Lovelady v. Dr. Beamer et al
OPINION & ORDER: Defendants' Motion for Partial Summary Judgment 49 is Granted, and Plaintiff's Motion for Preliminary Injunction 4 is Denied. Plaintiff's section 1983 claims against Defendants Beamer and Wettlaufer are Dismissed without prejudice. Plaintiff's section 1983 claim against Defendant Garton and Plaintiff's negligence claim against Defendant Beamer may proceed at this stage of the proceedings. Signed on 5/17/17 by Magistrate Judge Paul Papak. (gm)
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
JEREMY RAY LOVELADY,
Case No. 2:16-cv-01614-PK
OPINION AND ORDER
DR. BEAMER; MS. WETTLAUGHER; MS.
PAPAK, Magistrate Judge:
Plaintiff prose Jeremy Ray Lovelady brought this action against Dr. Leland Beamer,
Dorothy Wettlaufer', and Jaylene Garton (collectively "Defendants") alleging that he is entitled
to a declaratory judgment, injunctive relief, and damages under 42 U.S.C. § 1983 for violations
of his Eighth Amendment rights. Plaintiff also alleges that he is entitled to a declaratory
judgment that Defendant Beamer was negligent. This court has federal-question jurisdiction
over Plaintiffs section 1983 claim pursuant to 28 U.S.C. § 1331, and supplemental jurisdiction
over Plaintiffs state law tort claim pursuant to 28 U.S.C. § 1367.
Plaintiff misspelled Defendant Wettlaufer' s name in the caption of his complaint.
1 - OPINION AND ORDER
Now before the coutt is Defendants' pa1tial motion for summary judgement(# 49), and
Plaintiffs motion for preliminary injunction(# 4). I have considered the motions and all of the
briefings, papers, and pleadings on file. For the reasons discussed below, Defendants' partial
motion for sutnmary judgement is GRANTED and Plaintiffs motion for preliminary injunction
Summaiy judgment is appropriate "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." Fed. R. Civ. P.
56(a). A party taking the position that a material fact either "cannot be or is genuinely disputed"
must suppott that position either by citation to specific evidence of record "including
depositions, documents, electronically stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only), admissions, interrogatory answers, or
other materials," by showing that the evidence of record does not establish either the presence or
absence of such a dispute, or by showing that an opposing patty is unable to produce sufficient
admissible evidence to establish the presence or absence of such a dispute. Fed. R. Civ. P. 56(c).
The substantive law governing a claim or defense determines whether a fact is material. See
Morelandv. Las Vegas Metro. Police Dep't, 159 F.3d 365, 369 (9th Cir. 1998).
Summary judgment is not proper if material factual issues exist for trial. See, e.g.,
Celotex Corp. v. Catrett, 477 U.S. 318, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986); Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995), cert. denied, 116
S. Ct. 1261 (1996). In evaluating a motion for summary judgment, the district courts of the
United States must draw all reasonable inferences in favor of the nonmoving patty, and may
2 - OPINION AND ORDER
neither make credibility determinations nor perform any weighing of the evidence. See, e.g.,
Lytle v. Household Mfg., Inc., 494 U.S. 545, 554-55 (1990); Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 150 (2000).
"A preliminary injunction is an extraordinary remedy never awarded as of right." Winter
v. Nat. Res. Def Council, Inc., 555 U.S. 7, 24 (2008). A party seeking a preliminary injunction
must establish (1) that they are likely to succeed on the merits; (2) that they are likely to suffer
irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in their
favor; and (4) that an injunction is in the public interest. Id at 20; All. for the Wild Rockies v.
Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011).
Alternatively, in the Ninth Circuit, a "sliding scale" approach may be undertaken. All. for
the Wild Rockies, 632 F.3d at 1131-35 (noting that the '"serious questions' approach survives
Winter when applied as part of the four-element Winter test"). The Ninth Circuit's sliding scale
approach permits a weaker showing of success on the merits to be offset by a stronger showing
of irreparable harm where the other two elements of the Winter test are met. Id at 1131.
Specifically, "'serious questions going to the merits' and a balance of hardships that tips sharply
towards the plaintiff can support issuance of a preliminary injunction, so long as the plaintiff also
shows that there is a likelihood of irreparable injury and that the injunction is in the public
interest." Id. at 1135.
Plaintiff was a prisoner incarcerated at Eastern Oregon Correctional Institution ("EOCI")
on October 9, 2014-the date on which Plaintiff sustained the injuries giving rise to this action.
