Oien v. Department of Corrections et al

Filing 40

OPINION AND ORDER: Defendants' motion for summary judgment 18 is granted. (See 15 page opinion for more information) Signed on 1/19/18 by Judge Marco A. Hernandez. (Mailed copy to plaintiff) (dsg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
IOAN PAUL OIEN,

No. 2:17-cv-00978-HZ
Plaintiff,

v.
STATE OF OREGON; DEPARTMENT OF
CORRECTIONS; TWO RIVERS
CORRECTIONAL INSTITUTION;
CORPORAL DAVIS,
Defendants.

Ioan Paul Oien
SID #20316441
8291 Beach Access Road
Umatilla, Oregon 97882
Plaintiff Pro Se
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1 - OPINION & ORDER

OPINION & ORDER

Ellen F. Rosenblum
ATTORNEY GENERAL
Shannon M. Vincent
SENIOR ASSISTANT ATTORNEY GENERAL
Department of Justice
1162 Court Street NE
Salem, Oregon 97301-4096
Attorneys for Defendants
HERNANDEZ, District Judge:
Plaintiff Ioan Paul Oien, an inmate at the Two Rivers Correctional Institution (TRCI),
brings this action against the State of Oregon, the State's Department of Corrections, TRCI, and
Corporal Davis, contending that Davis sexually assaulted Plaintiff during an unclothed strip
search and that Plaintiff has been retaliated against for filing this lawsuit. Defendants move for
summary judgment on the basis that Plaintiff has failed to exhaust his administrative remedies
and that all Defendants except for Davis are not proper Defendants in this action. Because I
agree with Defendants on both issues, I grant Defendants' motion.
BACKGROUND
Plaintiff entered the custody of the Oregon Department of Corrections (ODOC) on
February 16, 2017, moving to TRCI on March 15, 2017. Arnell Eynon Decl. ¶¶ 4, 19, ECF 19.
In his Amended Complaint, Plaintiff contends that on April 20, 2017, after a visit at TRCI from
his grandmother Cathy Nelson, Davis strip searched him inside the bathroom for no reason and
while doing so and after putting on latex gloves, stuck his finger in Plaintiff's "bottom." Am.
Compl. ¶ 6. Plaintiff alleges that he contacted Behavioral Health Services, but they did not help
him. Id. He asked to talk to a counselor and as of the filing of the Amended Complaint on
August 28, 2017, "it has still not happened." Id. Plaintiff alleges he was told, however, that
2 - OPINION & ORDER

Davis was going to get terminated from his job because of his unprofessional conduct and that
the officers in charge would insure that Davis stayed away from Plaintiff. Id. Despite this
assurance, Plaintiff alleges that Davis did not get terminated and still works at TRCI as a
corrections officer. Id.
Plaintiff contends that although he was told a detective would talk to him "right away," it
took five months for that to occur. Id. Then, Plaintiff asserts, when the detective came, he
treated Plaintiff "very badly," threatened him, and told the officers in charge to retaliate against
him. Id. According to Plaintiff, he has been retaliated against and threatened. Id. In one alleged
incident, officers placed him back in his cell with a cellmate after the cellmate assaulted him and
in contravention of his need for a single cell. Id. Moreover, "TRCI" moved Plaintiff to a
different unit for no reason in retaliation for filing the lawsuit. Id. As a result of the move, he
lost his prison job. Id.
Other than these allegations in his Amended Complaint, Plaintiff submits a Declaration in
which he states that Davis performed an unclothed search on Plaintiff on August 20, 20171 and
"stuck his finger up inside my bottom." Pl.'s Decl. ¶ 8, ECF 25. The Declaration does not
address any of the alleged retaliation facts.
Based on his allegations, Plaintiff contends that Davis violated his Eighth Amendment
rights and that "Defendants, TRCI, Corporal Davis, and DOC" have retaliated against him in
violation of his First Amendment rights. Am. Compl. ¶¶ 8, 10. He seeks declaratory and
injunctive relief as well as noneconmic and punitive damages. Id.

