McMain v. Peters et al

Filing 87

ORDER: Defendants' motion to dismiss 55 construed as a motion for summary judgment is granted. Plaintiff's claims are dismissed without prejudice. Defendants' motion to stay discovery 57 and plaintiff's motion 38 are denied as moot. Signed on 3/2/2015 by Chief Judge Ann L. Aiken. (plb)

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
GORDON MCMAIN,
Plaintiff,

2:13-cv-01632-AA
ORDER

v.

COLLETTE PETERS,
et al.,
Defendants.
Aiken, District Judge.
Plaintiff,

an

inmate

in

the

custody

of

the

Oregon

Department of Corrections (ODOC), filed a complaint under 42
U.S.C. alleging that defendants have violated his Eight and
Fourteenth Amendment rights by failing to provide him with
medication that were prescribed to him before he entered into
ODOC

custody.

Plaintiff

seeks

declaratory

and

injunctive

relief. Complaint (#2) p. 1.
Defendants filed an "Unenumerated Rule 12(b) Motion to

1 - ORDER

Dismiss" (#55) on the ground that plaintiff did not exhaust
his administrative remedies before filing this action.
Order

(#61)

entered April 11,

2014,

defendants'

By

motion to

dismiss was construed as a motion for summer judgment pursuant
to the Ninth Circuit Court of Appeals decision in Albino v.
Baca,

2014 WL 1317141

(9th Cir.

plaintiff had filed a response

April 3,
(#79)

2014).

Although

including an affidavit

and exhibits (#80) to defendants' motion to dismiss, on August
19, 2014, plaintiff was sent a Summary Judgment Advice Order
(#84). Plaintiff has not filed any supplemental material.
The Prison Litigation Reform Act requires that prisoners
exhaust available administrative remedies before bringing a
federal

action

concerning

prison

conditions.

Arpaio, 557 F.3d 1117, 1119 (9th Cir. 2009)
§

1997e (a)) .

remedies

Griffin

v.

(citing 42 U.S.C.

Inmates are required to exhaust all grievance

before

filing

a

Section

1983

action,

including

appealing the grievance decision to the highest level within
the grievance system.
Cir.

2003);

2002);

Bennett v.

McKinney v.

Moreover,

Wyatt v.
King,

Carey,

Terhune,

315 F.3d 1108

293 F.3d 1096,

311

F. 3d

1198

1098

(9th

(9th Cir.

(9th Cir.

2002).

"the PLRA exhaustion requirement requires proper

exhaustion."

Woodford v. Ngo, 548 U.S. 81, 93 (2006).

This

means that a prisoner must "complete the administrative review
process in accordance with the applicable procedural rules,

2 - ORDER

including deadlines,
federal court."

as a precondition to bringing suit in

Marella v. Terhune, 568 F.3d 1024, 1027 (9th

Cir. 2009) (quoting Woodford, 548 U.S. at 88).
"If the District Court concludes that the prisoner has
not exhausted non-judicial

remedies,

the proper remedy is

dismissal of the claim without prejudice." Wyatt v. Terhune,
315 F.3d at 1120.
The ODOC has a three level grievance and appeal remedy
process in place to address inmate complaints and plaintiff
had administrative remedies available to address each of the
claims raised in this proceeding.
Taylor (#56)

~~

Declaration of James A.

5-9. Inmates are informed of the processes for

filing a grievance during admission and orientation to the
facility where they are housed.

In addition the grievance

process is explained in the Inmate Handbook, which is given to
each inmate.
The

Id.

facts

giving

rise

to

plaintiff's

claims

are

as

follows. Plaintiff alleges that he is entitled to testosterone
injections because they were prescribed to him before he came
into ODOC custody and that defendants have refused to provide
him with such treatment because he does not have Klinefelters
Disease.

Plaintiff

further

alleges

that

defendants

acted

negligently by refusing perform further tests to determine
whether he has Klinefelter's Disease. Plaintiff alleges that

3 - ORDER

as

a

result

of defendants'

conduct

the

has

suffered from

chronic lower back pain.
Plaintiff's complaint can be construed as alleging two
claims

for

defendants'

relief.

Plaintiff

"deliberate

alleges

indifference

in
to

claim one
medical

that

needs"

constituted cruel and unusual punishment under the Eighth
Amendment. Complaint #2) p. 12.

Plaintiff alleges as claim

two that "defendants Shelton and Blakeslee have violated the
Equal

Protection Clause of the

14th Amendment

of the

U.S.

Constitution, by denying the Plaintiff Gordon McMain Hormone
Replacement (testosterone Injections) on the premise that he
'does not have Klinfelter's Disease.'" Complaint (#2) p. 13.
The record reflects that plaintiff filed three grievances
regarding the issues he alleges in his first claim for relief.
However, plaintiff failed properly exhaust his administrative
remedies as to those claims because he did not comply with the
applicable procedural

rules

regarding the

filing

of those

grievances and did not file appeals of those grievances once
they had been denied.

Declaration of James A.

Taylor

(#56)

<][<][12-13, 14-16, 18-19.

Plaintiff did not
allegations

file

any grievances concerning the

in his claim two that defendants violated his

Equal Protection rights under the Fourteenth Amendment.

Id.

Moreover, plaintiff has never filed any grievance against

4 - ORDER

defendants Jason Bell,

Collette Peters,

Dr.

Steve Shelton,

Renee Smith, or James A Taylor, the persons he has named as
defendants in this proceeding.
Based on the foregoing I

find that plaintiff has not

properly exhausted his administrative remedies with respect to
his claims in this proceeding. Therefore, defendants' Motion
to Dismiss (55) construed as a motion for summary judgment is
allowed. Plaintiff's claims are dismissed without prejudice,.
Defendants'
Motion (#38)

Motion to stay discovery
are denied as moot.

(#57)

and plaintiff's

The Clerk of the Court is

directed to enter a judgment dismissing this action.

Any appea2 £rom this order or judgment dismissing this
case

wou2d

be

£rivo2ous

and

not

taken

in

good

£aith.

T.here£ore, p2ainti££'s in forma pauperis status is revoked.

IT IS SO ORDERED
DATED this

;l~ay

Ann Aiken
United States District Judge

5 - ORDER