3 - OPINION AND ORDER
Plaintiff remained at EOCI until June 28, 2016, when he was transferred to Oregon State
Defendant Beamer is a doctor at EOCI and is alleged to have been in charge of Plaintiffs
medical care at the time of the events giving rise to this action.
Defendant Wettlaufer is the medical manager at EOCI. She is alleged to be in charge of
medical staff and procedures related to EOCI inmates.
Defendant Garton is EOCI's outside medical care coordinator.
The Administrative Remedy Program at EOCI
For the purposes of whether Plaintiff had access to administrative remedies, Plaintiff was
housed at EOCI at all material times. 2 At EOCI, Plaintiff had available to him a three-level
grievance procedure consistent with the regulations set fmth in Chapter 291, Division I 09 of the
Oregon Administrative Rules. Inmates are informed of the grievance process through an Inmate
Orientation Packet, through the inmate handbook, and through grievance instrnctions
accompanying grievance forms.
Pursuant to the EOCI grievance procedures and applicable Oregon Administrative Rules,
"[i]f an inmate is unable to resolve an issue through informal communications, [the] inmate may
seek resolution of the issue by submitting a written grievance using the depat1ment's approved
inmate grievance form (CD 117)." OAR-291-109-0140(1)(a). Any such grievance "must
include a complete description of the incident, action, or application of the rule being grieved,
Plaintiff was housed at EOCI from February 15, 2011 to January 6, 2016. Plaintiff was
transferred to Two Rivers Correctional Institution on January 6, 2016 and returned to EOCI on
January 8, 2016. Plaintiff remained at EOCI until June 28, 2016, when he was transferred to
Oregon State Penitentiary. As Plaintiffs injuries arose while he was housed at EOCI and all of
his grievances were filed at EOCI, the com1 need only consider whether administrative remedies
were available at EOCI.
4 - OPINION AND ORDER
including date and approximate time," and should be accompanied by any referenced documents.
OAR-291-109-0140(1)(b). Matters, actions, and incidents that an inmate may properly grieve
are the "misapplication of any administrative directive or operational procedure," the "lack of an
administrative directive or operational procedure," any "unprofessional behavior or action which
may be directed toward an inmate by an employee or volunteer of [ODOC] or the Oregon
Corrections Enterprises," any "oversight or error affecting an inmate," any "program failure as
defined in ... OAR-291-077-0020," except where such failure was caused by the inmate's
misconduct, or the "loss or destruction of[the inmate's] property .... " OAR-291-109-0140(2).
"An inmate grievance may request review of just one matter, action, or incident per inmate
grievance form." OAR-291-109-0140(l)(d). Similarly, inmates are not permitted to file more
than one grievance regarding a single incident or issue unless more than one ODOC employee is
directly involved in the incident. OAR-291-109-0140(5). In addition, inmates are not permitted
to grieve any claim or issue "that the inmate is pursuing in pending litigation in state or federal
courts." OAR-291-109-0140(3)(h). A grievance will not be processed unless it is received by
the applicable grievance coordinator on form CD 117 "within 30 calendar days of the date of the
incident giving rise to the grievance." OAR-291-109-0150(2).
Upon receipt of an inmate grievance, a grievance coordinator is required to "assign the
grievance a number, date stamp, and record its receipt in an inmate grievance log" and to "send a
grievance receipt to the inmate." OAR-291-109-0160(1) and (l)(a). The grievance coordinator
is then required to coordinate with the ODOC employee best suited to respond to the grievance,
and to send the inmate's grievance to that person "for reply." OAR-291-109-0160(1)(b). The
response must "be returned to the grievance coordinator for processing within 21 calendar days."
OAR-291-109-0160(1)(c). Following such processing, the grievance coordinator is required to
5 - OPINION AND ORDER
send the inmate copies of both the grievance and the response, and to retain copies for the
grievance coordinator's files, all within "45 days from the date the grievance was received" by
the grievance coordinator, "unless further investigation is necessary." OAR-291-109-0160(2)
and (2)(a). In the event the grievance coordinator fails to complete processing of the grievance
within 45 days of its receipt, "the grievance coordinator will make an effort to notify the inmate
of the status of the grievance." OAR-291-109-0160(2)(b). "If the inmate does not receive a
response within the allotted time frame, he/she may contact the grievance coordinator." Id.