1

It is unlikely the incident occurred on this date as Plaintiff's original Complaint was filed on
June 21, 2017, before August 20, 2017.
3 - OPINION & ORDER

STANDARDS
Summary judgment is appropriate if there is no genuine dispute as to any material fact
and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The
moving party bears the initial responsibility of informing the court of the basis of its motion, and
identifying those portions of "'the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence
of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting
former Fed. R. Civ. P. 56(c)).
Once the moving party meets its initial burden of demonstrating the absence of a genuine
issue of material fact, the burden then shifts to the nonmoving party to present "specific facts"
showing a "genuine issue for trial." Fed. Trade Comm'n v. Stefanchik, 559 F.3d 924, 927-28 (9th
Cir. 2009) (internal quotation marks omitted). The nonmoving party must go beyond the
pleadings and designate facts showing an issue for trial. Bias v. Moynihan, 508 F.3d 1212, 1218
(9th Cir. 2007) (citing Celotex, 477 U.S. at 324).
The substantive law governing a claim determines whether a fact is material. Suever v.
Connell, 579 F.3d 1047, 1056 (9th Cir. 2009). The court draws inferences from the facts in the
light most favorable to the nonmoving party. Earl v. Nielsen Media Research, Inc., 658 F.3d
1108, 1112 (9th Cir. 2011).
If the factual context makes the nonmoving party's claim as to the existence of a material
issue of fact implausible, that party must come forward with more persuasive evidence to support
his claim than would otherwise be necessary. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986).
4 - OPINION & ORDER

DISCUSSION
Defendants argue that they are entitled to summary judgment because Plaintiff has not
exhausted his administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C.
§ 1997e(a) (PLRA). Additionally, Defendants argue that the State of Oregon, the ODOC, and
TRCI are improper Defendants because they are entitled to Eleventh Amendment immunity and
are not "persons" subject to a claim brought under 42 U.S.C. § 1983. Plaintiff does not contest
the arguments made as to the State of Oregon, the ODOC, and TRCI. Plaintiff contends,
however, that he reported the sexual assault to the Prison Rape Elimination Act (PREA) Hotline
and that because appeals were either unnecessary or would have been futile, he has satisfied the
exhaustion requirement.
I. Proper Defendants
The Eleventh Amendment bars a citizen from bringing suit against his own state, or state
agency or department, in federal court. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S.
89, 100 (1984); Micomonaco v. State of Wash., 45 F.3d 316, 319 (9th Cir. 1995). Although there
are exceptions, the Supreme Court has made clear that Congress did not abrogate the states'
Eleventh Amendment immunity by enacting section 1983. Quern v. Jordan, 440 U.S. 332, 341
(1979). In addition, the State of Oregon has not consented to be sued or done anything to waive
its immunity in this action. See Edelman v. Jordan, 415 U.S. 651, 673 (1974) ("[W]e will find
waiver only where stated by the most express language or by such overwhelming implications
from the text as [will] leave no room for any other reasonable construction.") (internal quotation
marks omitted). The law is clear that the Eleventh Amendment bars Plaintiff's claims against the
State of Oregon, the ODOC, and TRCI in this Court because Oregon has not consented to be
5 - OPINION & ORDER

sued here for § 1983 claims.
Additionally, § 1983 allows suits against state and local officials who have violated
federal law but does not allow claims against states or state agencies. Will v. Mich. Dep't of State
Police, 491 U.S. 58, 71 (1989) (holding that "neither a State nor its officials acting in their
official capacities are 'persons' under § 1983"); Maldonado v. Harris, 370 F.3d 945, 951 (9th Cir.
2004) ("State agencies . . . are not 'persons' within the meaning of § 1983, and are therefore not
amenable to suit under that statute") (citing Will, 491 U.S. at 70).
Because Davis is the only properly named Defendant, I grant Defendants' motion for
summary judgment as to all other Defendants.
II. Exhaustion
A. PLRA Standards
Exhaustion under the PLRA is mandatory. McKinney v. Carey, 311 F.3d 1198, 1199 (9th
Cir. 2002) (citing Booth v. Churner, 532 U.S. 731, 741 (2001)). Under the PLRA, "[n]o action
shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal
law, by a prisoner confined in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). Exhaustion is
mandatory, however, only as long as "administrative remedies . . . are available." Ross v. Blake,
136 S. Ct. 1850, 1862 (2016). "To be available, a remedy must be available as a practical matter;
it must be capable of use; at hand." Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014) (en
banc) (internal quotation marks omitted).
Exhaustion is an affirmative defense "that must be pled and proved by a defendant." Id.
at 1168. The defendant has the burden to prove that "there was an available administrative
6 - OPINION & ORDER

