Sol v. Department of Corrections et al

Filing 40

ORDER: Granting Motion for Partial Summary Judgment 28 . The following claims are DISMISSED: Claim II in its entirety; Claim I against ODOC, SRCI, and defendants Lande and Olive in their official capacities; and claims against defendant Parks. Plaintiffs sole remaining claim is Claim I against defendants Lande and Olive in their individual capacities. Signed on 8/8/2017 by Judge Ann L. Aiken. A copy of this Order was mailed to pro se plaintiff Tyler Sol. (ck)

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON

TYLER SOL,

Case No. 2:16-cv-00822-AA
Plaintiff,

ORDER

v.
DEPARMENT OF CORRECTIONS;
SNAKE RIVER CORRECTIONAL
INSTITUTION; J. LANDE; J. OLIVE;
J. PARAL,
Defendants.

AIKEN, District Judge:
Plaintiff, an inmate at Two Rivers Correctional Institution, filed this action pursuant to 42
U.S.C. § 1983 alleging violations of his civil rights. Defendants now move for partial summary
judgment on plaintiffs claims. For the reasons set forth below, defendants' motion is granted.
DISCUSSION
In Claim I of his complaint, plaintiff alleges the use of excessive force. 1 In Claim II, he
alleges interference with his ability to send mail and the imposition of excessive fees for faxes
1

In Claim I, plaintiff specifically alleges violations of criminal statutes and the
Americans With Disabilities Act (ADA). However, plaintiff has no private right of action under
federal criminal statutes and no authority to enforce them. Further, the substance of Claim I
alleges the use of excessive force and not the denial of, or exclusion from, correctional services,
OPINION AND ORDER
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and misconduct reports. (ECF No. I) Defendants move for partial summary judgment on
grounds that: 1) plaintiffs failure to exhaust administrative remedies bars judicial review of
Claim II; 2) the Eleventh Amendment bars suit against the Oregon Department of Corrections
(ODOC), Snake River Correctional Institution (SRCI), and individual defendants in their official
capacities; and 3) plaintiffs failure to allege personal participation by defendant Jamie Parks
requires dismissal of claims against him.2 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).

A. Exhaustion of Remedies
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 § l 997e(a). The exhaustion requirement is mandatory and requires compliance with both
procedural and substantive elements of the prison grievance process. Wooclford v. Ngo, 548 U.S.
81, 85, 90 (2006). Specifically, imnates must complete the administrative review process and
comply with all applicable procedural rules, including deadlines, by appealing a grievance
decision to the highest level before filing suit. Id. at 88; J\!farella v. Terhune, 568 F.3d 1024, 1027
(9th Cir. 2009) (per curiam); lv!cKinney v. Carey, 311 F.3d 1198, 1199-1200 (9th Cir. 2002) (per
curiam). However, the PLRA does not require exhaustion when administrative remedies are
"effectively unavailable." Sapp v. Kimbrell, 623 F.3d 813, 822 (9th Cir. 201 O); see also J\!farella,
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).
programs, or activities due to a disability. 42 U.S.C. § 12132. Accordingly, Claim I is construed
as a claim for excessive force under 42 U.S.C. § 1983.
2

Defendants identify defendant J. Para! as Jamie Parks, and the court likewise refers to
defendant Parks.
2OPINION AND ORDER

ODOC has a three-level grievance and appeal process to address inmate complaints.
Inmates may file grievances for numerous issues, including "misapplication of any
administrative directive or operational procedure," "unprofessional behavior or action which
may be directed toward an inmate by an employee or volunteer," or an "oversight or error
affecting an inmate." Or. Admin. R. § 291-109-0140(2)(a),(c),(d). Unless the matter is an
emergency, the inmate must file a grievance form within 30 working days of the alleged
condition or incident. Id. § 291-109-0150(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 ifthe procedural errors can be corrected. Id. § 291-109-0160(5). An imnate may appeal
the initial grievance response by filing a first-level appeal within 14 calendar days from the date
the denial was sent to the inmate. Id. § 29 I- I 09-0 I 70(1 )(b). If the first-level appeal is denied, the
inmate may file a second-level appeal within 14 days of the date the first-level 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-level appeal is final and not subject to further review. Id. § 291-109-0170(f).
Here, plaintiff filed six complaints and grievances arguably related to Claim II during the
relevant two-year limitations period. See Defs.' Mot. at 7-1 I (ECF No. 28); Taylor Deel. at 4-6
& Att. 5-7, 9- I 0, 12 (ECF No. 30); see also Sain v. City ofBend, 309 F.3d 1134, 1139 (9th Cir.

2002) (two-year statute of limitations applies to § 1983 claims brought in Oregon). Plaintiff did
not proceed to a second-level appeal or exhaust the administrative process with respect to any of
these complaints or grievances.

