United States District Court, D. Oregon, Eugene Division
OPINION AND ORDER
YIM YOU UNITED STATES MAGISTRATE JUDGE
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.
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)
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.
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
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).
Exhaustion Under the Prison Litigation Reform Act
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)).
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).
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).
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.
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.
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 ...