remedy, and that the prisoner did not exhaust that available remedy." Id. at 1172. Once a
defendant has made such a showing, the burden shifts to the plaintiff to "come forward with
evidence showing that there is something in his particular case that made the existing and
generally available administrative remedies effectively unavailable to him." Id. Although the
burden of proof remains with the defendant, the defendant is entitled to summary judgment if
undisputed evidence viewed in the light most favorable to the prisoner shows a failure to exhaust.
Id. at 1166, 1172.
B. Discussion
In support of its motion, Defendants explain that under ODOC regulations, grievances are
processed under ODOC Administrative Rules (O.A.R.), Chapter 291, Division 109. See
generally Eynon Decl., Ex. 2. Under OAR 291-109-0149(1)(a), if 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 department's inmate grievance form. Inmates may
grieve, among other things, inappropriate sexual contact between an ODOC employee and an
inmate. O.A.R. 291-109-0140(2)(a), (g). While there is ordinarily a thirty-day time limit to file a
grievance, there is no time limit for submitting a grievance alleging sexual abuse. O.A.R. 291109-0150, O.A.R. 291-109-0175(4). The grievance must contain "a complete description of the
incident, action, or application of the rule being grieved, including date and approximate time."
O.A.R. 291-109-0140(1)(b).
If the initial grievance does not resolve the issue, the inmate may appeal any grievance
response to the functional unit manager. O.A.R. 291-109-0170(1)(b). The inmate must complete
a grievance appeal form and file it with the grievance coordinator within fourteen days from the
7 - OPINION & ORDER

date that the grievance coordinator mailed the grievance response to the inmate. Id. If still
unsatisfied, the inmate may appeal the functional unit manager's decision by completing a
grievance appeal form and filing it with the grievance coordinator within fourteen days of the
date that the grievance coordinator sent the first grievance appeal response to the inmate. O.A.R.
291-109-0170(2)(c). The Assistant Director's or designee's decision on an inmate's grievance
appeal is final and is not subject to further review. O.A.R. 291-109-0170(2)(f).
Although Plaintiff filed several grievances on a variety of issues between March 15,
2017, and August 28, 2017, he filed no grievances expressly directed to the alleged sexual assault
by Davis. Eynon Decl. ¶¶ 20-33 & Exs. 4-17. On May 22, 2017, Plaintiff did file a grievance
complaining that he had been "sexually assaulted here in DOC countless times and [had] asked to
be in a single cell so it doesn't happen again." Id. ¶ 26 & Ex. 10. He complained that despite
talking to officers about the problem, he kept being placed in "situations where I get sexually
assaulted by inmates." Id., Ex. 10. He did not mention a particular incident or Davis. Id. On
June 1, 2017, this grievance was returned to Plaintiff for correction. Id. Specifically, he was
asked to clearly state what single incident he was grieving and what staff member he told. Id.
There is no evidence in the record showing that he re-filed the grievance.
Additionally, there are two discrimination complaints in July 2017 in which Plaintiff
contended that Officer Herrara threatened him because of a lawsuit Plaintiff filed against him and
because of a complaint Plaintiff had made against him. Id. ¶¶ 32, 33 & Exs. 16, 17. Herrara is
not a Defendant in this action. Both of these complaints were returned to Plaintiff because they
lacked specific enough information regarding the threatening comments or to support a
complaint of discrimination. Id. The record does not indicate that Plaintiff took any further
8 - OPINION & ORDER

action on these complaints.
Based on this evidence, Defendants argue that Plaintiff failed to exhaust his
administrative remedies for the claims in this case before filing his Complaint on June 21, 2017.
Accordingly, Defendants argue that summary judgment for Defendants is warranted.
In response, Plaintiff states in his Declaration that he exhausted his administrative
remedies because he called the PREA Hotline "and allowed that process to work." Pl.'s Decl. ¶
2. He states that he was then "called down to the Captain[']s office and spoke to Captain Iverson
who had informed me that Corporal Davis was being investigated." Id. ¶ 3. He contends that at
that point, there was no need to invoke the ODOC grievance procedure and file a grievance under
O.A.R. 291-109-0140(1)(b), because "informal communications" and "PREA Policy" were
resolving the matter. Id. ¶ 4. Next, he was "then called down" to the office of the "Officer in
Charge" and was told by Captain Iverson "that Corporal Davis was removed from the premises of
the Institution and no longer worked for the Oregon Dept. of Corr." Id. ¶ 5. He contends that at
this point, the administrative process "had worked" and he had completely exhausted his
available remedies. Id. ¶ 6. He asserts that the requirements of the PLRA had been met by this
process and the issue was ripe for a § 1983 claim. Id. Because thereafter he sought only
monetary relief which is not allowable through the grievance system, it would have been futile
for him to continue to file a grievance at that point. Id. ¶ 7 (alleging it "would have been fatile
[sic] to even attempt what is already barred from attempting").
In his Response Memorandum, Plaintiff argues that Davis's being removed from "DOC
property" and his ODOC employment being terminated "ended and satisfied the informal
administrative process" because the "firing of Corporal Davis resolved the issue[.]" Pl.'s Resp. 1,
9 - OPINION & ORDER

