United States District Court, D. Oregon
OPINION & ORDER
AIKEN, UNITED STATES DISTRICT JUDGE
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.
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.
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."
F&R & PLAINTIFF'S OBJECTIONS
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).
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.
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.
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.
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
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).
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