"If at any time the grievance coordinator determines the inmate has pursued his/her
grievance through state or federal courts, the grievance process will cease and the grievance will
be returned to the inmate." OAR-291-109-0160(4). "A grievance that has been returned to [an]
inmate by the grievance coordinator for procedural reasons cannot be appealed." OAR-291-1090160(5).
An inmate may appeal the institutional response to the inmate's grievance by and through
"the grievance appeal form (CD l 17c)." OAR-291-109-0170(l)(a). Any such appeal "must be
submitted to the grievance coordinator together with the original grievance, attachments, and
staffresponse(s)." Id. The scope of the originally submitted grievance cannot be expanded on
appeal, and the inmate is not permitted to add new information regarding the grieved incident on
appeal, except where such information was unavailable to the inmate at the time the original
grievance was filed. See id. Any such appeal must be received by the grievance coordinator
"within 14 days from the date that the grievance response was sent to the inmate from the
grievance coordinator." OAR-291-109-0170(l)(b). The grievance coordinator is required to
send the appeal to the "functional unit manager," who is required to respond to the appeal
"within 30 calendar days." OAR-291-109-0170(l)(a)(B) and (l)(d). The grievance coordinator
6 - OPINION AND ORDER
is then required to send the functional unit manager's appeal response to the imnate. See OAR291-109-0170(1 )(d).
In the event an imnate wishes to appeal the functional unit manager's decision regarding a
grievance appeal, the inmate may do so "using the grievance appeal form (CD 117c)." OAR291-109-0170(2)(a). Any such appeal "must be submitted to the grievance coordinator together
with the original grievance, attachments, staff responses, and documentation related to the first
grievance appeal." Id. The grievance coordinator must generally receive any such appeal
"within 14 calendar days from the date that the first grievance appeal response was sent to the
imnate from the grievance coordinator." OAR-291-109-0l 70(2)(c). As with the first appeal,
appeal of the functional unit manager's response cannot expand the scope of the original
grievance, and cannot adduce new information regarding the originally grieved incident, except
where such information was unavailable to the inmate at the time the original grievance or first
appeal was filed. See OAR-291-109-0170(2)(a)(A). The grievance coordinator is required to
forward any such appeal to "the Assistant Director having authority to review and resolve the
The Assistant Director with such authority is required to respond to any such appeal from
a functional unit manager's grievance appeal response "within 30 calendar days." OAR-291109-0170(2)(e). "The Assistant Director's ... decision on an imnate's grievance appeal is final,
and is not subject to further [administrative] review." OAR-291-109- 0170(2)(±).
Facts Underlying the Parties' Dispute
Plaintiff alleges a number of medical problems including bulging discs in his back,
degenerative disc disease, atihritis, a nerve pinching his right testicle, and loss of function in his
7 - OPINION AND ORDER
bladder and penis. While it appears as that Plaintiff has had medical problems for some time,
Plaintiff suggests that his claims are related to events arising in October, 2014.
On October 7, 2014, Plaintiff complained of lower back pain to Dr. Timothy Kelly. Dr.
Kelly administered several Toradol injections to ease Plaintiffs pain. Plaintiff was unsatisfied.
Plaintiff stated that he may do a "man down" in order to get assistance. According to Amy
Mann, NP, a "man down" call alerts security and medical staff to an emergency medical episode
involving an inmate and prompts an immediate response. Plaintiff denies that he made these
remarks and suggests that his records have been altered.
On October 9, 2014, Plaintiff claims to have fallen head first down a flight of stairs.
When EOCI medical staff found him, Plaintiff stated that he had pain in his left cervical neck
and spasms down his left lower lumbar region. Plaintiff had no open wounds or contusions.
Plaintiff was placed in a c-collar and transported to St. Anthony Hospital for x-rays. He was
given Toradol injections for his pain and was returned to his unit.
Plaintiff continued to seek medical assistance throughout October, 2014. Dr. Kelly
reviewed Plaintiffs x-rays. They showed slight retrolisthesis and loss of disc height at levels
L3-L4 as well as degenerative disc disease at levels L5-Sl. A second x-ray showed no evidence
of instability or malaligmnent of the vertebral body. Plaintiff also reported pain radiating down
his side to his right testicle and right knee. The afflicted area was tender to touch but there was
no swelling or bruising.