ECF 24. He contends that because monetary damages are not an available remedy through the
grievance system, it would be futile to require Plaintiff to proceed on the issue administratively.
Defendants acknowledge that if Plaintiff's contentions about reporting Davis to the PREA
Hotline and Davis's termination were true, Plaintiff might be excused from grieving his claims.
But, Defendants argue, Plaintiff's contentions are demonstrably false. He never reported his
allegations regarding Davis to the PREA Hotline and Davis has not been terminated, or even
reprimanded in connection with this case. In fact, he presently works at TRCI.
Defendants note that Plaintiff's contentions are short on specifics. He does not include
the date or dates he made the PREA Hotline call or the dates he allegedly met with Iverson. He
also provides an August 20, 2017 date of the incident which conflicts with the April 20, 2017
date alleged in his Amended Complaint. In contrast to Plaintiff's allegations, Defendants note
that all phone calls made to the PREA Hotline number are recorded. Ericka Sage Decl. ¶ 10.
Before filing this lawsuit, Plaintiff made only two PREA Hotline calls. Id. ¶ 11. Both occurred
on May 29, 2017, one at 10:02 and the other at 10:11. Id.; see also Ex. 6 (audio file list showing
date and time of Plaintiff's calls to PREA Hotline). Both of the calls related to issues Plaintiff
had with a fellow inmate. Id. ¶ 12; see also Ex. 7 (sealed exhibit containing transcript of call),
ECF 34.
Plaintiff did, however, file a Tort Claim Notice with the Oregon Department of
Administrative Services dated June 9, 2017, before he filed this lawsuit. Id. ¶ 13; Ex. 8. There,
he contended that in May of 20172, he was visited by a family member and after she left, Davis
instructed Plaintiff to follow Davis to the bathroom. Id., Ex. 8 at 1. Plaintiff alleged that Davis
2

This is yet a third different date for this alleged incident.

10 - OPINION & ORDER

told him to take his clothes off and Plaintiff feared he was going to be raped. Id. He felt that
Davis was "checking out my naked body and trying to touch me." Id. He made no specific
allegation that Davis penetrated his "bottom." Id. He made general allegations that he had been
sexually assaulted at TRCI "countless times," that he had been sexually abused by unnamed DOC
staff and inmates, and that he had told captains and lieutenants of this information but they had
only put him back in situations where he is raped or abused. Id. at 2. He concluded by saying
that he had been sexually assaulted many times and these incidents have occurred in the unit,
visiting area, bathroom, kitchen, and his cell. Id.
When the Tort Claim Notice was received, ODOC opened a PREA Watch Incident
Report and referred the matter to the Oregon State Police (OSP) for investigation, in accordance
with ODOC policies. See Sage Decl. ¶¶ 6, 7 & Exs. 3 & 4. The Report was opened on July 19,
2017. Id. ¶ 14; see also Ex. 9 (sealed exhibit containing copy of PREA Watch Incident Report),
ECF 35. Additionally, ODOC conducted an internal investigation. Sage Decl., Ex. 9 at 3; Ex. 10
at 18. In an interview with Plaintiff on July 19, 2017, Plaintiff reported to the corrections officer
conducting the interview that on April 21, 2017, Davis directed Plaintiff to the bathroom, ordered
that he strip, and that while following instructions to bend over and cough, Davis touched his
"bottom" with a gloved hand. Id., Ex. 10 at 17 (sealed exhibit of OSP investigation report), ECF
36. The interviewer's report states that a review of the unclothed search log from April 2017
showed that Plaintiff was not one of the inmates chosen for an unclothed search. Id. But, the
May 2017 logs showed that on May 14, 2017, he was subject to an unclothed search and nothing

11 - OPINION & ORDER

was found. Id.3 The interviewer's report notes that a PREA incident was created in "OMS" and
due to the length of time between the alleged incident and the interview, Plaintiff was not
examined by medical, no photographs were taken, and no evidence was gathered. Id.
OSP investigated the matter. Id. ¶ 15; Ex. 10. The OSP investigator received his
assignment on July 19, 2017. Id., Ex. 10 at 6. He attempted to interview Plaintiff on two
occasions, first on August 2, 2017, and again the next day. Id. at 2-4. Plaintiff was
uncooperative both times, either refusing to say anything or stating that he had to have a legal
representative present. Id. The investigator also met with Davis twice. Id. at 2-5. Ultimately,
the investigator concluded that Plaintiff's complaints could not be substantiated. Id. at 5. No
further action on Plaintiff's complaint appears to have occurred.
The undisputed facts show that Plaintiff never filed a grievance in accordance with
ODOC policy concerning the alleged sexual assault by Davis, whether it occurred in April or
May of 2017. Plaintiff fails to provide the date of his alleged call to the PREA Hotline or the
dates of his discussions with Iverson. Thus, assuming that a call to the PREA Hotline is the
functional equivalent of a grievance, there is no evidence in the record that the call occurred
before filing suit. There is no evidence in the record that his conversations with Iverson occurred
before filing suit. Thus, no issue of fact is created by Plaintiff's Declaration that his PREA
Hotline call, if it occurred at all, was timely in the context of an exhaustion requirement.
Even if Plaintiff made the PREA Hotline call before filing the lawsuit in June 2017, there

