United States District Court, D. Oregon
TIMOTHY V. LEPESH, Plaintiff,
COLETTE PETERS; et al., Defendants.
OPINION AND ORDER
MICHAEL W. MOSMAN, Chief United States District Judge.
Timothy V. Lepesh is proceeding pro se in this 42
U.S.C. civil rights action. In his Amended Complaint , he
alleges that Defendants Oregon Department of Corrections
(ODOC), Marisel Ayala, Melisa Davidson, K. Davis, Brandon
Kelly, Colette Peters, Gerald Postier, Jeff Premo, R.
Ridderbusch, and Captain T. Wright (collectively referred to
as Defendants) violated his rights under the Oregon and
federal constitutions because the food he served and consumed
was marked "not fit for human consumption." He
alleges that when he complained about this to Defendants
Ayala and Ridderbusch they retaliated against him by firing
him from his assigned jobs and sending him to segregated
units. Defendants seek summary judgment on Mr. Lepesh's
claims on the following grounds: (1) he failed to exhaust his
administrative remedies before filing this action; (2) the
applicable two-year statute of limitations bars his claims
that accrued in 2013; and (3) the Eleventh Amendment bars his
claims against the ODOC. As explained below, I GRANT
Defendants' Motion .
Lepesh alleges that Defendants knowingly served food that was
not for human consumption to him and other inmates and that
defendants Ayala and Ridderbusch ordered him to remove
"not for human consumption" stickers from food
boxes. [11 at 2]. He specifically states that from September
18, 2003, to October 3, 2013, and from June 24, 2018, to
December 20, 2016, he worked in the Oregon State Prison's
(OSP) "back kitchen" and "dry storage
rooms." Id. at 3. Mr. Lepesh was assigned to
unload food deliveries. Id. Many times, when
receiving deliveries, he saw "clear and visible
labels" saying "not for human consumption" on
boxes containing fish and chicken meat products. Id.
Mr. Lepesh claims that, after he "filed several verbal
complaints and concerns" to defendants Ayala and
Ridderbusch, they retaliated against him by firing him from
his job and writing him up on a misconduct report based on
false reasons. Id. at 5-6. Mr. Lepesh states that
the false misconduct report resulted OSP placing him in
segregated units. Id. at 6.
has administrative rules regarding filing and processing
grievances. [35 at ¶ 5]. Inmates learn about these rules
during their inmate orientation and in their prisoner
handbooks. Id. at ¶¶ 7. ODOC's rules
generally require that inmates submit grievances within
thirty calendar days of the event giving rise to the
grievance. Id. at ¶ 9. When a grievance is
accepted, staff provide the inmate an initial response within
forty-five days, unless the grievance requires further
investigation. Id. at ¶ 10- If the inmate is
dissatisfied with the initial response to a grievance, he or
she may appeal the denial in a two-level system of review.
Id. at ¶ 12. The inmate must file the first
level of appeal within fourteen calendar days after the
grievance coordinator sent the initial response to the
inmate. Id. at ¶ 15. If the inmate is not
satisfied with the functional unit manager's response,
the inmate may appeal by filing a second-level appeal within
fourteen calendar days from the date the first grievance
appeal was sent to the inmate. Id. at¶16. An
assistant director conducts the second level appeal.
Id. at ¶17. The assistant director issues a
final administrative decision, which is not subject to
further administrative review. Id.
inmate grievance tracking system shows that Mr. Lepesh has
filed over sixty grievances since 2013. [35 at ¶ 18].
Two of those grievances have some relationship to this
action. The first relates to an issue he had with a defendant
named in his Amended Complaint-defendant Ayala-and an issue
he mentioned in his Amended Complaint-his termination from
his job. Id. at Attach. 7, p. 1. Specifically, in a
grievance dated July 8, 2016, Mr. Lepesh grieved his June 24,
2016, termination, claiming defendant Ayala falsely said he
left his job without telling anyone. Id. The July
2016 grievance did not mention either Mr. Lepesh's claim
that Defendants were serving inmates food unfit for human
consumption or his claim that defendant Ayala terminated him
in retaliation for his complaints about the food. ODOC denied
Mr. Lepesh's July 2016 grievance because ODOC rules
prohibit filing a grievance about a program failure if the
failure "is a direct result of a misconduct report where
the inmate was found in violation, " and Mr. Lepesh was
found in violation of a misconduct report related to leaving
his job without telling anyone. Id. at Attach. 8.
second grievance, which is dated November 27, 2016 by Mr.
