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Alexander v. Peters

United States District Court, D. Oregon

April 12, 2019

ROBERT ALEXANDER, Plaintiff,
v.
COLLETTE PETERS, et al., Defendants.

          FINDINGS AND RECOMMENDATION

          MARK D. CLARKE, UNITED STATES DISTRICT JUDGE

         Plaintiff, a prisoner appearing pro se, filed suit under 42 U.S.C. § 1983 alleging deliberate indifference to his serious medical needs, the failure to protect, and retaliation in violation of his Eighth and First Amendment rights. Defendants now move for summary judgment on grounds that plaintiff failed to his exhaust administrative remedies and the evidence of record does not support his claims. For the reasons explained below, defendants' motion should be granted.

         DISCUSSION

         Since 1994, plaintiff has been in the custody of the Oregon Department of Corrections (ODOC), and beginning in 2011, plaintiff was housed at the Two Rivers Correctional Institution (TRCI), Jones Decl. at 2 (ECF No, 139). Plaintiffs claims arise from the denial of back surgery after plaintiff suffered a fall and reinjured his back in November 2013; the temporary removal of his cane in January 2014; the denial of pain medication in July 2014; delayed medical treatment for an infection in November 2014; an assault by a fellow inmate in August 2014; the denial of grievances submitted in 2014; and an allegedly retaliatory housing transfer in March 2015. Plaintiff alleges that defendants violated his constitutional rights by denying him proper medical care for his serious medical needs, failing to protect him from assault by another inmate with a history of violence, preventing him from seeking redress through the grievance process, and retaliating against him for filing complaints. See generally Am. Compl. (ECF No. 116).[1]

         Defendants move for summary judgment on grounds that plaintiff failed to exhaust his available administrative remedies and the evidence of record does not support his claims. To prevail on their motion, defendants must show there is no genuine dispute as to any material fact and they are entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) ("If undisputed evidence viewed in the light most favorable to the prisoner shows a failure to exhaust, a defendant is entitled to summary judgment under Rule 56."). The court must construe the evidence and draw all reasonable inferences in the light most favorable to plaintiff. Torres v. City of Madera, 648 F.3d 1119, 1123 (9th Cir. 2011).

         A. Exhaustion of Administrative Remedies

         Under the Prison Litigation Reform Act (PLRA), inmates must exhaust all available administrative remedies before filing a federal action to redress prison conditions or incidents. See 42 U.S.C § l997e(a) ("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."). The exhaustion requirement is mandatory and requires compliance with both procedural and substantive elements of the prison administrative process. Woodford v. Ngo, 548 U.S. 81, 85, 90 (2006); McKinney v. Carey, 311 F.3d 1198, 1199-1200 (9th Cir. 2002) (per curiam). If the defendant shows that the inmate did not exhaust an available administrative remedy, "the burden shifts to the prisoner to come forward with evidence showing that there is something in his particular case that made the existing and generally available administrative remedies effectively unavailable to him." Albino, 747 F.3d at 1172; see also Sapp v. Kimbrell, 623 F.3d 813, 822 (9th Cir. 2010) (the PLRA does not require exhaustion when administrative remedies are "effectively unavailable"); Brown v. Valoff 422 F.3d 926, 937 (9th Cir. 2005) (an administrative remedy must be available "as a practical matter").

         ODOC employs a three-step grievance and appeal process. Or. Admin. R. 291-109-0140, et seq. Generally, the inmate must file a grievance within 30 days of the alleged condition or incident. Id. 291-109-0150(2). A grievance that is returned to the inmate on procedural grounds may not be appealed. Instead, the inmate may resubmit the grievance within 14 days if the procedural errors can be corrected. Id. § 291-109-0160(5). If a grievance is accepted, the inmate may appeal a response to the grievance within 14 calendar days. Id. 291-109-0170(1)(b). If the first appeal is denied, the inmate may file a second appeal within 14 days of the date the denial was sent to the inmate. Id. 291-109-0170(2)(c). A decision following a second appeal is final and not subject to further review. Id. 291-109-0170(2)(f).

         An inmate cannot file a grievance regarding "[c]laims or issues for which the inmate has filed a Notice of Tort[.]" Or. Admin. R. 291-109-0140(3)(g). If an inmate files a tort claim notice during the grievance process, the process is terminated according to the relevant administrative rules. See Id. 291-109-0160(4) ("If at any time the grievance coordinator determines the inmate has pursued his/her issue through state or federal courts, or has filed a notice of tort claim, the grievance process will cease and the grievance will be returned to the inmate.").

         Defendants maintain that plaintiff failed to exhaust administrative remedies for his claims alleging the failure to protect, the temporary removal of his cane, and several failures to process his grievances.

         1. Failure to Protect Claim

         In Grievance TRCI-2014-08-169, plaintiff grieved the lack of response to his complaint of an alleged sexual assault committed by inmate Charles Reece. Eynon Decl. Ex. 2 at 7 (ECF No. 141). On September 23, 2014, plaintiff received a response to his grievance, and plaintiff appealed this response. Id. Ex. 2 at 3-6. On December 15, 2014, plaintiff received a response to his appeal and then filed a second appeal, which was accepted on January 9, 2015. Id. Ex, 2 at 1- 2. Around the same day, plaintiff complained that he had not been notified whether his second appeal was accepted. Pl.'s Ex. 4 at 1 (ECF No. 209-1).[2] On January 21, 2015, the grievance coordinator responded, "The appeal was accepted and a response is due by Friday 1/23/15. The grievance office is currently running about week behind. If you are attempting to file a tort you can move ahead with that process at any time." Id., Plaintiff submitted two inquiries regarding the late response to his second appeal before he apparently filed a tort claim notice. Pl.'s Ex. 4 at 2- 3. On February 18, 2018, plaintiff was informed that his grievance was closed because of his tort claim notice. Pl.'s Ex. 4 at 4.

         Defendants argue that plaintiff failed to exhaust his administrative remedies by filing a notice of tort claim before receiving the response to his second appeal. Normally, I would agree with defendants, particularly when plaintiff was informed that the second appeal response was forthcoming. See Vega v. Bell, 2015 WL 413796, at *5 (D. Or. Jan. 29, 2015) ("Because Mr. Vega did not comply with a critical procedural rule - completing the grievance procedure before filing a tort claim notice - he failed to properly exhaust his administrative remedies"); Lovelady v. Beamer, 2014 WL 7228870, at *3 (D. Or. Dec. 17, 2014) ("Prematurely ending the administrative process does not satisfy the PLRA exhaustion requirement").

         However, in this case, plaintiff was informed that he could begin the process "to file a tort" before he received the response to his second appeal. Given this response, plaintiff would have reasonably believed he had pursued the administrative review process as far as he could for this claim; particularly when the responses to his grievances had been delayed and he was approaching the 180-day tort claim notice deadline. Thus, I find that the delayed responses to his grievances and the instruction to begin the tort process interfered with plaintiffs efforts to complete the grievance process for this claim.

         2. Temporary Removal of Cane

         Plaintiff alleges that on January 8, 2014, defendant Gruenwald took plaintiffs cane from him because she thought plaintiff did not need it; the cane was returned a week later. Pl.'s Am. Compl. ¶¶ 23, 39. Plaintiff concedes that he did not grieve this issue, and he presents no evidence that the grievance process was effectively unavailable to ...


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