United States District Court, D. Oregon
FINDINGS AND RECOMMENDATION
D. CLARKE, UNITED STATES DISTRICT JUDGE
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
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.
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).
Exhaustion of Administrative Remedies
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").
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.
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
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.
Failure to Protect Claim
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). 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.
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
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.
Temporary Removal of Cane
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 ...