Hentz v. Gruenwald et al

Filing 99

ORDER: Defendants' Motion for Partial Summary Judgment 27 ) is granted and Claim 2 of plaintiff's Amended Complaint is dismissed without prejudice for failure to exhaust administrative remedies. Signed on 9/9/2019 by Judge Michael J. McShane. **5 PAGE(S), PRINT ALL**(Leumal Hentz, Prisoner ID: 6750414) (cp)

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON

LEUMAL FRED HENTZ,

Case No. 2:18-cv-00493-MC

Plaintiff,

ORDER

v.
L. GRUENWALD, et al.,
Defendants.
_____________________________
MCSHANE, District Judge:
Plaintiff, an inmate at the Snake River Correctional Institution, filed this action pursuant
to 42 U.S.C. § 1983 and alleged that prison officials committed numerous violations of his civil
rights. Currently pending is defendants’ motion for partial summary judgment on Claim 2 of
plaintiff’s Amended Complaint. Defendants argue that this claim is barred for failure to exhaust
administrative remedies. I agree, and defendants’ motion is granted.
DISCUSSION
To prevail on their motion for summary judgment, defendants must show there is no
genuine dispute as to any material fact and they are entitled to judgment as a matter of law. Fed.
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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.”). The court must construe the evidence and draw all reasonable inferences in the light most
favorable to plaintiff. Torres v. City of Madera, 648 F.3d 1119, 1123 (9th Cir. 2011).
Under the Prison Litigation Reform Act (PLRA), inmates must exhaust all available
administrative remedies before filing a federal action to redress prison conditions or incidents.
See 42 U.S.C § 1997e(a) (“No action shall be brought with respect to prison conditions under
section 1983 of this title, 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.”).
The exhaustion requirement is mandatory and requires compliance with both procedural and
substantive elements of the prison administrative process. Woodford v. Ngo, 548 U.S. 81, 85, 90
(2006). If the defendant shows that the inmate did not exhaust an available administrative
remedy, “the burden shifts to the prisoner 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.” Albino, 747 F.3d at 1172; see also Sapp v. Kimbrell,
623 F.3d 813, 822 (9th Cir. 2010) (the PLRA does not require exhaustion when administrative
remedies are “effectively unavailable”).
The Oregon Department of Corrections (ODOC) employs a three-step grievance and
appeal process. Or. Admin. R. 291-109-0140. Generally, the inmate must file a grievance within
30 days of the alleged condition or incident. Id. 291-109-0150(2). If a grievance is accepted, the
inmate may appeal a response to the grievance within 14 calendar days. Id. 291-109-0170(1)(b).
If the first appeal is denied, the inmate may file a second appeal within 14 days of the date the
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denial was sent to the inmate. Id. 291-109-0170(2)(c). A decision following a second appeal is
final and not subject to further review. Id. 291-109-0170(2)(f).
An inmate also may file an inmate discrimination complaint if he believes he has been
subjected to discrimination by an ODOC staff member. Or. Admin. R. 291-006-0015(1)(a). In
such cases, the discrimination complaint coordinator must receive the complaint within 30
calendar days of the incident giving rise to the complaint. Or. Admin. R. 291-006-0031(2).
In Claim 2, plaintiff alleges that Nurse Practitioner (NP) Gruenwald interfered with his
medical treatment because of his race in violation of plaintiff’s rights to due process and equal
protection.1 Although plaintiff has filed numerous grievances and discrimination complaints,
none has alleged discriminatory treatment by NP Gruenwald. Taylor Decl. ¶¶ 12, 15 & Att. 4.
In response to defendants’ motion, plaintiff argues that he completed the grievance
process for Grievance No. TRCI 2016-04-202. However, that grievance alleged NP Gruenwald
provided inadequate medical care by discontinuing certain accommodations previously
prescribed by a physician; the grievance did not allege interference with his medical treatment
based on racial discrimination. Id. Att. 5 at 8-9. Plaintiff also argues that no other administrative
remedies were available to him. The ODOC discrimination complaint process and plaintiff’s
previous utilization of that process contradict his argument. Id. Att. 4.
Accordingly, plaintiff did not exhaust his available administrative remedies before filing
suit on Claim 2, and that claim must be dismissed.
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1

In Claim 1, plaintiff alleges that NP Gruenwald exhibited deliberate indifference to his
serious medical needs. Claim 1 is not at issue.
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CONCLUSION
Defendants’ Motion for Partial Summary Judgment (ECF No. 27) is GRANTED and
Claim 2 of plaintiff’s Amended Complaint is DISMISSED without prejudice for failure to
exhaust administrative remedies.
IT IS SO ORDERED.
DATED this 9th day of September, 2019.

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

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