Loos v. Oregon Department of Corrections et al
Filing
38
OPINION AND ORDER. The Court GRANTS Defendants' Motion to Dismiss 29 . The parties may provide the Court with simultaneous supplemental briefing on the question whether Plaintiff's claims pertaining to the confiscation and loss of his eyeglasses should not be with prejudice no later than February 24, 2012. IT IS FURTHER ORDERED that the remainder of Plaintiff's claims are DISMISSED WITH PREJUDICE. IT IS SO ORDERED. Signed on 2/6/2012 by Judge Anna J. Brown. (gw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
DANIEL C. LOOS,
Civil No. 3:11-cv-00208-BR
Plaintiff,
OPINION AND ORDER
v.
OREGON DEPARTMENT OF CORRECTIONS;
OFFICER "JOHN DOE"; CORRECTIONAL
OFFICER CARBOJEL; CORRECTIONAL
OFFICER J. SALDIVER; CORRECTIONAL
OFFICER BROOKS; CORRECTIONAL
OFFICER JANE OR JOHN DOES 1-10;
JANE OR JOHN DOES 1-10 CENTRAL
MEDICAL STAFF; and CORRECTIONAL
OFFICER T. HICKS,
Defendants.
DANIEL C. LOOS
SID 13783862
Snake River Correctional Institution
777 Stanton Blvd.
Ontario, OR 97914-8335
Plaintiff Pro Se
1 - OPINION AND ORDER -
JOHN R. KROGER
Attorney General
KRISTIN A. WINGES-YANEZ
Assistant Attorney General
1515 SW Fifth Avenue
Suite 410
Portland, OR 97201
Attorneys for Defendants
BROWN, Judge.
Plaintiff,
an
inmate
at
the
Snake
River
Correctional
Institution ("SRCI"), brings this civil action pro se. Currently
before the Court is Defendants' Motion to Dismiss [29].
reasons
that
follow,
the
Court
GRANTS
Defendants'
For the
Motion
to
Dismiss.
BACKGROUND
Plaintiff,
who
describes
himself
as
openly
homosexual,
alleges employees o f the Oregon Department of Corrections ("ODOC")
have openly discriminated against Plaintiff over the three-year
period
preceding
prescription
the
Complaint.
eyeglasses,
without
Plaintiff
which
he
alleges
is
"very
he
uses
blind."
Plaintiff alleges he was placed in the Disciplinary Segregation
Unit
("DSU"),
and
that
DSU
staff
eyeglasses and refused to return them.
members
confiscated
his
Plaintiff was subsequently
informed his eyeglasses were "lost."
Plaintiff alleges he took all informal actions available to
him, but was deprived of a replacement pair of eyeglasses and an
2 - OPINION AND ORDER
eye exam.
After six months, Plaintiff claims he did then receive
a replacement pair of eyeglasses.
Plaintiff
alleges
confiscated and lost
correctional
officials
his eyeglasses because
intentionally
Plaintiff
is gay.
Plaintiff also alleges he has been subjected to verbal harassment
from
Defendants
because
of
Plaintiff's
sexual
orientation.
Plaintiff alleges he was harassed nearly daily by Defendants with
"anti-gay hate remarks."
Although
not
artfully
pleaded,
it
appears
Plaintiff's
Complaint attempts to allege three or four separate claims for
relief.
First, Plaintiff alleges a claim for discrimination under
42 U.S.C.
§
1983 in violation of his Fourteenth Amendment right to
Equal Protection.
§
Plaintiff also appears to allege a separate
1983 claim for violation of unspecified civil rights because of
the verbal harassment.
Plaintiff
also
alleges
Disabilities Act ("ADA"),
a
42 U.S.C.
deprivation of his eyeglasses.
allegations that his
claim under
§
the
Americans
With
12101-12131 because of the
Finally,
Plaintiff makes vague
rights under "anti-hate crime / gay rights"
legislation have been violated.
By way of remedy, Plaintiff seeks
money damages and the restoration of his property.
Defendants move to dismiss
bases:
(1)
Plaintiff's Complaint on three
Plaintiff failed timely and properly to exhaust the
administrative remedies available to him for all claims he now
3 - OPINION AND ORDER
raises;
(2)
Plaintiff's
claim
of
insufficient to state a claim under
verbal
harassment
alone
is
1983; and (3) Plaintiff, as
§
a private individual, cannot bring a civil claim under the Hate
Crimes Act, 18 U.S.C.
§
249.
Plaintiff did not file any response
to Defendants' Motion to Dismiss.l
DISCUSSION
I.
Failure to Exhaust Administrative Remedies
A.
Legal Standards
In the Ninth Circuit the failure to exhaust administrative
remedies "should be treated as a matter in abatement,
which is
subject to an unenumerated Rule 12(b) motion rather than a motion
for summary judgment."