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OPINION AND ORDER

For example, on June 17, 2014, plaintiff filed grievance SRCI.2014.05.177 and
complained that his outgoing mail had been stopped. Taylor Deel. Att. 5 at 2. On June 19, 2014,
Grievance Coordinator Taylor denied the grievance and returned it to plaintiff for corrections. Id.
Att. 5 at 1. Plaintiff did not resubmit the grievance.
On June 24, 2014, plaintiff filed grievance SRCI.2014.06.110 and again stated that
ODOC had stopped his outgoing mail. Id. Att. 6 at 4. Taylor denied the grievance and returned it
to plaintiff for corrections. Id. Att. 6 at 3. On February 12, 2015, plaintiff appealed the denial of
his grievance. Taylor denied the appeal because it was filed beyond the 14 days allowed for an
appeal. Id. Att. 6 at 1-2.
On July 1, 2014, plaintiff filed grievance SRCI.2014.07.002 and complained that he had
received $20.00 on his inmate trust account and half of the monies were directed towards his
debt. Taylor Deel. Att. 7 at 2. Taylor denied the grievance, and plaintiff did not appeal the denial
or resubmit the grievance with corrections. Id. Att. 7 at 1.
On January 4, 2016, plaintiff filed discrimination complaint SRCI.2016.01.009 and
asserted that stamps had been removed from his incoming mail. Id. Att. 9 at 2. On January 4,
2016, his complaint was denied because stamps are removed from all incoming mail. Id. Att. 9 at
1. Plaintiff did not resubmit his complaint or seek review of the denial.
On January 19, 2016, plaintiff filed discrimination complaint SRCI.2016.01.212 and
stated that a correctional officer refused to pick up plaintiffs outgoing mail because of his
mental impairments. Taylor Deel. Att. 10 at 2. Taylor denied that complaint, and plaintiff did not
resubmit the complaint or seek review its denial. Id. Att. 10 at 1.
Finally, on February 22, 2016, plaintiff filed grievance SRCI.2016.02.171 and
complained that ODOC was holding his outgoing mail. Id. Att. 12 at 2. Taylor denied the

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OPINION AND ORDER

grievance as untimely, and plaintiff did not resubmit the grievance with corrections or appeal its
denial. Id Att. 12 at I.
In sum, plaintiff did not complete the appeal process with respect to any of his grievances
or complaints about his mail and did not exhaust his administrative remedies. Further, plaintiff
fails to show that the grievance process was unavailable to him, particularly when he availed
himself of the process on numerous occasions. Accordingly, summary judgment is granted on
Claim II.
B. Eleventh Amendment Immunity
The Eleventh Amendment to the United States Constitution prohibits a plaintiff from
suing the State of Oregon or its instrumentalities in federal court, unless the State has given
unequivocal consent to be sued or Congress has abrogated that immunity. Will v. lvfich. Dep 't of
State Police, 491 U.S. 58, 66 (1989); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89,

97-100 (1984); Franceschi v. Schwartz, 57 F.3d 828, 831 (9th Cir. 1995) ("The Eleventh
Amendment bars suits which seek either damages or injunctive relief against a state, an 'arm of
the state,' its instrumentalities, or its agencies.") (per curiam). ODOC and SRCI are
instrumentalities of the State and plaintiff cannot bring suit against them in federal court.
Similarly, the Eleventh Amendment bars claims for damages against state officials sued
in their official capacities. See Will, 491 U.S. at 71 ("[A] suit against a state official in his or her
official capacity is not a suit against the official but rather is a suit against the official's office.
As such, it is no different from a suit against the State itself.") (citation omitted); Holley v. Cal.
Dep't of Corr., 599 F.3d ll 08, 1111 (9th Cir. 2010) (for immunity purposes, suits against state

officials in their official capacities are treated as suits against the state). Accordingly, plaintiffs

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OPINION AND ORDER

claims against the individual defendants in their official capacities are claims brought against the
State and are likewise barred by the Eleventh Amendment.
C. Personal Participation
Liability under § 1983 arises upon a showing of personal participation by each defendant,
and a supervisor is not liable for the constitutional violations of employees unless the supervisor
"participated in or directed the violations, or knew of the violations and failed to act to prevent
them." Taylor v. List, 880 F.2d l 040, 1045 (9th Cir. 1989). Consequently, plaintiff must allege
that each named defendant, through his or her own individual actions, violated plaintiffs
constitutional rights.
Plaintiff fails to allege any action taken by defendant Parks in violation of his
constitutional rights. Rather, plaintiff merely alleges that defendants Olive and Lande assaulted
him while in Parks' office. Accordingly, Claim I against Parks is dismissed.
CONCLUSION
Defendants' Motion for Partial Summary Judgment (ECF No. 28) is GRANTED, and the
following claims are DISMISSED: Claim II in its entirety; Claim I against ODOC, SRCI, and
defendants Lande and Olive in their official capacities; and claims against defendant Parks.
Plaintiffs sole remaining claim is Claim I against defendants Lande and Olive in their individual
capacities.
IT IS SO ORDERED.
DATED this

9-

day of August, 2017.

Ann Aiken
United States District Judge
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OPINION AND ORDER