3

Exhibit 10 contains the relevant visitor logs and unclothed search logs showing that Cathy
Nelson visited Plaintiff on April 21, 2017, that Melissa Oien and Jeremy Oien visited on May 14,
2017, and that Plaintiff was subject to a "Visiting Room Unclothed Search" on May 14, 2017.
Sage Decl., Ex. 10 at 8-11 (search log), 13-15 (visitor logs).
12 - OPINION & ORDER

is no admissible evidence that his complaint was successfully redressed. Davis's Declaration
states that he was not disciplined over the alleged incident and that he has had no break in his
employment with ODOC. Even Plaintiff himself, in his Amended Complaint, alleges that Davis
is still employed at TRCI. Am. Compl. ¶ 3 (alleging Davis is an officer at TRCI); ¶ 6 (alleging
that Davis did not get terminated and still works at TRCI). Plaintiff's statements that Iverson told
him that Davis was being removed from TRCI and was no longer employed by the ODOC are
inadmissible hearsay. Iverson is not a party and because the State, the ODOC, and TRCI are not
proper Defendants, Iverson's statement is inadmissible under Federal Rule of Evidence 801(d)(2).
Moreover, to support an argument that the alleged PREA Hotline call resulted in a favorable
resolution, Iverson's alleged statement that Davis was terminated must be offered for its truth.
Thus, it is hearsay, with no applicable exception. As a result, there is no admissible evidence in
the record to show that Plaintiff's alleged PREA Hotline call resulted in a satisfactory outcome of
his complaint. The basis for Plaintiff's argument that informal channels resulted in a favorable
outcome which obviated the need to file a grievance is not found in the record.
While Plaintiff did file the Tort Claim Notice, it was sent to an entirely separate state
agency and not to the ODOC. Thus, this notice did not satisfy Plaintiff's obligation to file a
grievance. The fact that the tort claim resulted in an outside investigation does not excuse
Plaintiff's failure to file an internal grievance. And, even if the Tort Claim Notice is treated as
the functional equivalent of filing a grievance or making a call to the PREA Hotline, Plaintiff
offers no evidence that he pursued his complaint after the OSP investigation concluded without
substantiating his allegations. Plaintiff offers no evidence that he requested further investigation
or review or sought to appeal the OSP determination. Finally, Plaintiff cannot claim to be
13 - OPINION & ORDER

satisfied by the result of the OSP investigation which would excuse him from exhausting his
administrative remedies when he received no concrete relief. See, e.g., Cleveland v. Lam, No. C14-1369, 2005 WL 628340, at *4 (N.D. Cal. Feb. 12, 2015) ("Plaintiff's case is distinguishable
from Harvey [v. Jordan, 605 F.3d 681 (9th Cir. 2010)] because at no point was Plaintiff led to
believe that he would be removed from the high-risk medical classification and . . . at no point
was Plaintiff satisfied by the partial grant of his appeals at the first level of review"); Coles v.
Cate, No. 2:10-CV-1996 KJN P, 2011 WL 6260372, at *5 (E.D. Cal. Dec. 15, 2011) (plaintiff's
alleged "satisfaction" with an administrative decision that granted no concrete relief did not
excuse him from exhausting administrative remedies).
Finally, in regard to the First Amendment retaliation claim, there is no evidence of any
grievance or pursuit of an equivalent administrative remedy other than the two complaints made
about non-defendant Herrara which Plaintiff did not pursue.
Even when viewing the evidence in a light favorable to Plaintiff, there is no admissible
evidence creating an issue of fact as to whether Plaintiff exhausted his remedies before filing suit
or obtained some concrete relief that excused him from doing so. As a result, he has failed to
properly exhaust his claims which are dismissed without prejudice.
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14 - OPINION & ORDER

CONCLUSION
Defendants' motion for summary judgment [18] is granted.
IT IS SO ORDERED.

Dated this

day of

Marco A. Hernandez
United States District Judge

15 - OPINION & ORDER

, 2018