United States District Court, D. Oregon, Pendleton Division
NATHANIEL F. HARBERT, Plaintiff,
DR. MARK PATTON; DR. NORTON; DR. SHELTON; DR. DIGIULIO; DR. L. GRUENWALD; DR. KELLY; DR. BEAMER; DR. DEWSNUP; R. NUTT; D. LOZIER; MS. ORTIZ; MS. PARKS; MS. HARDY; and MS. PRUITT, Defendant.
OPINION AND ORDER
YIM YOU, UNITED STATES MAGISTRATE JUDGE
plaintiff Nathaniel F. Harbert is a prisoner incarcerated at
Two Rivers Correctional Institution (“TRCI”) in
Umatilla, Oregon. Plaintiff was diagnosed with a small left
inguinal hernia in September 2016, and has filed numerous
grievances, appeals, communication forms, and requests
relating to his medical care. Defendants include
plaintiff's treating doctor at TRCI, Dr. Patton, and
thirteen other individuals, including seven doctors (Dr.
Norton, Dr. Shelton, Dr. DiGiulio, Dr. L. Gruenwald, Dr.
Kelly, Dr. Beamer, and Dr. Dewsnup), a pharmacist (R. Nutt),
and five nurses (D. Lozier, Ms. Ortiz, Ms. Parks, Ms. Hardy,
and Ms. Pruitt).
alleges three claims: (1) an Eighth Amendment deliberate
indifference claim pursuant to 42 U.S.C. § 1983 against
Dr. Patton for denying him hernia repair surgery (Amended
Compl. 4, ECF #4); (2) a negligence or medical malpractice
claim against Dr. Patton and members of the Therapeutic Level
of Care (“TLC”) Committee regarding treatment of
his hernia (id. at 4-6); and (3) an Eighth Amendment
deliberate indifference claim against Ortiz, Parks, Hardy,
Pruitt, and Dr. Gruenwald for failing to provide appropriate
treatment for his symptoms (id. at 6-7).
have moved for summary judgment. ECF #52. For the reasons
discussed below, defendants' motion is granted.
is entitled to summary judgment if the “movant shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
FRCP 56(a). The moving party has the burden of establishing
the absence of a genuine dispute of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
“When judging the evidence at the summary judgment
stage, the district court is not to make credibility
determinations or weigh conflicting evidence, and is required
to draw all inferences in a light most favorable to the
nonmoving party.” Musick v. Burke, 913 F.2d
1390, 1394 (9th Cir. 1990); see also Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986) (“The
evidence of the nonmovant is to be believed, and all
justifiable inferences are to be drawn in his favor.”).
Although “[c]redibility determinations, the weighing of
the evidence, and the drawing of legitimate inferences from
the facts are jury functions, not those of a judge . . .
ruling on a motion for summary judgment, ” the
“mere existence of a scintilla of evidence in support
of the plaintiff's position [is] insufficient . . .
.” Id. at 252, 255. “Where the record
taken as a whole could not lead a rational trier of fact to
find for the non-moving party, there is no genuine issue for
trial.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986) (citation and quotation
pleadings are “to be liberally construed.”
Estelle v. Gamble, 429 U.S. 97, 106 (1976).
“This rule protects the rights of pro se litigants to
self-representation and meaningful access to the courts, . .
. [and] is particularly important in civil rights
cases.” Pouncil v. Tilton, 704 F.3d 568,
574-75 (9th Cir. 2012) (emphasis omitted) (citations and
quotation marks omitted).
Plaintiff's Medical Conditions
was admitted to the custody of the Oregon Department of
Corrections (“ODOC”) on October 6, 2009, is
housed at TRCI, and is incarcerated until at least September
3, 2022. Declaration of Linda Simon (“Simon
Decl.”) ¶ 3, ECF #53. Along with the left inguinal
hernia, plaintiff has been diagnosed with “chronic
gastroesophageal reflux disease (“GERD”),
chronic low back pain, chronic irritable
bowel syndrome (“IBS”),  and asthma.”
Declaration of Mark Patton (“Patton Decl.”)
¶ 7, ECF #54. Plaintiff also has been evaluated for pain
in his left hip and in his knees. Id. ¶¶
argue that plaintiff failed to fully exhaust his
administrative remedies because he did not appeal any of his
grievances to the final level and he is therefore barred from
pursuing his claims under the Prison Litigation Reform Act of
1995 (“PLRA”), 42 U.S.C. § 1997e(a).