In November and December 2014, Plaintiff received a lumbar spine MRI and an
abdominal CT scan. According to Plaintiffs medical file, Plaintiffs chart notes and a referral
were sent by facsimile to Kadlec Neuroscience Center for review on December 6, 2014. On
December 12, 2014, Plaintiffs abdominal CT scan was also sent to Kadlec Neuroscience. On
8 - OPINION AND ORDER
December 22, 2014, Kadlec Neuroscience records show that Kadlec Neuroscience staff
presented Plaintiffs file to Dr. Matthew Fewel for a scheduling recommendation. Prison staff
contacted Kadlec Neuroscience on December 31, 2014, to check on Plaintiffs refe1rnl. Kadlec
Neuroscience informed prison staff that they were waiting on Dr. Fewel to return from time off.
On January 4, 2015, Kadlec records show that Dr. Fewel reviewed Plaintiffs records and
recommended that Plaintiff see Dr. Baldwin. Dr. Fewel did not believe Plaintiff to be a surgical
candidate. Plaintiff was scheduled for Dr. Baldwin's earliest available appointment.
On January 5, 2015, Plaintiff complained of back pain and pain radiating down his leg.
Plaintiff was given a Toradol iajection and prescribed additional injections. However, he
complained to prison staff that: "Toradol doesn't do shit for me. Maybe I'll fall out on the unit.
What am I, a piece of shit? I'll just file another lawsuit."
On February 4, 2015, Plaintiff was seen at Kadlec Neuroscience to address his lower
back pain. Lisa Miller, ARNP, found that Plaintiff had significant tenderness over his right
sacroiliac joint and found that his pain was consistent with sacroilitis. Plaintiff was given a right
sacroiliac joint steroid injection. Plaintiff was given an additional right sacroiliac joint steroid
injection on February 27, 2015.
On March 6, 2015, Plaintiff received a cervical spine MRI at St. Anthony Hospital.
Plaintiff was diagnosed with degenerative disc disease and spondylosis at C3-C4. According to
Ms. Mann's declaration, "[d]egenerative disc disease ... commonly develops over the course of
human aging and results from the effects of natural daily stresses and minor injuries." "While
surgical options are available in serious cases, [Plaintiff] has not been evaluated to be a surgical
candidate following his October 2014 fall." Plaintiff urged prison officials to send his MRI to
9 - OPINION AND ORDER
Kadlec Neuroscience on March 13, 2015 and March 27, 2015. Plaintiff was allegedly informed
that his provider must issue an order to have his MRI forwarded to Kadlec Neuroscience.
Plaintiff filed two grievances at the end of March, 2015 that the court will address. 3 On
March 25, 2015, EOCI received Grievance No. EOCI.2015.03.049 from Plaintiff, grieving
inadequate medical care as follows:
I've been having serious pain in my spine for about 5 years now. I tumbled down
the stairs on 10/9/14 from my back going out on me. I have been telling medical
since this happen[ed] that I'm suffering [immensely]. I have not received pain
medication for this and I received an MRI on 3-6-15 and it showed a
[c]ompromise of the neural foramina [at] C3-6 which clearly is causing a lot of
pain. I've tried to be [patient], but past experiences have showed me that the
doctors here do not have my best [interests]. Dr. Beamer can explain that one!
Plaintiff sought pain medication and further treatment for his condition. EOCI construed this
grievance as addressing Defendant Wettlaufer' s actions.
On March 30, 2015, EOCI received Grievance No. EOCI.2015.03.050 from Plaintiff,
grieving inadequate medical care as follows:
I put in for sick call and I didn't get a call out for a week later I had to remind
them, and I'd like it to be known that Dr. Kelly I feel is messing with me. I got an
MRI and have asked several times if it has been sent to Kadlec Neuro Science but
Dr. Kell[y] will not put an order for them to look at it. I'm letting it be known I
plan to [flile a lawsuit against Dr. Kelly after grievance procedure is complete for
un[n]eeded pain [and] suffer[ing] and for medical indifference on a known
Plaintiff sought medical treatment addressing his issues. EOCI construed this grievance as
addressing Defendant Wettlaufer' s actions.
ODOC physician's orders dated March 31, 2015 state "send cervical MRI report to
Defendants note in their partial motion for summary judgment that Plaintiff filed an additional
grievance on March 30, 2015-grievance number EOCI.2015.03.052. As neither patty has
submitted this grievance in full to the court and Plaintiff did not appeal this grievance, the court
will not and need not address it.
