Hicks v. O.D.O.C. et al

Filing 50

OPINION AND ORDER: Plaintiffs claims are barred under the PLRA, and defendants Motion for Summary Judgment (ECF No. 30 ) is GRANTED. Signed on 6/8/2017 by Judge Michael J. McShane. (copy mailed to plaintiff) (kms)

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON

WILLIAM MITCHELL HICKS, JR.,

Case No. 2:15-cv-01220-MC

Plaintiff,

OPINION AND ORDER

v.
O.D.O.C.; T.R.C.I.; SUPERINTENDENT
MYRICK; CAPT. PEDRO; LT. EDISON;
LT. BOSTON; CORP. GRANT; C/O
LEMMON; T.R.C.I. DENTIST DR.
PUTNAM,
Defendants.
___________________________________
MCSHANE, District Judge:
Plaintiff, an inmate currently at Snake River Correctional Institution (SRCI), filed suit
pursuant to 42 U.S.C. § 1983 alleging deliberate indifference to his safety and serious medical
needs and retaliation. Defendants now move for summary judgment under Federal Rule of Civil
Procedure 56 on all claims. For the reasons set forth below, defendants’ motion is granted.
DISCUSSION
In his complaint, plaintiff alleges three claims for relief: 1) failure to protect him from
assault; 2) deliberate indifference to his serious dental needs; and 3) denial of housing placement
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due to retaliation. Compl. at 4-6 (ECF No. 2). Defendants contend that plaintiff failed to exhaust
his administrative remedies with respect to each claim and move for summary judgment
accordingly. 1 To prevail on their motion, defendants must show that there is no genuine dispute
as to any material fact and they are entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); 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.”).
Under the Prison Litigation Reform Act (PLRA), inmates must exhaust all available
administrative remedies before filing a court action to redress prison conditions or incidents. 42
U.S.C § 1997e(a). The exhaustion requirement is mandatory and requires compliance with both
procedural and substantive elements of the prison grievance processes. Woodford v. Ngo, 548
U.S. 81, 84, 90 (2006). To meet this requirement, inmates must complete the administrative
review process and comply with all applicable procedural rules by appealing a grievance
decision to the highest level before filing suit. Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir.
2009) (per curiam); McKinney v. Carey, 311 F.3d 1198, 1199-1200 (9th Cir. 2002) (per curiam).
Notably, the PLRA does not require exhaustion when administrative remedies are “effectively
unavailable.” Sapp v. Kimbrell, 623 F.3d 813, 822 (9th Cir. 2010); see also Marella, 568 F.3d at
1027 (administrative remedies may be effectively unavailable where the prisoner lacks the
necessary forms or is informed that he cannot file a grievance); Brown v. Valoff, 422 F.3d 926,
937 (9th Cir. 2005) (an administrative remedy must be available “as a practical matter”).
1

