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Lee v. Taylor

United States District Court, D. Oregon, Portland Division

April 19, 2019

KENNETH LEE, Plaintiff,
v.
JERRI TAYLOR; LANCE ALBERT; RON MILES; DAVE LILIENTHAL; DWIGHT HAWKINS and NINA SOBOTTA, Defendants.

          FINDINGS AND RECOMMENDATION

          JOHN V. ACOSTA UNITED STATES MAGISTRATE JUDGE

         Introduction

         Plaintiff Kenneth Lee ("Lee"), an inmate currently housed at the Eastern Oregon Correctional Institution ("EOCI") and appearing pro se, filed this First Amendment and Section 1983 lawsuit alleging various EOCI officers retaliated against him for exercising his right to seek redress for his complaints. Lee contends such retaliation violated his constitutional right to free speech afforded by the First Amendment. Currently before the court is the motion for summary judgment (ECF No. 30) filed by Jerri Taylor, Superintendent of EOCI at that time ("Taylor"); Lance Albert, Correctional Captain ("Captain Albert"); Dwight Hawkins, Inmate Work Program Coordinator ("Hawkins"); David Lilienthal, Correctional Captain ("Captain Lilienthal"); Ron Miles, Correctional Counselor ("Miles"); and Nina Sobotta, Grievance Coordinator ("Sobotta") (collectively "Defendants") based on failure to exhaust administrative remedies. The court finds Lee adequately exhausted his administrative remedies. Accordingly, Defendants' motion for summary judgment should be denied.

         Background

         In his complaint filed May 25, 2017, Lee alleges Defendants retaliated against him for raising complaints: (1) regarding another inmate; (2) being denied incentive housing; and (3) attempting to obtain his job back. (Compl, ECF No. 2, at 3D.)[1] The alleged retaliatory acts include giving preferential treatment to another inmate regarding an employment dispute, removing Lee from his incentive housing to a less ideal unit, and failing to restore Lee his job, or an equivalent one.

         Lee worked as a welder in EOCI's Physical Plant from February through July 17, 2015. (Compl, at 3.) In February 2015, Lee complained to EOCI staff regarding another inmate who worked in the Physical Plant, "Inmate Gonzales." (Compl, at 3A.) In July of 2015, Inmate Gonzales accused Lee of "talking about access to escape tools," and Lee was placed in segregation while EOCI conducted an investigation. (Compl, at 3C.) Lee denies making such statement. (Compl, at 3C.) As a result of being placed in segregation, Lee lost his work assignment as a welder, his gate pass[2], and his placement in honors housing ("Incentive Housing"). (Compl. at 3C.)

         From July 2015 until November 2015, Lee made many verbal complaints to Captain Albert, Miles, Captain Lilienthal, Hawkins, and Sobotta about his removal from incentive housing and lack of work assignment. (Compl., at 3D) (see also Sobotta Deck, ECF No. 31, Attach. 7 at 18-26.) On July 29, 2015, Lee was placed once again in Incentive Housing. (Compl., at 3D.)

         However, still unsatisfied with his lack of a work assignment, Lee filed his first grievance on September 16, 2015 (the "First Grievance"). (Sobotta Deck ¶ 22 at 5.)[3] EOCI denied the First Grievance the same day because it was not filed within the thirty-day window for submitting grievances. (Sobotta Deck ¶ 23.) Lee then submitted a new grievance (Grievance No. EOCI-2015-09-070), that was also received on September 16, 2015 (the "Grievance"). (Sobotta ¶ 24.) The Grievance provides a timeline of events beginning with Lee's conflicts with Inmate Gonzales and Lee's placement into segregation. (Sobotta Decl., Attach. 7 at 19-23.) The Grievance also outlines his various attempts to obtain a work assignment and ultimately, requested another work placement. (Sobotta Deck, Attach. 7 at 26-27.)

         EOCI accepted the second Grievance, and on November 18, 2015, Captain Albert responded to the Grievance. (Sobotta Decl., Attach. 7 at 17.) Captain Albert's grievance response (the "Response") stated he was conducting an investigation on Lee and "another Inmate who had threatened the safety of the institution and potentially the public by physically threatening harm to other inmates who would not follow along with [Lee's] program and ideas as the head welder." (Sobotta Decl., Attach. 7 at 17.) The Response also noted because of Lee's "past good conduct," Captain Albert decided to not issue Lee a misconduct report and assisted Lee in getting placed back into Incentive Housing. (Sobotta Decl., Attach. 7 at 17.) However, given the nature of the physical threats, Captain Albert recommended to the "Gate Pass Committee" ("Committee") they "should wait a while longer before restoring [Lee's] gate pass."[4] (Sobotta Decl, Attach. 7 at 17.)