10- OPINION AND ORDER
Each of the aforementioned grievances were addressed on April 6, 2015. Defendant
Wettlaufer replied to Grievance No. EOCI.2015.03.049 through a grievance response. The
grievance response noted that Plaintiff was sent to Kadlec Neuroscience on February 4, 2015. At
Kadlec Neuroscience, Plaintiff was given steroid injections for his back and prescribed NSAIDS
for his pain. Prison staff were "waiting for Kadlec Neuroscience to review [Plaintiff's] MRI and
make recommendations." Plaintiff's treatment plan would be based on those recommendations.
The record does not show that Plaintiff appealed this response.
EOCI Grievance Coordinator Nina Sobotta returned Grievance No. EOCI.2015.03.050
due to non-compliance with the applicable grievance rules. Ms. Sobotta found that Plaintiff's
grievance failed to "include a complete description of the incident, action, or application of rule,
including date, approximate time and what action requested to resolve [the] grievance." The
record does not show that Plaintiff resubmited this grievance or otherwise appealed Ms.
On April 21, 2015 Plaintiff repo1ted to sick call to ask whether his MRI results had been
sent to Kadlec Neuroscience. Plaintiff was advised that a phone call was made but Defendant
Garton had not heard back from Kadlec Neuroscience.
A "late entry" in ODOC progress notes dated May 7, 2015 states that Defendant Garton
received a phone call from Kadlec Neuroscience on May 5, 2015 regarding Plaintiff's "C-Spine
MRI." At that time, "Dr. Baldwin only recommend[ed] physical therapy .... " Defendant
Garton allegedly spoke to Dr. Kelly regarding the phone call, who wrote an order for physical
Plaintiff's medical issues continued for several months. On May 6, 2015, Plaintiff
complained that he felt a pinching in his head, that he was seeing stars, and that he had a blown
11 - OPINION AND ORDER
disk. Plaintiff received a Toradol injection but complained that Toradol was not addressing his
pain. On June 5, 2015, Plaintiff complained of extreme pain and pressure in his neck. Plaintiff
was seen the next day, receiving Norco for pain. On June 9, 2015, Plaintiff reported that he had
thrown away his soft c-collar neck brace that was prescribed in March, 2015. On July 30, 2015,
Plaintiff was seen for his neck, back, and testicular pain. The provider submitted a request for
Plaintiff to be reevaluated for an epidural steroid injection.
On August 6, 2015, Plaintiff sent a kyte to Defendant Beamer stating that he thought he
was being ignored. He complained that Elavil was giving him bad side effects but ifhe did not
take it, his "pain scale [was] through the roof." Plaintiff's medication was switched on August
11, 2014 but his side effects persisted. On August 14, 2015, Plaintiff sent a kyte to Defendant
Beamer complaining that his new medication was "making [him] sick and they are causing black
out periods where [he was] not remembering things." He worried that his brain was being
damaged by his medical treatment and was concerned that prison staff had ulterior motives.
According to a document that Plaintiff claims reflects "Kadlec's refenal notes," Kadlec
received Plaintiff's chatt notes on September 11, 2015. These internal notes state that they
"[r]eceived updated referral chatt notes for Pt to followup on care." "OK to schedule FU with
Baldwin/Lisa." Plaintiff claims that his referral notes included the MRI results from his March
6, 2015 MRI. Prior to the September 11, 2015, entry, the only other entries in the document
provided by Plaintiff are entries in January, 2015-entries prior to his March 6, 2015 MRI.
On September 29, 2015, Defendant Garton's notes state that Plaintiff was scheduled for
reevaluation with Dr. Baldwin at Kadlec Neuroscience.
Plaintiff saw Lisa Miller, ARNP, at Kadlec Neuroscience on October 15, 2015. Ms.
Miller reviewed Plaintiffs MRI, noting that it displayed "cervical spondylosis with degenerative
12- OPINION AND ORDER
disc disease at C3-4 resulting in mild foraminal nanowing." Ms. Miller recommended a C7-T 1
cervical epidural steroid injection under fluoroscopic guidance. If there was no improvement,
then she would consider diagnostic median branch blocks.
Defendant Beamer saw Plaintiff on October 27, 2015. Plaintiff complained of neck pain
and lower back pain. He was having difficulty sleeping. His neck brace was not helpful.
Defendant Beamer concluded that Plaintiffs subjective complaints did not match Defendant
Beamer's objective findings.
On October 29, 2015, EOCI received two grievances filed by Plaintiff. Plaintiff filed
Grievance No. EOCI.2015.10.078 grieving inadequate medical care as follows:
Per 291-109-0100, Inmate has [gone] above and beyond to resolve this issue ...