Defendants also argue that several defendants had no involvement in the alleged
deprivation of plaintiff’s rights, defendants did not exhibit deliberate indifference to plaintiff’s
safety or his medical needs, and qualified immunity and the Eleventh Amendment bar plaintiff’s
claims. I find that plaintiff failed to exhaust his administrative remedies and do not address
defendants’ remaining arguments.
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The Oregon Department of Corrections (ODOC) has a three-step grievance and appeal
process to address inmate complaints. Or. Admin. R. 291-109-0140(1)(a). Inmates may file
grievances for numerous issues, including “unprofessional behavior or action which may be
directed toward an inmate by an employee or volunteer” or an “oversight or error affecting an
inmate.” Id. 291-109-0140(2)(c),(d). Unless the matter is an emergency, the inmate must file the
requisite grievance form within 30 working days of the alleged condition or incident. Id. 291109-0150(2). A grievance that is returned to the inmate on procedural grounds may not be
appealed. Instead, the inmate may resubmit the grievance within 14 days if the procedural errors
can be corrected. Id. 291-109-0160(5). An inmate may appeal the initial grievance response
within 14 calendar days from the date the denial was sent to the inmate. Id. 291-109-0170(1)(b).
If the appeal is denied, the inmate may file a second and final appeal within 14 days of the date
the denial was sent to the inmate. Id. 291-109-0170(2)(c). As with initial grievances, appeals that
are returned to the inmate for procedural reasons may not be appealed further but may be
resubmitted after correction of the procedural errors. Id. 291-109-0170(1)(c),(2)(d). A decision
following a second appeal is final and not subject to further review. Id. 291-109-0170(2)(f).
A. Failure to Protect and Housing Retaliation
From September 2012 to July 2015, plaintiff was housed at Two Rivers Correctional
Institution (TRCI). Plaintiff alleges that on September 10, 2014 he was punched from behind and
on the side of his jaw by inmate Shawn Johnson. Compl. at 4. Johnson had previously struck
plaintiff in the face in January 2014. Plaintiff contends that, prior to the September assault, he
told Capt. Pedro that he was concerned about Johnson and requested a transfer to the
Administrative Housing Unit (AHU) at SRCI. Plaintiff alleges that he was instructed to fill out a
“conflict form” regarding inmate Johnson and was assured by Capt. Pedro that Johnson would
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not be placed in plaintiff’s housing unit, Unit-8. 2 Plaintiff contends that despite his concerns,
inmate Johnson was placed in Unit-8. Plaintiff further alleges that he informed Correctional
Officer Lemmon about his issue with Johnson approximately 30 minutes before the September
assault, and that Lemmon failed to take action. Compl. at 4-5. Plaintiff also alleges that
defendants refused to transfer him to the SRCI AHU in retaliation for plaintiff’s past activities as
an informant for federal law enforcement agencies. Compl. at 5.
Defendants contend that plaintiff did not exhaust his administrative remedies as to either
claim. I agree. According to the record before the court, plaintiff submitted four grievances
regarding protection from Johnson and placement in administrative housing, and he did not
complete the administrative process for any of them.
On January 28, 2014, plaintiff submitted Grievance No. TRCI-2014-01-175 (dated
January 26, 2014). Plaintiff complained that he was not assigned to the AHU after being
assaulted by Johnson. Eynon Decl. Att. 5 at 1. The grievance was denied on February 13, 2014,
because a separate review process applies to requests to be placed in administrative segregation
and an inmate cannot grieve that issue. Id. Att. 5 at 2. Plaintiff did not appeal this denial.
On February 21, 2014, plaintiff submitted a discrimination complaint, No. TRCI-201402-156. Plaintiff alleged discrimination due to the fact that he had not been placed in
administrative segregation. Eynon Decl. Att. 6 at 1. On March 6, 2014, the complaint was denied
because plaintiff’s complaint was considered a grievance issue and he had used the wrong form.
Plaintiff did not file an appeal. Id. Att. 6 at 2.