         Dissatisfied with the Response, Lee appealed the Response on November 22, 2015 (the "Appeal"). (Sobotta Decl, ¶ 26.) In the Appeal, Lee denied the allegations he was involved in "threatening harm." (Sobotta Decl., Attach. 7 at 2.) Lee also alleged that Captain Albert told Lee he "could work anywhere else such as the garment factory or call center." (Sobotta Decl., Attach. 7 at 5.) Further, Lee noted there was a Committee meeting in which Captain Albert was present, and where "the agreed outcome was that [Lee] would be allowed to receive a gate pass."[5] (Sobotta Decl, Attach. 7 at 5.) Given that outcome, Lee questioned why Captain Albert recommended the Committee to wait longer before restoring his gate pass. (Sobotta Decl., Attach. 7 at 6.) Finally, Lee took issue with the difference in treatment between his inability to get reassigned to a new job, and Inmate Gonzales's ability to be assigned to "4 work assignments." (Sobotta Decl, Attach 7 at 6.)

         On December 10, 2015, Taylor responded to the Appeal (the "Appeal Response"). (Sobotta Decl., Attach. 7 at 1.) Taylor informed Lee that Captain Lilienthal had been assigned to investigate Lee's Appeal. (Sobotta Decl. Attach., 7 at 1.) Taylor reiterated that Captain Albert authorized Lee's release from segregation and determined "the violation did not rise to the level for submission of a major misconduct report." (Sobotta Decl., Attach. 7 at 1.) Regarding Lee's "gate pass," Taylor stated: "Your situation was reviewed with the Gate Pass Committee. You have been given a work assignment that did not require a gate pass ... the actions taken by staff members are consistent with the Inmate Work Program / Gate Pass procedure." (Sobotta Decl., Attach. 7 at 1.) Finally, Taylor noted Captain Lilienthal advised Lee of his findings. (Sobotta Decl, Attach. 7 at 1.)

         Lee did not appeal the Appeal Response because, he alleges, when he met with Captain Lilienthal, they agreed Captain Lilienthal "would assist [Lee] in obtaining another work assignment of equal or better awards that [Lee] would choose." (Lee Decl., ECF No. 45, at 1.) Lee agreed to "wait approximately a month for [Captain Lilienthal] to get on the gate pass comity [sic] before expecting him to fulfill his promises." (Lee Decl. at 2.) Lee contends during their meeting he "agreed that was 'about as fair a resolution as [he] was likely to get' and that [he] would 'trust [Captain Lilienthal]."' (PI. Resp. to Mot. [Summ. J.], ECF No. 44 ("PI. Resp."), at 2.) Lee brought this suit after Captain Lilienthal failed to keep his promise.

         Legal Standard

         Granting summary judgment is appropriate when 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) (2018). The moving party bears the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. Catrett, 477 U.S. 317, 323 (1986). If the moving party demonstrates the absence of a genuine issue of material fact, the non-moving party must identify facts beyond the allegations in the complaint, that show a genuine issue for trial. Id. at 324. The court must view the evidence in the light most favorable to the non-moving party. Gibson v. Cty. of Washoe, 290 F.3d 1175, 1180 (9th Cir. 2002).

         However, a mere "scintilla" of evidence will not overcome summary judgment. Anderson v. Liberty Lobby, Inc., Ml U.S. 242, 251 (1986). To defeat summary judgment, the non-moving party cannot simply assert that a fact is not true or is genuinely disputed, rather the assertion must be supported with admissible evidence. Fed.R.Civ.P. 56(c) (2018). If a rational trier of fact, considering the record as a whole, could not find for the non-moving party, there is no genuine issue for trial and summary judgment should be granted. Liberty Lobby, Inc., 477 U.S. at 248.

         Discussion

         Defendants move for summary judgment on Lee's claim, alleging he failed to exhaust his administrative remedies as set forth in Chapter 291 of the Oregon Administrative Rules ("OAR"). Lee contends he was satisfied with Captain Lilienthal's promised relief and therefore was not obligated to appeal the Appeal Response.

         I. Failure to Exhaust Administrative Remedies

         Under the Prison Litigation Reform Act (the "PLRA"), inmates are required to exhaust all available administrative remedies before filing a suit under Section 1983 to challenge prison conditions. Woodford v. Ngo,548 U.S. 81, 85 (2006). To properly exhaust administrative remedies, prisoners "must complete the administrative review process in accordance with the applicable procedural rules." Id. at 88. Procedural rules are not defined by the PLRA, but rather by a prison's specific grievance process requirements. Jones v. Bock, 549 U.S. 199, 218 (2007). The purpose of mandating exhaustion is to allow ...


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