Cir.
2003);
766,
767
Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th
see also Dixon v.
(9th Cir.
2011)
Corr.
Corp.
of Am.,
420 F.
App'x
(" [TJhe failure to exhaust nonjudicial
remedies that are not jurisdictional should be treated as a matter
in abatement, which is subject to an unenumerated Federal Rule of
Civil
Procedure 12 (b)
judgment").
motion rather that
a motion for
summary
To decide a motion to dismiss for failure to exhaust
administrative remedies, the court may look beyond the pleadings
and decide disputed issues of fact.
Wyatt, 315 F.3d at 1119-20.
IThe Court issued an Order [34] advising Plaintiff of the
requirements for responding to Defendants' Motion to Dismiss for
lack of exhaustion of remedies and granting Plaintiff time to file
a response to the Motion to Dismiss.
4 - OPINION AND ORDER
A prisoner must exhaust all available administrative remedies
before bringing a
federal action concerning prison conditions.
Griffin v.
557 F.3d 1117, 1119 (9th Cir. 2009)
Arpaio,
Inmates
are required to exhaust all grievance remedies before filing a
§
1983 claim,
including appealing the grievance decision to the
highest level within the grievance system.
Exhaustion
1120.
is
not
limited
to
§
Wyatt,
1983
315 F.3d at
actions
as
the
"exhaustion requirement applies to all inmate suits about prison
life,
whether they involve general circumstances or particular
episodes and whether they allege excessive force or some other
wrong."
Porter v.
Nussle,
534
u.s.
516,
532
(2002).
The Ninth
Circuit has explicitly states that ADA claims must be exhausted by
prisoners through administrative remedies before they can file
suit.
Q'Guinn
v.
Lovelock Correctional
Center,
502 F.3d 1056,
1062 (9th Cir. 2007)
Unlike summary judgment,
dismissal for failure to exhaust
administrative remedies is not a decision on the merits.
315
F.3d at 1119.
"If the district
court
concludes
Wyatt,
that
the
prisoner has not exhausted nonjudicial remedies, the proper remedy
is dismissal of the claim without prejudice."
5 - OPINION AND ORDER
Id. at 1120.
B.
General Grievances
1.
The
procedure
ODOC Grievance Procedures
ODOC
has
established
an
administrative
inmates
are
encouraged
disputes
resolve
whereby
with
staff
through
communication or in writing.
face-to-face
dispute,
or
written
Or.
to
attempt
face-to-face
Admin.
communication
first
R.
review
verbal
291-109-0120.
does
not
If
resolve
the
an inmate may file an informal written grievance.
Admin. R. 291-109-0140 (1) (a)
to
Or.
The grievance will be forwarded to
the appropriate staff person for a response.
If the inmate is not satisfied with the response to his
formal
written grievance,
he may appeal by filing a
appeal form within 14 days.
Or. Admin.
R.
grievance
291-109-0170(1) (a).
The appeal is then forwarded to the functional unit manager for
review and response.
If the inmate is not satisfied with the functional unit
manager's decision, he may appeal that decision within 14 days by
sending a grievance appeal to the assistant director.
R.
2911-109-0170 (2) (a) .
The assistant
director's
final and is not subject to further review.
109-0170 (2) (d) .
6 - OPINION AND ORDER
Or. Admin.
decision
Or. Admin. R.
is
291
2.
Plaintiff's Grievances Pertaining to his Eyeglasses
On June 9,
2010,
Plaintiff filed a grievance alleging
the confiscation and loss of his glasses while he was in DSU, and
requesting that he receive a replacement pair or an eye exam for
another
pair
of
eyeglasses.
grievance on June 28,
Defendant
Hicks
received
the
2010, and then accepted and processed the
grievance, assigned it a number (SRCI 2010-06-140), and forwarded
it to the Security department for a response.
On June 30, 2010, Defendant Hicks received a response to
the grievance from A. Arnold stating the following:
Inmate Loos, at no time did I remove your glasses
from your property.
I do recall you sending me a KYTE
to receive them.
I searched your property completely
and could not find them.
I do not recall you being
placed in Segregation with glasses on.
Send a KYTE to
the officers who inventoried your property for the
whereabouts of your glasses to make sure they haven't
been confiscated.
On July 14, 2010, Defendant Hicks forwarded the grievance response
to Plaintiff.
In
the
interim,
on
July
13,
2010,
Defendant
Hicks
received another grievance from Plaintiff which was dated July 1,
2010.
get
his
In it, Plaintiff again requested to see his eye doctor or
glasses back.
Defendant Hicks assigned the grievance
number SRCI 2010.07.079,
and denied it:
"You may not file more
than one grievance regarding a single incident.