Plaintiff claims that he fully appealed at least one of his
grievances. This court agrees that one of plaintiff's
grievances, TRCI-2017-06-144, is exhausted.
PLRA provides that “[n]o 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.” 42 U.S.C. § 1997e(a). Congress enacted
the PLRA “in the wake of a sharp rise in prisoner
litigation in the federal courts.” Woodford v.
Ngo, 548 U.S. 81, 84 (2006). The PLRA strengthened the
exhaustion requirement so that “[e]xhaustion is no
longer left to the discretion of the district court, but is
mandatory.” Id. at 85 (citation omitted).
“Prisoners must now exhaust all ‘available'
remedies . . . even where the relief sought-monetary
damages-cannot be granted by the administrative
process.” Id. The exhaustion requirement
“applies to all inmate suits about prison life”
that do not involve the duration of a prisoner's
sentence. See Nettles v. Grounds, 830 F.3d 922, 932
(2016) (citing Porter v. Nussle, 534 U.S. 516, 532
PLRA's exhaustion requirement mandates proper exhaustion
of administrative remedies. Woodford, 548 U.S. at 93. Proper
exhaustion means that “a prisoner must complete the
administrative review process in accordance with the
applicable procedural rules, including deadlines, as a
precondition to bringing suit in federal court.”
Id. at 88.
Williams v. Paramo, 775 F.3d 1182 (9th Cir. 2015), the
Ninth Circuit articulated the test for determining whether a
prisoner exhausted administrative remedies, and if not, what
justification excuses the failure to exhaust. First, a
defendant must “prove that there was an available
administrative remedy and that the prisoner did not exhaust
that available remedy.” Id. at 1191 (citation
omitted). “Then, the burden shifts to the plaintiff,
who must prove that there is something particular in his case
that made the existing and generally available administrative
remedies effectively unavailable to him by ‘showing
that the local remedies were ineffective, unobtainable,
unduly prolonged, inadequate, or obviously
futile.'” Id. (citation omitted).
“The ultimate burden of proof, however, remains with
the defendants.” Id.; Jones v. Bock,
549 U.S. 199, 216 (2007).
of administrative remedies is an affirmative defense properly
raised by a motion for summary judgment. 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. If material facts are
disputed, summary judgment should be denied, and the district
judge rather than a jury should determine the facts.”
Id. “Exhaustion should be decided, if
feasible, before reaching the merits of a prisoner's
claim.” Id. at 1170.
grievances at TRCI are processed according to the ODOC Inmate
and Grievance Review System, found in the Oregon
Administrative Rules (“OAR”), Chapter 291,
Division 109. Simon Decl. ¶ 6, ECF #53. Inmates are
encouraged to communicate informally with line staff as the
primary way to resolve disputes. OAR 291-109-0100(3)(a). If a
dispute cannot be resolved informally, “it is the
policy of [ODOC] to permit and encourage inmates to seek
resolutions of issues or disputes using the department's
internal inmate grievance review and appeal system.”
processing of inmate grievances consists of three levels of
review. To begin the process, an inmate must submit a signed
grievance form to the functional unit grievance coordinator
within 30 calendar days of the date of the incident giving
rise to the grievance. OAR 291-109-0150(2), (4). Upon
receiving the grievance form, the grievance coordinator must
date stamp and log the form, and provide the inmate with a
receipt. OAR 291-109-0150(3); OAR 291-109-160(1)(a). Unless
further investigation is necessary, the grievance coordinator
must process the grievance within 45 days, and send a
response to the inmate. OAR 291-109-0160(2).
inmate may appeal the denial of the initial grievance using a
grievance appeal form, which must be submitted to the
grievance coordinator together with the original grievance,
attachments, and staff responses, within 14 days from the
date the grievance response was sent to the inmate. OAR
291-109-0170(1)(a), (b). The scope of the original grievance
cannot be expanded, and no additional information may be
submitted, unless the information was unavailable when the
original grievance was filed and the information is directly
related to the issue being grieved. OAR
291-109-0170(1)(a)(A). The functional unit manager must
respond to the appeal within 30 calendar days from the date
the functional unit manager receives it. OAR
the inmate can appeal the decision of the functional unit
manager by submitting a grievance appeal form within 14 days
from the date the first appeal response was sent to the
inmate. OAR 291-109-170(2)(c). This second grievance appeal,
which is decided by the Assistant Director, is not subject to
further administrative review. OAR 291-109-0170(f).