On 10/27115 Inmate Lovelady had doctors apt and Dr. Beamer told me he will put
in for pain medica[tion] but he never did. Dr. Beamer told me I was delusional
about my MRI findings and he said he's going to call all outside providers to put a
stop to my procedures because he feels I do not need them? I told him I didn't
discuss my T.X. so that he can sabotage my medical T.X ..
Plaintiff wanted Defendant Beamer to "pay the consequences for his actions ... [as] this
[wa]sn't the first time." EOCI construed this grievance as addressing Defendant Beamer's
That same day, Plaintiff filed Grievance No. EOCI.2015.10.086. Plaintiff grieved as
Per Rule # 291-109-0100, Inmate has [t]ried everything possible to seek help
through com[m]unication kytes ... On 9-30-15 I received my medical records
from Kadlec Neuro Science and my cervical MRI was never sent by Ms. Garton
even after several [a]!tempts to send com[m]unication kyles ... It was only sent
right before a visit ordered by Ms. Wettlau[fer] as updated referral chart notes? on
In a document attached to this grievance, Plaintiff noted that Ms. Garton stated that she spoke
with someone at Kadlec Neuroscience on May 7, 2015 regarding Plaintiffs MRI. Yet, Kadlec
13 - OPINION AND ORDER
Neuroscience records indicated that they did not receive Plaintiffs MRI until September 11,
2015. Plaintiff alleged that "Ms. Garton was told by Mr. Beamer to not send in [his] MRI .... "
Plaintiff wanted "people" to be held accountable for neglecting his medical needs. EOCI
construed this grievance as addressing Defendant Gation's actions.
EOCI' s Therapeutic Level of Care ("TLC") Committee approved Plaintiffs cervical
epidural steroid injection on October 27, 2015, and Plaintiff received the injection at Kadlec
Neuroscience on November 30, 2015.
Defendant Wettlaufer responded to Grievance No. EOCI.2015.10.078 on November 17,
2015. The record does not show that Plaintiff appealed this response.
Defendant Wettlaufer responded to Grievance No. EOCI.2015.10.086 on November 20,
2015. Defendant Wettlaufer stated, "I understand that you feel your MRI was sent to Kadlec
late." She apologized for the delay and opined that it was "possible that [the MRI] was sent and
lost.'' Plaintiff subsequently filed a grievance appeal, arguing that Defendant Garton was
deliberately indifferent to his medical needs and that Defendant Garton falsely stated in
Plaintiffs medical records that she learned of Kadlec Neuroscience's assessment of Plaintiffs
MRI results on May 7, 2015.
S. Shelton, M.D., DOC's medical director, responded to Plaintiffs appeal on January 6,
2016. Dr. Shelton stated that "[n]o one ha[d] lied in [Plaintiffs] health care record." He
apologized if Plaintiffs "Magnetic Resonance Imaging was sent to Kadlec Neuroscience
center late." Plaintiff filed a second grievance appeal, again arguing that Defendant Gation
falsely stated that she spoke with someone at Kadlec Neuroscience. Grievance Coordinator Nina
Sobotta's declaration states that Plaintiff completed the grievance review process for Grievance
14- OPINION AND ORDER
Plaintiffs pain complaints continued. On Februaty 2, 2016, Plaintiff sought medical
attention for low back and hip pain. Plaintiff was prescribed Neurontin 400mg and he was
encouraged to stretch the area. On Febrnary 10, 2016, Plaintiff sent a kyte to Defendant Beamer.
Plaintiff stated, "My hip is killing me!" His pain had "gotten extremely worse since [he was] last
seen." On Febrnary 18, 2016, Plaintiff reported severe pain rated 10 out of 10 to his right hip,
right side, and his right testicle. Plaintiff was given a Toradol 50mg injection. On April 26,
2016, Plaintiff saw Defendant Beamer for a follow-up. Defendant Beamer requested that the
TLC Committee evaluate whether a second lumbar epidural steroid injection was medically
justified. The TLC Committee denied this request.
Plaintiff was transfened to Oregon State Penitentiary ("OSP") on June 28, 2016.
According to Defendants, 24-hour nursing care is available at OSP.
Since transfening to OSP, Plaintiff has been in Ms. Mann's care. On August 10, 2016,
Plaintiff was examined by Ms. Mann. Plaintiff repotted sharp pains in his left buttock, radiating
down to the outside of his thigh, knee, and ankle. Plaintiff also reported right testicle pain.