Lepesh but stamped "received by the Snake River
Correctional Institution Grievance Processing" on
November 29, 2017, directly relates to complaints about being
served food unfit for human consumption that Mr. Lepesh
raises in his Amended Complaint, but it was untimely-it was
filed more than thirty days after events complained of in the
grievance. [35 at Attach. 11 and 12]. Additionally, given the
prison stamp, which says 2017 not 2016, it appears that he
submitted the grievance almost five months after he filed
this action on July 10, 2017. Id.
filed their Motion for Summary Judgment on March 27, 2019. On
March 28, 2019, I issued a Summary Judgement Advice Notice
and Scheduling Order. . As well as setting deadlines for
Mr. Lepesh's Response, the Order explained that, if
granted, Defendants' Summary Judgment Motion could end
Mr. Lepesh's case and explained what Mr. Lepesh needed to
do to oppose the Motion. (Id.). Mr. Lepesh filed a
Response opposing Defendant's summary judgment Motion on
June 24, 2019, captioned "Response in Opposition to
Motion for Summary Judgement and Motion to Strike the
Defendants' Motion for Summary Judgment" along with
a supporting declaration and exhibits. On August 6, 2019, a
few weeks after Defendants filed a Reply in support of their
Motion, Mr. Lepesh filed a document captioned, "Reply in
Support of Motion to Strike Defendants' Motion for
Summary Judgment and Plaintiffs Reply to Dkt. #50." I
consider Mr. Lepesh's August 6, 2019, filing a sur-reply.
summary judgment, the moving party bears the initial burden
of pointing out the absence of a genuine issue of fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
This burden is met either by "produc[ing] evidence
negating an essential element of the nonmoving party's
claim or show[ing] that the non-moving party does not have
enough evidence of an essential element to carry its ultimate
burden of persuasion at trial." Nissan Fire &
Marine Ins. Co., Ltd. v. Fritz Companies, Inc., 210 F.3d
1099, 1103 (9th Cir. 2000). If the moving party carries its
burden, the burden shifts to the non-moving party to set
forth evidence to support its claim and to show there is a
genuine issue of fact for trial. Id. The court views
the record in the light most favorable to the non-moving
party. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986) (quotations and citation
omitted). This is especially true when the non-movant is
apro se litigant. Garaux v. Pulley, 739
F.2d 437, 439 (9th Cir. 1984) (stating pro se
pleadings are liberally construed, particularly where civil
rights claims are involved). 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, 475 U.S. at 587 (quotations and citation
Lepesh concedes that the applicable statute of limitations
bars his claims that accrued in 2013 and that Eleventh
Amendment bars his claims against the ODOC. [44 at 7, 52 at
9-10]. Accordingly, I grant the Defendants' Motion about
claims accruing in 2013 and against the ODOC. Mr. Lepesh,
however, disputes Defendants' assertion that he failed to
exhaust his administrative remedies for the claims raised in
his Amended Complaint, as required by the Prison Litigation
Reform Act (PLRA).
Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e,
requires prisoners to exhaust all administrative remedies
before they file an action in federal court. Woodford v.
Ngo, 548 U.S. 81, 88 (2006). Prisoners must exhaust
their prison administrative procedures regardless of the type
of relief sought and the type of relief available through
administrative procedures. Morton v. Hall, 599 F.3d
942, 945 (9th Cir. 2010). Prisoners must exhaust their
administrative remedies before they file suit, not during the
pendency of the lawsuit. McKinneyv. Carey, 311 F.3d
1198, 1199 (9th Cir.) (per curiam). "[O]nly those
individuals who are prisoners (as defined by 42 U.S.C. §
1997e(h)) at the time they file suit must comply with the
exhaustion requirements of 42 U.S.C. § 1997e(a)."
Talamantes v. Leyva, 575 F.3d 1021, 1024 (9th Cir.
2009) (concluding that because Talamantes was released from
custody over a year before filing his action in federal
court, he was not required to exhaust administrative remedies
before filing his action). The PLRA defines a prisoner as
"any person incarcerated or detained in any facility who
is accused of, convicted of, sentenced for, or adjudicated
delinquent for, violations of criminal law or the terms and
conditions of parole, probation, pretrial release, or
diversionary program." 42 U.S.C. § 1997e(h).
to exhaust administrative remedies is an affirmative defense
that the defendant is required to plead and prove. Albino
v. Baca,747 F.3d 1162, 1169 (9th Cir. 2014) (en banc).
"Once the defendant has carried that burden, the
prisoner has the burden ... to come forward with evidence
showing that there is something in his particular case that
made the existing and ...