Jeremiah v. Nooth et al

Filing 70

OPINION AND ORDER: I ADOPT Judge Coffin's F & R 61 . Defendants' motion for summary judgment 40 is GRANTED and this case is DISMISSED. Signed on 3/22/2018 by Judge Ann L. Aiken.**4 PAGE(S), PRINT ALL**(Brian Jeremiah, Prisoner ID: 11464377) (ck)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION

BRIAN A. JEREMIAH,

Case No. 2:16-cv-00532-TC
OPINION AND ORDER

Plaintiff,

v.
MARK NOOTH, Superintendent, SRCI,
et al.,
Defendants.

AIKEN, District Judge:
In this prisoner civil rights action, plaintiff Brian A. Jeremiah sued state defendants in
connection with his incarceration at Snake River Conectional Institute ("SCRI") in Ontario,
Oregon.

Magistrate Judge Coffin filed his Findings and Recommendation ("F &R") on

December 18, 2017, recommending this Court grant defendants' motion for summary judgment.
The F&R is now before me pursuant to 28 U.S.C. § 636(b) and Fed. Civ. R. P. 72. I review de
nova those portions of the F&R to which objection is made. 28 U.S.C. § 636(b)(l)(C); Fed. R.

Civ. P. 72(b)(3); Holder v. Holder, 392 F.3d 1009, 1022 (9th Cir. 2004).

Page 1 - OPINION AND ORDER

Following a de novo review, I find no error. Plaintiff objects to every aspect of Judge
Coffin's F&R, often in general terms. 1 Numerous courts have held that where a plaintiff only
makes general objections, rather than specific objections, to an F&R, de novo review is not
required. 28 U.S.C. § 636(b)(l)C); Fed. R. Civ. P. 72(b)(3); Grady v. Biter, 2016 WL 537175,
*2 (S.D. Cal. Feb. 10, 2016); Alcantara v. McEwen, 2013 WL 4517861, *l (S.D. Cal. Aug. 15,
2013) (citing numerous cases).
However, because plaintiff is pro se, I have carefully considered even his general
objections. I explain only the closest question, plaintiffs objection to Judge Coffin's finding
that, with respect to his claims that he was denied the opportunity to adequately decontaminate
after he was pepper sprayed (claims 6, 10, and 11), plaintiff exhausted his administrative
remedies before filing his to1t suit.
Plaintiff first argues that he exhausted his administrative remedies with respect to the
claims concerning pepper spray decontamination. Plaintiff claims that, on August 21, 2015, he
was in the SCRI dayroom when he received a threat from another inmate. He repo1ted the threat
to a cotTections officer, Officer Dotson. Officer Dotson asked him to identify who made the
threat, and when plaintiff could not, Officer Dotson asked plaintiff to stay within his
unobstructed view while he dealt with the situation. Plaintiff then pointed out who he believed
had made the tln·eat and sat back down in the dayroom. Another inmate then grabbed a shelf off
the wall and began beating plaintiff with it. At that time, Officer Dotson told the inmates to stop
fighting, called for a response team, and deployed pepper spray, which hit both the plaintiff and
his assailant. Another officer arrived and also deployed his pepper spray. Plaintiff claims that he
1

Plaintiff opens his objections by accusing Judge Coffin of "blatant bias" and of
"ignor[ing]" all of plaintiffs arguments "regardless of precedent." Obj. F&R 1. Nothing
indicates that Judge Coffin departed from his duty to fairly and objectively adjudicate the
motion.
Page 2 - OPINION AND ORDER

was not allowed to shower for two days after this incident, and that he was only given two wet
towels to clean off the pepper spray residue.
Plaintiff claims that he exhausted the grievance process with regards to this incident by
filing an initial grievance on August 29, 2015.

That grievance addressed both the pepper

spraying itself and the failure to allow plaintiff to decontaminate himself afterwards.

On

September 18, 2015, the initial grievance was accepted, and on October 12, 2015, it was denied.
On October 17, 2015, plaintiff filed his first grievance appeal, on October 21, 2015, it was
accepted, on December 22, 2015, it was denied.
second appeal.

On December 26, 2015, plaintiff filed his

Between December 28, 2015, and January 7, 2016, plaintiff and the prison

administration conesponded to determine the possession of the original documents plaintiff
submitted, and on January 14, 2016, the second appeal was accepted. Plaintiff was told he
should await a response. Plaintiff claims he waited over 60 days for a response, when 30 days is
provided for in the relevant regulation. See Or. Admin. R. 291-109-0170. Therefore, plaintiff
asserts, these claims were exhausted, and the filing of his tort claim was appropriate.
However, the record shows that plaintiff gave his tort claim notice on January 21, 2016,
only one week after his appeal was accepted. Pursuant to the prison administration's tmt claim
notice procedure, the notice stopped the processing of plaintiffs second appeal.

Because

plaintiff cut off the still-pending grievance process by filing suit, he did not exhaust his available
administrative remedies.
In the alternative, plaintiff asserts that his failure to exhaust should be excused because he
filed this lawsuit before his second appeal was resolved due to his mistaken impression that the
statute of limitations would not toll while he completed the administrative appeals process. The
Oregon Tort Claims Act generally requires tort claims against a public body such as a state

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prison to be filed within 180 days of"the alleged loss or injury." Or. Rev. Stat.§ 30.275(2)(b).
That statute may seem as if it gives a hard deadline of 180 days after the alleged loss or injury,
but it is well-established that state statutes of limitations must be tolled while prisoners complete
the mandatory exhaustion process.

Brown v. Va/off, 422 F.3d 926, 943 (9th Cir. 2005).

Plaintiffs ignorance of the law on this point does not excuse his failure to exhaust administrative
remedies. See Sapp v. Kimbrell, 623 F.3d 813, 827 (9th Cir. 2010) (a prisoner's good faith but
umeasonable belief that he could not proceed with the grievance process does not excuse failure
to exhaust).
I agree with Judge Coffin's finding that plaintiff failed to exhaust the claims related to
pepper spray decontamination.

Though the administrative grievance process may feel

cumbersome and slow to plaintiff, it is well established that a prisoner must exhaust
administrative remedies before filing suit.
I ADOPT Judge Coffin's F&R (doc. 61). Defendants' motion for summary judgment
(doc. 40) is GRANTED and this case is DISMISSED.
IT IS SO ORDERED.
~.

1WJ

Dated this ,,,)_ day of March 2018.

C2~0Ju/J
Ann Aiken
United States District Judge

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