While Plaintiff exhibited normal posture and a normal gait, he presented positive findings during
the Faber test. Ms. Mann recommended stretches and over-the-counter pain medication. On
August 31, 2016, Ms. Mann determined that Plaintiff showed no signs of neurological symptoms
and that Plaintiffs Neurontin prescription was no longer appropriate. On October 12, 2016, Ms.
Mann prescribed a trial regimen of Etodolac (Lodine) to treat Plaintiffs pain and reduce
According to Ms. Mann, Plaintiff has stopped taking Etodolac as of December 2, 2016
due to a possible allergic reaction. Plaintiff has also received Toradol injections.
This action was filed on August 9, 2016.
15 - OPINION AND ORDER
under such administrative grievance procedures. See id at 524, citing Booth v. Churner, 532
U.S. 731, 739, 740 n.5, 741 (2001).
Inmates are not required to plead or demonstrate exhaustion before bringing prisonconditions lawsuits. Jones v. Bock, 549 U.S. 199, 216 (2007). To the contrary, an incarcerated
plaintiff's failure to satisfy the PLRA exhaustion requirement is an affirmative defense that is the
burden of the defendant in a prison-conditions lawsuit to raise and prove. See id Following the
Ninth Circuit's en bane decision in Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014), the courts of
the Ninth Circuit treat challenges to a prisoner's exhaustion of administrative remedies as
motions for sumrnaty judgment if premised on proffered evidence, and as motions to dismiss for
failure to state a claim if premised on the incarcerated plaintiff's pleading alone. See Albino, 747
F.3d at 1166. Here, Defendants have properly brought their evidence-based challenge to
Plaintiff's exhaustion of administrative remedies as a motion for summary judgment.
"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." Id However, "[i]f
material facts are disputed, summary judgment should be denied, and [following such denial] the
district judge rather than a jury should determine the facts." Id The Albino coutt found that the
defendant must first prove that there was an available administrative remedy and that the inmate
did not exhaust that available remedy. Albino, 747 F.3d at 1172. Coutts will look to the
applicable regulations explaining the scope of the administrative review process, testimonial
evidence from prison officials who administer the process, and whether prisoners were apprised
of the grievance system. Albino, 747 F.3d at 1175 (looking to whether prisoners were aware of
the grievance system); Brown v. Va/off, 422 F.3d 926, 937 (2005). If the defendant carries their
initial burden, "the burden shifts to the prisoner to come forward with evidence showing that
17 - OPINION AND ORDER
there is something in [his] patticular case that made the existing and generally available remedies
effectively unavailable to [him]." Id. However, the ultimate burden of proof remains with the
defendant. Albino, 747 F.3d at 1172.
For purposes of the PLRA, "complete exhaustion" of available administrative remedies
requires that an inmate "complete the administrative review process in accordance with [all]
applicable procedural rules, including deadlines .... " Marella v. Terhune, 568 F.3d 1024, 1027
(9th Cir. 2009), quoting Woodford v. Ngo, 548 U.S. 81, 88 (2006). Indeed, as the Supreme Court
established in Woodford, "proper exhaustion of administrative remedies ... 'means using all
steps that the agency holds out, and doing so properly (so that the agency addresses the issues on
the merits)."' Woodford, 548 U.S. at 90 (emphasis original), quoting Pozo v. McCaught1y, 286
F.3d 1022, 1024 (7th Cir. 2002). The Woodford comt reasoned that to hold otherwise would
permit prisoners to render the PLRA exhaustion requirement "wholly ineffective" by defaulting
in the performance of administrative requirements and then claiming exhaustion by virtue of
such procedural default. Id. at 95. Under Woodford, only proper exhaustion of administrative
requirements, including compliance with deadlines and performance of all procedural requisites,
is sufficient to satisfy the requirements of the PLRA. See id. at 90-91 ("Proper exhaustion
demands compliance with an agency's deadlines and other critical procedural rules .... ").
Here, Defendants have met their initial burden of establishing that there was an available
administrative remedy. EOCI Grievance Coordinator Nina Sobotta's declaration establishes that
EOCI has an administrative review process in place and that inmates are apprised of the
administrative review process through an Inmate Orientation Packet, through the inmate
handbook, and through grievance instructions accompanying grievance forms.