7 - OPINION AND ORDER
(291-109-149-4) ,
duplicate/overlays
(2010.06.140)."
She
sent
the
denial
to
received
a
Plaintiff.
On
November
5,
2010,
Defendant
Hicks
grievance first appeal from Plaintiff dated October 26, 2010.
In
it, Plaintiff asked for $20,000.00 or "we can make a deal" for all
Defendant Hicks
the alleged trouble he had been put through.
denied the grievance first appeal, stating the following reason:
"Too late - you should have filed in July 2010 also the grievance
process does not provide monetary compensation."
Defendant Hicks
sent the denial to Plaintiff.
Defendant Hicks received a grievance second appeal from
Plaintiff dated November 1, 2010.
Plaintiff alleged his grievance
first appeal was late because his original grievance response was
not
delivered
$20,000.00
or
to
an
him
on
time. 2
agreeable
deal.
Plaintiff
Defendant
again
Hicks
requested
denied the
grievance second appeal, stating "Too late for appeals."
She then
sent the denial to Plaintiff.
Even though Plaintiff filed a timely grievance about his
missing eyeglasses, he did not timely file his first appeal from
the grievance denial.
2010,
Plaintiff had up to and including July 28,
to file his first appeal.
He did not do so until October
2 In an unrelated KYTE dated August 1, 2010, however, the Court
notes Plaintiff made reference to his grievance about his
eyeglasses and the reply to that grievance by ODOC staff.
8 - OPINION AND ORDER
26,
2010,
almost
90
days
after
the
date
his
appeal
was
due.
Because Plaintiff's appeal was not timely, he failed properly to
exhaust
the
administrative
u. s.
548
Woodford,
under 42
u.s.c.
filing
an
§
at
remedies
93-95
available
(holding that
to
him.
See
"proper exhaustion"
1997e(a) is mandatory and cannot be satisfied by
untimely
or
otherwise
administrati ve grievance or appeal).
procedurally
Accordingly,
defective
Plaintiff's
claims pertaining to the alleged confiscation and loss of his
eyeglasses,
whether
based
upon
§
1983
or
the
ADA,
must
be
dismissed for lack of exhaustion.
C.
Discrimination Complaints
Administrative Rules governing Discrimination Complaints by
ODOC inmates are found in Or. Admin.
R.
Chapter 291,
Division.
The rules provide that "[aJny inmate who believes that he/she or
any specific class of persons is subjected to discrimination on
the basis of race, color, national original, sex, religion, age,
marital status, or handicap may themselves, or by representative,
file a written complaint."
The written complaint must be filed
within 180 days of the alleged act of discrimination and must be
submitted to the functional unit manager of the unit to which the
inmate is assigned.
Defendant Hicks located one discrimination complaint filed by
Plaintiff.
On December 20, 2010, Hicks received a discrimination
complaint dated December 16, 2010.
9 - OPINION AND ORDER
In the complaint,
Plaintiff
alleged he had been beaten up by staff because he is homosexual.
Hicks denied the discrimination complaint on the basis that it did
not provide a valid basis for discrimination,
staff's
reactive
use
of
force
has
a
separate
Hicks provided the denial to Plaintiff,
action.
Defendant
Hicks
located
and because ODOC
no
review
process.
and he took no further
further
discrimination
complaints submitted by Plaintiff.
The sole discrimination complaint filed by Plaintiff did not
pertain to any of the claims alleged in his Complaint.
As such,
Plaintiff did not exhaust available state remedies pertaining to
his discrimination claims.
D.
Accordingly, they must be dismissed.
Dismissal With or Without Prejudice
In Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003), the
Ninth Circuit declared "[iJf the district court concludes that the
prisoner has not exhausted nonjudicial remedies, the proper remedy
is dismissal of the claim without prejudice."
Int'l Longshoremen's & Warehousemen's Union,
n.3
(9th Cir.
1988)
(per curiam)). 3
(Citing Ritza v.
837 F.2d 365, 368 &
Since Wyatt,
courts in the
3"A dismissal without prejudice opens the door to a renewed
contest.
A dismissal with prej udice brings the contest to a
close." Salveson v. Western States Bankcard Ass'n, 731 F.2d 1423,
1432 (9th Cir. 1984).
A dismissal without prej udice may be
intended to end the current litigation in the court involved, but
not to act as an adjudication on the merits or to bar the filing of
a similar action in the same court.
A dismissal with prejudice
precludes the plaintiff from pursuing the same claims in another
action.
10 - OPINION AND ORDER
Ninth
Circuit
have
routinely
applied
standard with little discussion.
the
"without
The Court notes,
prej udice"
however,
the
Ninth Circuit has not explicitly addressed a situation in which a
prisoner who failed to exhaust his administrative remedies is now
procedurally barred from doing so.
