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Warren v. Battle

United States District Court, D. Oregon, Eugene Division

January 6, 2020

TRAVIS DAVID WARREN, Plaintiff,
v.
JOHN BATTLE, NP, OLE HANSEN, and GARTH GULICK, Defendants.

          OPINION AND ORDER

          YOULEE YIM YOU UNITED STATES MAGISTRATE JUDGE

         Pro se plaintiff, Travis David Warren, an inmate in the custody of the Oregon Department of Corrections (“ODOC”), has filed a civil rights action pursuant to 42 U.S.C. § 1983 against defendants John Battle, a nurse practitioner who was employed by the Lane County Adult Correctional Facility (“Lane County Jail”), and ODOC medical doctors, Ole Hansen and Garth Gulick (collectively, “state defendants”). Plaintiff alleges that while in the custody of Lane County Jail and later ODOC, defendants failed to provide him with surgery for a fractured elbow and thus denied or delayed medical care in violation of his rights under the Eighth and Fourteenth Amendments. Plaintiff seeks monetary and punitive relief.

         The parties have filed cross-motions for summary judgment. For the reasons discussed below, defendants' motions for summary judgment (ECF #61, #83) are GRANTED, and plaintiff's motions for summary judgment (ECF ##64, 80) are DENIED.

         STANDARD OF REVIEW

         Under Federal Rule of Civil Procedure 56(a), “the court shall grant 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.” The party moving for summary judgment bears the initial responsibility of informing the court of the basis for the motion and identifying portions of the pleadings, depositions, answers to interrogatories, admissions, or affidavits that demonstrate the absence of a triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party does so, the nonmoving party must “go beyond the pleadings” and “designate ‘specific facts showing that there is a genuine issue for trial.'” Id. at 342 (citing F.R.C.P. 56(e)).

         In determining what facts are material, the court considers the underlying substantive law regarding the claims. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). Otherwise stated, only disputes over facts that might affect the outcome of the suit preclude the entry of summary judgment. Id. A dispute about a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Id. at 248-49. A “scintilla of evidence” or “evidence that is merely colorable or not significantly probative” is insufficient to create a genuine issue of material fact. Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). The court “does not weigh the evidence or determine the truth of the matter, but only determines whether there is a genuine issue for trial.” Balint v. Cason City, Nev., 180 F.3d 1047, 1054 (9th Cir. 1999). “Reasonable doubts as to the existence of material factual issue are resolved against the moving parties and inferences are drawn in the light most favorable to the non-moving party.” Addisu, 198 F.3d at 1134.

         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) (citations and quotation marks omitted).

         DISCUSSION

         I. Exhaustion Under the Prison Litigation Reform Act

         Congress enacted the Prison Litigation Reform Act (“PLRA”) “in the wake of a sharp rise in prisoner litigation in the federal courts.” Woodford v. Ngo, 548 U.S. 81, 84 (2006) (internal citations omitted). A central feature of the PLRA is the “invigorated” exhaustion provision, 42 U.S.C. § 1997e(a), which provides that “[n]o action shall be brought with respect to prison conditions under section 1983 . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” Id. (citing Porter v. Nussle, 534 U.S. 516, 524 (2002)). This provision requires pre-litigation exhaustion and mandates dismissal “‘when there is no presuit exhaustion,' even if there is exhaustion while suit is pending.” Lira v. Herrera, 427 F.3d 1164, 1170 (9th Cir. 2005) (emphasis in original) (quoting McKinney v. Carey, 311 F.3d 1198, 1200 (9th Cir. 2002) (per curium)).

         The PLRA strengthened the exhaustion requirement such that “[e]xhaustion is no longer left to the discretion of the district court, but is mandatory.” Woodford, 548 U.S. 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. (citation omitted). Moreover, “exhaustion of available administrative remedies is required for any suit challenging prison conditions, not just for suits under § 1983.” Id. (citation omitted).

         “[F]ailure to exhaust administrative remedies is an affirmative defense that the defendant must plead and prove in a PLRA case.” Albino v. Baca, 747 F.3d 1162, 1176 (9th Cir. 2014). It is the defendant's burden “to prove that there was an available administrative remedy, and that the prisoner did not exhaust that available remedy.” Id. at 1172 (citation omitted). “To be available a remedy must be available as a practical matter; it must be capable of use; at hand.” Id. at 1171 (citations and quotations mark omitted).

         Plaintiff alleges that he filed two grievances-one with the Lane County Jail and one with ODOC-regarding the “improper treatment and denial of medical care for [his] broken elbow.” Second Am. Compl. 7, ECF #55. Plaintiff claims that he “appealed both grievances all the way. The process is completed.” Id. However, plaintiff has not filed any evidence of the grievances or the grievance procedures of either facility, and neither have defendants.

         Although exhaustion of administrative remedies is mandatory for prisoners challenging prison conditions, exhaustion must be pleaded and proven as an affirmative defense by the defendant. See Albino, 747 F.3d at 1176. In this case, defendants asserted the PLRA as an affirmative defense in their answers to the Second Amended Complaint. ECF #60, ¶5; ECF #75, ¶ 4. However, they do not argue lack of exhaustion in their motions for summary judgment or in response to plaintiff's motions for summary judgment. Therefore, defendants have waived the defense.

         II. Constitutional Claims

         Plaintiff alleges that his Eighth and Fourteenth Amendment rights were violated when Battle failed to perform elbow surgery while he was incarcerated in the Lane County Jail and state defendants delayed in providing him the same surgery after he was transferred to ODOC custody. Second Am. Compl. 5-8, ECF #55. “Inmates who sue prison officials for injuries suffered while in custody may do so under the Eighth Amendment's Cruel and Unusual Punishment Clause or, if not yet convicted, under the Fourteenth Amendment's Due Process Clause.” Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1067-68 (9th Cir. 2016); see also Gordon v. Cty. of Orange, 888 F.3d 1118, 1124-25 (9th Cir. 2018) (“[W]e hold that claims for violations of the right to adequate medical care ...


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