18 - OPINION AND ORDER
Defendants have also established that Plaintiff failed to pursue all remedies available to
him at EOCI in connection with three of the four grievances at issue. Plaintiff did not appeal or
otherwise resubmit Grievance Nos. EOCI.2015.03.049, EOCI.2015.03.050, and
EOCI.2015.10.078-grievances against Defendants Wettlaufer and Beamer. Plaintiff has not
come forward with evidence establishing that the administrative review process was effectively
unavailable to him. As such, the court lacks discretion to consider the merits of any claim
arising out of these grievances.
On the other hand, Plaintiff pursued all remedies available to him at EOCI in connection
with Grievance No. EOCI.2015.10.086-a grievance against Defendant Garton. Defendants
admit that Plaintiff appealed Grievance No. EOCI.2015. l 0.086 twice, completing the grievance
review process with respect to this grievance. Broadly construed, Grievance No.
EOCI.2015.10.086 alleges that Defendant Garton falsified Plaintiff's medical records, preventing
Plaintiff from receiving adequate medical care. While the attachment to this grievance also
mentions Defendant Beamer, inmates must file a separate grievance for each grieved individual. 4
In short, drawing all reasonable inferences in favor of the nonmoving party and placing
the ultimate burden of proof with the Defendants, this court lacks discretion to consider the
merits of Plaintiff's federal claims against Defendants Beamer and Wettlaufer under the PLRA. 5
Because Plaintiff has exhausted his section 1983 claim against Defendant Garton, Plaintiff's
section 1983 claim against Defendant Garton may proceed.
The court finds that Grievance No. EOCI.2015.10.086 is properly construed as a grievance
against Defendant Garton given that another grievance was filed against Defendant Beamer on
the same day as Grievance No. EOCI.2015.10.086, addressing the same facts as Grievance No.
The court would also note that Plaintiff agreed to dismiss his claim against Defendant
Wettlaufer in Plaintiff's response to Defendant's partial motion for summary judgment.
19 - OPINION AND ORDER
Plaintiffs motion for preliminary injunction fails as Plaintiff is not likely to suffer
irreparable harm in the absence of preliminary relief. Plaintiff seeks a preliminaty injunction
against Defendants Garton and Beamer to ensure that Plaintiff is adequately treated for his
alleged symptoms. Defendant Garton is EOCI' s outside medical care coordinator and Defendant
Beamer is an EOCI doctor. However, Plaintiff is no longer housed at EOCI. Plaintiff was
transferred to OSP on June 28, 2016, a facility with 24-hour nursing capabilities. Plaintiff is
under Ms. Mann's care at OSP. Issuing a preliminary injunction against Defendant Beamer or
Defendant Garton would have no effect on Plaintiffs allegedly inadequate medical care. See
Easter v. CDC, 694 F. Supp. 2d 1177, 1189-90 (S.D. Cal. 2010) (finding that the plaintiff would
not suffer itTeparable harm in the absence of preliminary relief where the plaintiff was no longer
housed at the location where the defendants were employed).
While Plaintiffs motion for preliminary injunction also seeks a preliminary injunction
against "the appropriate medical officials" upon his transfer to OSP, these officials are not
parties to this action and have not submitted to the jurisdiction of this court. The court does not
have jurisdiction to issue an injunction directing parties not before the court to take action.
Zepeda v. United States Immigration & Naturalization Servs., 753 F.2d 719, 727 (9th Cir. 1985)
("A federal comt may issue an injunction if it has personal jurisdiction over the parties and
subject matter jurisdiction over the claim; it may not attempt to detetmine the rights of persons
not before the court."); see also Randolph v. Nix, No. 1:12-cv-00392-LJO-MJS (PC), 2015 WL
2081091, at *2 (E.D. Cal. May 4, 2015) (finding that an inmate's motion for a preliminary
injunction failed where it "require[ d] directing parties not before the Court to take action"), 2015
20 - OPINION AND ORDER
WL 4112129 (July 8, 2015) (adopting F&R). Plaintiffs motion for preliminmy injunction is
For the reasons stated above, Defendants' partial motion for summa1y judgment(# 49) is
GRANTED, and Plaintiffs motion for preliminary injunction(# 4) is DENIED. Plaintiffs
section 1983 claims against Defendants Beamer and Wettlaufer are dismissed without prejudice.
Plaintiffs section 1983 claim against Defendant Garton and Plaintiffs negligence claim against
Defendant Beamer may proceed at this stage of the proceedings.
Dated this 17th day of May, 2017.
onorable Paul Papak
United States Magistrate Judge
21 - OPINION AND ORDER
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