United States District Court, D. Oregon
OPINION AND ORDER
MUSTAFA T. KASUBHAI UNITED STATES MAGISTRATE JUDGE.
an inmate at the Coffee Creek Correctional Facility (CCCF),
filed suit under 42 U.S.C. § 1983. Plaintiff alleges
that she was sexually assaulted by a prison employee and that
prison officials failed to investigate her complaints and
retaliated against her. Defendants now move for summary
judgment on grounds that plaintiff failed to exhaust her
administrative remedies under the Prison Litigation Reform
Act (PLRA) and failed to file a timely tort claim notice
under the Oregon Tort Claims Act (OTCA). For the reasons
explained below, defendants' motion is granted.
alleges that on or around March 16, 2016, she was sexually
assaulted by defendant Cloutier, a food services coordinator,
in a walk-in cooler at CCCF. Compl. at 4-6 (ECF No. 2).
Plaintiff alleges that her complaints about the assault were
ignored, and that Cloutier and several other defendants
retaliated against her and threatened her with discipline if
she continued to complain. Id.; see also
Pl.'s Response (ECF No. 26). Plaintiff alleges that
defendants' conduct violated her rights under the federal
constitution and state law. See Schwenk v. Hartford,
204 F.3d 1187, 1197 (9th Cir. 2000) (reiterating that
prisoners have an Eighth Amendment right to be free from
move for summary judgment on grounds that plaintiff failed to
exhaust her administrative remedies through the available
grievance process and failed to submit a timely tort claim
notice. To prevail on their motion for summary judgment,
defendants must show there is no genuine dispute as to any
material fact and defendants 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).
Federal Law Claims
the PLRA, an inmate must exhaust all available administrative
remedies before filing a federal action to redress prison
conditions or incidents. See 42 U.S.C §
1997e(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, 93-95 (2006).
the exhaustion requirement is mandatory, it is not absolute.
If the defendant shows that the prisoner 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 Ross v. Blake, 136 S.Ct. 1850, 1859 (2016)
(“[A]n inmate is required to exhaust those, but only
those, grievance procedures that are ‘capable of
use' to obtain ‘some relief for the action
complained of.'”) (citation omitted). This burden
is met when a prisoner shows that he or she took
“reasonable and appropriate steps” to pursue
administrative remedies, but prison officials nonetheless
prevented or interfered with the prisoner's efforts.
Nunez v. Duncan, 591 F.3d 1217, 1224 (9th Cir.
Oregon Department of Corrections (ODOC) employs a three-step
grievance and appeal process. Or. Admin. R. 291-109-0140.
Inmates may file grievances for a variety of issues,
including “unprofessional behavior” and sexual
contact between an inmate and an ODOC employee. Id.
291-109-0140(2)(c), (g). Generally, the inmate must file a
grievance within thirty days of the alleged condition or
incident. Id. 291-109-0150(2). However, ODOC imposes
no deadline for grievances alleging sexual assault.
Id. 291-109-0175(4) (“There is no time limit
on when an inmate may submit a grievance regarding an
allegation of sexual abuse.”).
grievance is accepted and a response is provided, the inmate
may appeal the response within fourteen calendar days from
the date the response was sent to the inmate. Or. Admin. R.
291-109-0170(1)(b). If the appeal is denied, the inmate may
file a second appeal within fourteen 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.
case, plaintiff filed one grievance regarding the alleged
assault and threats of disciplinary sanctions: Grievance
CCCF-2017-10-005, dated September 27, 2017. Arrington Decl.
¶ 19 & Ex. 5 at 1-3 (ECF No. 24). Plaintiff
described the alleged assault by Cloutier and explained she
did not file a grievance earlier because she had called the
Inspector General and had been waiting for a response for
“many months.” Id. Ex. 5 at 1-3.
Plaintiff also alleged, “I've been threatened that
if I speak of this matter I would get a [disciplinary report]
and sent to the hole.” Id. Ex. 5 at 2.
Regarding the action she wanted taken, plaintiff stated,
“I plan on prosecuting this matter to the fullest and
intend to recover from my loss.” Id. Ex. 5 at
October 4, 2017, plaintiff's grievance “was
accepted and sent for a response.” Arrington Decl. Ex.
5 at 4. On October 9, 2017, Capt. Rasmussen responded to the
grievance and stated that plaintiff's allegations against
Cloutier had been referred to the Oregon State Police and
Cloutier no longer worked at CCCF. Id. ¶ 20
& Ex. 5 at 5. Plaintiff did not file an appeal to this
response. Id. ¶¶ 21, 23.
on this evidence, defendants have shown that plaintiff did
not exhaust the available ODOC grievance process. Plaintiff
does not dispute the fact that she did not appeal Capt.
Rasmussen's response to her grievance. Accordingly, the
burden shifts to plaintiff to show that something in her
particular case “made the existing and generally
available administrative remedies effectively
unavailable” to her. Albino, 747 F.3d at 1172.
response to defendants' motion, plaintiff asserts several
arguments. First, plaintiff alleges that she did not file
timely grievances against the defendants who ignored her
complaints and warned her to remain silent because she had
been threatened with disciplinary sanctions if she mentioned
Cloutier's abuse. Pl.'s Response at 8-9, 12-13.
However, plaintiff raised the issue of disciplinary threats
in her grievance, and plaintiff's grievance was accepted
and forwarded for a response. Defendants do not argue ...