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Harbert v. Patton

United States District Court, D. Oregon, Pendleton Division

August 30, 2019




         Pro se 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[1] 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).

         Plaintiff 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).

         Defendants have moved for summary judgment. ECF #52. For the reasons discussed below, defendants' motion is granted.


         A party 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 marks omitted).

         Pro se 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).


         I. Plaintiff's Medical Conditions

         Plaintiff 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”), [2]chronic low back pain, chronic irritable bowel syndrome (“IBS”), [3] 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. ¶¶ 33-35.

         II. Exhaustion

         Defendants 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.

         A. Legal Standard

         The 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 (2002)).

         The 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.

         In 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).

         Exhaustion 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.

         B. ODOC Grievance Process

         Inmate 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.” OAR 291-109-0100(3)(b).

         The 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).

         The 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 291-109-0170(1)(c).

         Finally, 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).

         C. Plaintiff's Grievances

         On 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.

         On 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.

         On 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[4] did not believe hernia surgery was necessary and his condition would be monitored. Id. at 39. Plaintiff did not appeal the decision.

         On June 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.[5] 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, at 15.

         On 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.

         On 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.

         On February 21, 2018, TRCI received a grievance from plaintiff and assigned it No. TRCI-2018-02-157.[6] 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.

         D. Analysis

         1. Availability of Administrative Remedy

         To be 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 ...

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