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Hernandez v. Cloutier

United States District Court, D. Oregon

June 24, 2019

ARACELY HERNANDEZ, Plaintiff,
v.
D. CLOUTIER, FCS; CAPT. MCCORKHILL; CAPT. BRUINS; CPL. KAISER; CPL. JORDAN; COFFEE CREEK CORRECTIONAL FACILITY, Defendants.

          OPINION AND ORDER

          MUSTAFA T. KASUBHAI UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, 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.

         DISCUSSION

         Plaintiff 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 sexual abuse).

         Defendants 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).

         A. Federal Law Claims

         Under 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).

         Although 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. 2010).

         The 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.”).

         If a 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. 291-109-0170(2)(f).

         In this 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 1.

         On 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.

         Based 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.

         In 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 ...


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