Carey v. Reyes et al

Filing 27

OPINION AND ORDER: Defendant's Motion for Summary Judgment (ECF No. 20 ) is GRANTED and this action is DISMISSED, without prejudice. Signed on 09/14/2022 by Judge Ann L. Aiken. **4 PAGE(S), PRINT ALL** (Clifton Carey, Prisoner ID: 18707916.) (bd)

Case 2:22-cv-00012-AA

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UNITED STATES DISTRICT COURT
DISTRICT OF OREGON

CLIFTON A. CAREY,

Case No. 2:22-cv-00012-AA

Plaintiff,

OPINION AND ORDER

v.
REYES; CAMPOS; VELIZ,
Defendants.
_____________________________
AIKEN, District Judge.
Plaintiff, an adult in the custody of the Oregon Department of Corrections (ODOC), filed
suit pursuant to 42 U.S.C. § 1983 and alleged violations of his rights under the Eighth
Amendment. Defendants now move for summary judgment on grounds that plaintiff failed to
exhaust his administrative remedies before filing suit. For the reasons set forth below,
defendants’ motion is granted.

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DISCUSSION
Plaintiff alleges that the named defendants refused to provide him evening meals for two
weeks as “punishment” for his behavior. Compl. at 3 (ECF No. 2). Defendants argue that
plaintiff failed to exhaust the ODOC grievance process before he filed the Complaint in this
action, and his claims are barred from federal review.
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.
R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also 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, 91
(2006) (stating that the PLRA exhaustion requirement requires “proper” exhaustion and
compliance with “with an agency’s deadlines and other critical procedural rules”); McKinney v.
Carey, 311 F.3d 1198, 1199-1200 (9th Cir. 2002) (per curiam). Inmates must exhaust available

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administrative remedies before filing a § 1983 action, including appealing grievance decisions to
the highest level. Jackson v. Fong, 870 F.3d 928, 933 (9th Cir. 2017).
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) (explaining that the PLRA does not require exhaustion when
administrative remedies are “effectively unavailable”); Brown v. Valoff, 422 F.3d 926, 937 (9th
Cir. 2005) (stating that an administrative remedy must be available “as a practical matter”).
ODOC employs a three-step grievance and appeal process to address complaints about
the misapplication of ODOC rules, unprofessional conduct, inadequate medical care, sexual
abuse or harassment, or the use of excessive force. See Or. Admin. R. 291-109-0210(3).
Generally, the inmate must file a grievance within fourteen days of the alleged condition or
incident. Id. 291-109-0205(1). If the grievance is accepted, a response will be provided within
thirty-five calendar days, “unless further review is necessary.” Id. 291-109-0205(2). The inmate
may appeal an unsatisfactory response to the grievance within fourteen calendar days of the
response. Id. 291-109-0205(3). If an inmate’s first appeal is denied, the inmate may file a second
and final appeal within fourteen days of the denial. Id. 291-109-0205(5).
On December 8, 2021, plaintiff submitted Grievance TRCI-2022-01-023 and complained
that in August 2021, correctional officers at Two Rivers Correctional Institution (TRCI) denied
him evening meals as punishment. Eynon Decl. Att. 6 at 2. Plaintiff was housed at Snake River
Correctional Institutional (SRCI) at the time he submitted his grievance. Id. Att. 1. On December
22, 2021, the SRCI grievance office received plaintiff’s grievance and forwarded it to TRCI. Id.
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Att. 6 at 2. On January 7, 2022, the TRCI grievance office received and accepted Grievance
TRCI-2022-01-023, because plaintiff apparently provided an explanation for filing the grievance
beyond the fourteen-day deadline. Id.; Defs.’ Mot. for Summ. J. at 6. On January 27, 2022a
response to Grievance TRCI-2022-01-023 was sent to plaintiff. Eynon Decl. Att. 6 at 7.
Plaintiff filed his Complaint on December 30, 2021, twenty-two days after he submitted
Grievance TRCI-2022-01-023 and several weeks before TRCI officials were required to provide
a response. See Compl., Certificate of Service. Under the PLRA, inmates must exhaust all
available administrative remedies before filing suit, and plaintiff did not do so. See Lira v.
Herrera, 427 F.3d 1164, 1170 (9th Cir. 2005) (explaining that “a district court must dismiss a
case without prejudice ‘when there is no presuit exhaustion’”) (citation omitted). Further, given
that TRCI officials accepted and responded to plaintiff’s grievance, he fails to show that the
grievance process was unavailable to him.
Accordingly, plaintiff failed to exhaust available administrative remedies, and federal
review of his claims is barred by the PLRA.
CONCLUSION
For the reasons explained above, defendant’s Motion for Summary Judgment (ECF No.
20) is GRANTED and this action is DISMISSED, without prejudice.
IT IS SO ORDERED.
DATED this ______
14th day of September, 2022.

_______________________
/s/Ann Aiken
Ann Aiken
United States District Judge

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