams had met her burden of production in showing
that administrative remedies were not available to her:
“To be available, a remedy must be available ‘as
a practical matter'; it must be ‘capable of use; at
hand.'” Albino v. Baca, 747 F.3d 1162,
1171 (9th Cir. 2014) (quoting Brown v. Croak, 312
F.3d 109, 112 (3d Cir.2002)). Williams alleged in her
complaint that she first tried informing Officer Paramo about
the facts alleged in her complaint, but that he did not help
her and told her, “So what! That is not my problem!
That is your problem!” She then attempted to file a
grievance and an appeal on January 5, 2012 with Officer Cobb,
who rejected the grievance and refused to file the appeal.
Because an administrative remedy is not available if
“prison officials inform the prisoner that he cannot
file a grievance, ” Williams's statements that
she was thwarted from filing a grievance and appeal meet her
burden of production. Brown v. Valoff, 422 F.3d
926, 937 (9th Cir.2005) (quoting Croak, 312 F.3d at
113 (internal quotation marks omitted)).
Id. at 1191-92 (emphasis added). Here, too,
Plaintiff alleges that prison officials informed Plaintiff
that he could not file a grievance, and therefore Plaintiff
has met his burden of production in showing that