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Johnson v. Peters

United States District Court, D. Oregon

July 20, 2019

JOHNSON, Plaintiff,
PETERS, et al, Defendants.

          OPINION & ORDER


         United States Magistrate Judge Mustafa Kasubhai has issued his Findings and Recommendation ("F&R"), recommending that the Court grant Defendants' summary judgment motion (doc. 68) and dismiss Plaintiffs case. F&R at 7 (doc. 83). Plaintiff timely filed objections (doc. 85) to the F&R, to which Defendants responded (doc. 87). The matter is now before this court. 28 U.S.C. § 636(b)(1)(B), Fed.R.Civ.P. 72. I have reviewed de novo the portions of the F&R to which the parties have objected. 28 U.S.C. § 636(b)(1)(C); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). For the following reasons, the Court DOES NOT ADOPT Judge Kasubhai's F&R. Accordingly, Defendants' motion for summary judgment (doc. 68) is DENIED.


         Under the Federal Magistrates Act ("Act"), the Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). If a party objects to a magistrate's F&R, "the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id.; Fed. R. Civ. P. 72(b)(3).

         For those portions of a magistrate's F&R to which neither party has objected, the Act does not prescribe any standard of review. See Thomas v. Arn, 474 U.S. 140, 152 (1985) ("There is no indication that Congress, in enacting [the Act], intended to require a district judge to review a magistrate's report to which no objections are filed."); Reyna-Tapia, 328 F.3d at 1121 (holding that the court must review de novo magistrate's findings and recommendations if objection is made, "but not otherwise"). Although absent objections no review is required, the Magistrates Act "does not preclude further review by the district judge[] sua sponte . . . under a de novo or any other standard." Thomas, 474 U.S. at 154. Indeed, the Advisory Committee Notes to Fed.R.Civ.P. 72(b) recommend that "[w]hen no timely objection is filed," the Court review the magistrate's recommendations for "clear error on the face of the record."


         Plaintiff, an inmate at Snake River Correctional Institution ("SRCI"), sued under 42 U.S.C. § 1983 alleging violations of his federal constitutional rights to be free from unreasonable searches and cruel and unusual punishments. Am. Compl. at 4-6 (doc. 11). Plaintiffs complaint follows an incident in May 2017, when Plaintiff faced two strip searches in response to reports of possible contraband. Id.; see also Pl.'s Decl. at 1-5 (doc. 79). Plaintiff alleges that the searches were unreasonable because they were conducted in non-private areas. Am. Compl. at 5 (doc. 11).

         Defendants moved for summary judgment arguing that Plaintiff failed to exhaust his administrative remedies prior to filing a federal claim-a requirement of the Prison Litigation Reform Act ("PLRA"). See 42 U.S.C. § 1997e(a). Defendants contend that they have no record of Plaintiff s grievances at issue here, despite having an extensive record of dozens of other grievances from Plaintiff. F&R at 4.

         In response, Plaintiff relies on an exception to the PLRA's exhaustion rule. That exception allows exhaustion to be satisfied when the prisoner shows that he or she took "reasonable and appropriate steps," but prison officials nonetheless prevented or interfered with the prisoner's attempts to exhaust. Nunez v. Duncan, 591 F.3d 1217, 1224 (9th Cir. 2010). Plaintiff argues that he attempted to submit grievances about the searches, but his grievances were intercepted by corrections officers before they were recorded by the grievance coordinator. F&R at 5. In support of this argument, Plaintiff submits many inmate copies of grievance forms and inmate communication forms that he never received responses to. Id. Plaintiff contends that this evidence satisfactorily supports his argument that he took "reasonable and appropriate steps" to exhaust his administrative remedies and should survive Defendants' motion for summary judgment. Id.

         In his F&R, Judge Kasubhai relied heavily on Defendants' record of Plaintiffs grievances in concluding that the motion for summary judgment should be granted. Judge Kasubhai found "Plaintiffs response to be nothing more than an attempt to manufacture an issue of fact to avoid summary judgment," and that the Inmate Complaint History provided by Defendants showed that Plaintiff was aware of his duty to exhaust his administrative remedies and failed to do so. Id. Judge Kasubhai added that it "simply belies credulity" to infer that employees of the Oregon Department of Corrections ("ODOC") would process Plaintiffs many other grievances but exclude grievances about the searches at issue here. Id. Thus, Judge Kasubhai found that "no reasonable trier of fact would find that ODOC misplaced, failed to process, or failed to respond" to Plaintiffs grievances or communications related to this case. Id. at 6.

         Plaintiffs primary objection to the F&R is that Judge Kasubhai erroneously considered the Inmate Complaint History record submitted by Defendants as undisputed-contrary to the summary judgment standard-and argues that the record lacks evidence of Plaintiffs grievances because ODOC staff purposefully interfered with Plaintiffs ability to exhaust his remedies. Pl.'s Obj. at 7, 12 (doc. 85). Plaintiff also believes that the Inmate Complaint History supports his argument because a reasonable trier of fact could find it more likely that Plaintiff attempted to exhaust his administrative remedies but was prevented. Id. This is because it wouldn't make sense for someone who is familiar with the ODOC grievance system to jump the gun and file in federal court only to have their claim subsequently dismissed. See id. at 10, n.1. Plaintiff further alleges in his objections that ODOC staff have since retaliated against him and tried to inhibit Plaintiff from accessing paperwork and conducting legal research for this suit. Id. at 15-28.


         ODOC has adopted a three-step grievance and appeal process. Or. Admin. R. 29-109-014. Oregon inmates may file grievances against prison employees within thirty days of an incident. Id. 291-109-0140(2)(c). The grievance coordinator will receive the grievance and record it in the inmate grievance log. Id. 291-109-0160(1). If the outcome is unfavorable to the inmate, the process gives him an opportunity to appeal within fourteen days from the date of response. Id. 291-109- 0170(1)(b).

         In response to Plaintiffs complaint, Defendants argue that ODOC has no evidence of Plaintiffs complaints of the searches, and Plaintiffs evidence cannot be verified because Plaintiff dated the documents and not ODOC. Def.'s Resp. at 1 (doc. 87). Defendants explain that this Court need not consider the new evidence of retaliation and interference that Plaintiff raises in his objections. But they also note that this Court ...

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