September 22, 2016, plaintiff complained of pain
“radiating from his abdomen to his groin on his left
side.” Patton Decl. ¶ 24, ECF #54. Dr. Patton
diagnosed plaintiff with a left inguinal hernia on September
27, 2016. Id. ¶ 26.
January 9, 2017, TRCI received an Inmate Discrimination
Complaint from plaintiff and assigned it complaint No.
TRCI-2017-01-099. Simon Decl. ¶ 31, ECF #53. Plaintiff
complained that he was being denied hernia surgery and
requested an appointment with an “outside
doctor.” ECF #53, at 43. TRCI returned the complaint to
plaintiff on January 24, 2017, indicating that he had failed
to establish how he was discriminated against based on race,
color, national origin, gender, religion, age, marital
status, or disability. Id. at 42. Plaintiff did not
appeal the decision.
February 6, 2017, TRCI received a grievance from plaintiff
and assigned it grievance No. TRCI-2017-02-027. Id.
at 40. This grievance also was related to the denial of
hernia surgery. Id. TRCI sent plaintiff a response
on March 9, 2017, explaining that Dr. Patton and the TLC
committee did not believe hernia surgery was
necessary and his condition would be monitored. Id.
at 39. Plaintiff did not appeal the decision.
14, 2017, TRCI received a grievance from plaintiff and
assigned it grievance No. TRCI-2017-06-144. ECF #60, at 12.
Plaintiff complained about an appointment he had with Dr.
Patton on June 12, 2017, regarding problems with his bowel
movements and requested a “second opinion on some
medical issues that [he] was suffering from, ” as well
as an apology from Dr. Patton. Id. Chart notes from
plaintiff's June 12, 2017 appointment show he complained
of abdominal pain and said his hernia “should be
fixed.” ECF #54-1, at 13. TRCI received plaintiff's
first-level appeal on July 14, 2017, and assigned it No.
TRCI-2017-06-144A. ECF #60, at 13. In his first-level appeal,
plaintiff complained about Dr. Patton's treatment of his
stomach pain and hernia, and the denial of his request for a
second opinion. Id. TRCI responded to the appeal on
August 22, 2017. Id. at 14. Plaintiff claims he
submitted a second-level grievance appeal form on September
1, 2017, and has offered a copy of it as evidence.
Id. at 16. The form does not have a revised
grievance No. and is not stamped “Received” or
“Accepted.” Id. The “TO:”
section also is not filled out. Id. At a hearing
held on July 10, 2019, plaintiff testified under oath that he
submitted the form on September 1, 2017. ECF #70.
Additionally, the record contains an inmate communication
form dated October 17, 2017, in which plaintiff asked about
the second-level appeal form he claims he submitted. ECF #60,
September 13, 2017, TRCI received a grievance from plaintiff
and assigned it grievance No. TRCI-2017-09-035. ECF #53, at
38. Plaintiff complained about Nurse Ortiz's
recommendation that he drink two-and-a-half gallons of water
to help with his light-headedness, shortness of breath, and
disorientation. Id. TRCI responded to the grievance
on October 9, 2017. Id. at 36. On October 12, 2017,
TRCI received plaintiff's first-level appeal and assigned
it No. TRCI-2017-09-035A. Id. at 33. TRCI responded
to the appeal on November 22, 2017. Id. at 32.
Plaintiff did not file a second appeal.
December 28, 2017, TRCI received a grievance from plaintiff
and assigned it No. TRCI-2017-12-149. Id. at 46.
This grievance was related to pain that plaintiff complained
of following orbital socket surgery. Id. at 31. TRCI
returned the grievance as it contained procedural defects.
Id. 30. Plaintiff did not appeal the decision.
February 21, 2018, TRCI received a grievance from plaintiff
and assigned it No. TRCI-2018-02-157. Id. at 46. In this
grievance, plaintiff claimed that Dr. Patton had made
offensive comments to him. ECF #60, at 20. TRCI responded to
the grievance on March 12, 2018. Id. at 21. On April
2, 2018, TRCI received a first-level appeal from plaintiff
and assigned it No. TRCI-2018-02-157A. Id. at 20.
TRCI responded to the appeal on May 16, 2019. Id. at
19. Plaintiff did not appeal the decision.
Availability of Administrative Remedy
available, a remedy must be available “as a practical
matter; it must be capable of use; at hand.”
Albino, 747 F.3d at 1171 (quoting Brown v.
Valoff,422 F.3d 926, 937 (9th Cir. 2005)) (internal
quotation marks omitted). “The obligation to exhaust
‘available' remedies persists as long as some