2

The evidence reflects that plaintiff did not fill out a conflict form for Johnson until after
the September assault. Eynon Decl. Att. 7.
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On September 15, 2014, plaintiff submitted Grievance No. TRCI-2014-09-061 (dated
September 14, 2014). Plaintiff complained that he had not been assigned a single cell or to
administrative segregation and, as a result, had been assaulted again by Johnson on September
10. Plaintiff requested transfer to SCRI AHU to protect him from further injury. Eynon Decl.
Att. 7 at 1. On September 28, 2014, Lt. Boston responded to the grievance and explained he and
plaintiff had met to discuss plaintiff’s concerns. Lt. Boston explained that plaintiff had
completed a conflict form regarding Johnson and reminded plaintiff that he was familiar with the
process to request administrative housing and could obtain an application. Id. Att. 7 at 2.
Plaintiff filed an appeal, and on October 14, 2014 it was returned for corrections. Id. Att.
7 at 3-5. On October 28, 2014, plaintiff submitted a corrected appeal and complained that a
conflict form for Johnson would not be effective and requested housing in administrative
segregation. Id. Att. 7 at 6. On November 25, 2014, Superintendent Myrick responded and
explained that an approved conflict form is a substantial step in avoiding potential issues
between inmates. Superintendent Myrick reminded plaintiff that he had met with Capt. Iverson
on October 10, 2014 and had signed an Assignment to Administrative Segregation form to
initiate the process. Id. Plaintiff did not file a second appeal and did not exhaust his
administrative remedies as to this grievance.
On September 25, 2014, plaintiff submitted Grievance No. TRCI-2014-09-125 (dated
September 24, 2014) and complained that he was assaulted after being housed in the same unit as
Johnson. Eynon Decl. Att. 9 at 1. On October 1, 2014, Capt. Pedro responded and reminded
plaintiff that they had spoken about Johnson a few weeks earlier and Capt. Pedro had explained
that prison staff was not aware that Johnson would assault plaintiff again. Id. Att. 9 at 2. Capt.
Pedro also confirmed that they discussed plaintiff’s desire to be housed in AHU because of his
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past history as an informant. Capt. Pedro restated his opinion that plaintiff did not need
assignment to AHU and reminded plaintiff that staff and other inmates did not know the
information about his past until plaintiff shared it. Capt. Pedro indicated that he considered “this
matter closed at this time.” Id.
Plaintiff filed an appeal, and on October 24, 2014, his appeal was returned it for
corrections because it was considered outside the scope of the original grievance. Eynon Decl.
Att. 9 at 3-4. On December 9, 2014, plaintiff submitted a second appeal. Id. Att. 9 at 5. This
appeal was denied because it was received more than 14 days after the first appeal response was
sent to plaintiff. Id. at 6. Consequently, plaintiff did not exhaust the administrative process for
this grievance. Woodford, 548 U.S. at 93-95 (requirement of “proper exhaustion” is not met
when prisoners miss deadlines set by the institution’s grievance policy).
Plaintiff does not dispute that he failed to exhaust his administrative remedies or allege
that they were unavailable to him. Rather, plaintiff simply states that in response to Grievance
No. TRCI-2014-09-125, Capt. Pedro indicated that he considered the matter of plaintiff’s
housing request to be “closed.” Regardless of what Capt. Pedro stated, additional administrative
remedies remained with respect to Grievance No. TRCI-2014-09-125 and plaintiff did not
complete them.
In sum, plaintiff did not exhaust his administrative remedies for any grievance related to
the failure to protect him from Johnson or housing retaliation. Therefore, plaintiff’s failure to
protect and housing retaliation claims are barred under the PLRA.
B. Deliberate Indifference to his Serious Medical Needs
Plaintiff alleges deliberate indifference to his serious medical needs based on a delay in
receiving dental care. Plaintiff alleges that the assault by Johnson on September 10, 2014
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resulted in a broken tooth and severe pain and that he was not examined by a dentist until
November 14, 2014. Compl. at 5. In support of his claim, plaintiff submits inmate
communication forms requesting dental care in September and November 2014. Pl.’s Response
at 24-26 (ECF No. 44). However, plaintiff did not submit a formal grievance until November.
Specifically, on November 20, 2014, plaintiff submitted Grievance No. TRCI-2014-11086 (dated November 18, 2014) and complained about his dental treatment. Eynon Decl. Att. 10
at 1. Dr. Bender responded and explained that plaintiff had a tooth extracted on October 31, 2014
and was seen and treated two weeks later, on November 14, 2014, for an infection. Id. Att. 10 at
2. Dr. Bender further noted that plaintiff had a follow-up exam on November 21, 2014 and a
small bone fragment was removed and the extraction site was reopened and cleaned. Id.
Ultimately, Dr. Bender stated that he did not see cause for plaintiff’s allegedly severe pain. Id.
Plaintiff did not appeal the response he received from Dr. Bender.
Accordingly, plaintiff failed to exhaust his administrative remedies with respect to his
claim alleging lack of dental care, and this claim is barred.
CONCLUSION
For the reasons explained above, plaintiff’s claims are barred under the PLRA, and
defendant’s Motion for Summary Judgment (ECF No. 30) is GRANTED.
IT IS SO ORDERED.
DATED this 8th day of June, 2017.

/s Michael J. McShane
Michael McShane
United States District Judge

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