Other courts,
For
however,
example,
Second
the
have directly addressed this issue.
Circuit
held
that
"dismissal
with
prejudice, when remedies are no longer available, is required 'in
the
absence
of
any
justification
administrative remedies.'"
Cir.
2004)
2004)).
for
not
pursuing
[such]
Giano v. Goord, 380 F.3d 670, 675 (2d
(quoting Berry v. Kerik,
366 F.3d 85,
87-88
(2d Cir.
The Seventh Circuit agrees:
A dismissal for failure to exhaust administrative
remedies is normally without prejudice, thus giving the
prisoner an opportunity to exhaust his remedies and
refile his suit at a later date.
But when a
grievance is not reviewed because it was filed to late,
exhaustion is no longer possible.
Because 42
u.s.c. § 1997e(a) prohibits a prisoner from bringing
suit without exhausting state remedies, if exhaustion is
no longer possible then the suit is barred.
Such
a defect is properly termed procedural default and thus
[the District Judge] properly dismissed the case with
prejudice.
Robinson v. U.S., 80 Fed. Appx. 494, *5 (7th Cir. 2003)
(internal
citations omitted).
Despite the broad proposition announced in Wyatt, Magistrate
Judge
Tsuchida
of
the Western
11 - OPINION AND ORDER
District
of Washington
recently
recommended that dismissal for failure to exhaust be entered with
prejudice, explaining as follows:
Normally where a complaint is dismissed for failure
to exhaust administrative remedies, dismissal should be
wi thout prej udice.
Dismissal without prej udice makes
sense when a prisoner still has the opportunity to
properly exhaust his administrative remedies.
In such
a situation, the prisoner should be allowed to exhaust
his remedies and then reinitiate a § 1983 action if his
claims are not remedied at the administrative level.
Here, however, plaintiff no longer has the opportunity
to properly exhaust his administrative remedies, as the
time for plaintiff to submit his grievance to the jail
director has come and gone.
Accordingly, as the time to properly exhaust
administrative remedies has long passed, plaintiff's
complaint should be dismissed with prej udice.
This
course of action would be consistent with the Supreme
Court's decision in Woodford v. Ngo.
In that case, the
Supreme Court addressed whether a prisoner could avoid
the PLRA' s exhaustion requirement by failing to seek
administrative
review within the period of time
specified in the
institution's procedures.
The
plaintiff argued § 1997e (a) should be interpreted to
mean that the doors of the federal courthouse were open
as soon as the administrative remedies were no longer
available,
regardless
of
the
cause
of
the
unavailability. The Supreme Court roundly rejected the
argument that "[b]are unavailability suffices even if
this results from a prisoner's deliberate strategy of
refraining from filing a timely grievance so that the
litigation of the prisoner's claim can begin in federal
court.H 548 u.S. at 88.
Mitchell
v.
Diazon,
2011 WL 6370160,
*6
(W.D.
Wash.,
Oct.
31,
2011), report and recommendation adopted by 2011 WL 6370080 (W.D.
Was h ., De c. 2 0 , 2 0 11) .
Similarly in this case, it is apparent that Plaintiff is now
time-barred
from
exhausting
12 - OPINION AND ORDER
his
administrative
remedies,
and,
therefore, it does not "make sense u to dismiss this matter without
prejudice.
Accordingly, in order to complete the record in this matter,
the parties may provide simultaneous supplemental briefing to the
Court on the question whether the dismissal of Plaintiff's claims
pertaining to the alleged confiscation and loss of his eyeglasses
should not be with prejudice.
Any such supplemental filings are
due no later than February 24, 2012.
II.
Failure to State a Claim for Relief - Verbal Harassment
A.
Legal Standards
"In federal court, dismissal for failure to state a claim is
proper 'only if it is clear that no relief could be granted under
any
set
of
facts
that
could
be
proved
consistent
with
the
allegations.'u
Cervantes v. City of San Diego, 5 F.3d 1273, 1274
(9th Cir. 1993)
(quoting Hishon v. King & Spalding,
467 U.S.
69,
73 (1984)); Tanner v. Heise, 879 F.2d 572, 576 (9th Cir. 1989). In
making this determination, this court accepts all allegations of
material fact as true and construes the allegations in the light
most favorable to the nonmoving party.
Tanner,
879 F.2d at 576.
In civil rights cases involving a plaintiff proceeding pro
se, this court construes the pleadings liberally and affords the
plaintiff the benefit of any doubt.
Police Dept., 839 F.2d 621,
13 - OPINION AND ORDER
Karim-Panahi v. Los Angeles
623 (9th Cir. 1988).
Before dismissing a pro se civil rights complaint for failure
to
state
a
claim,
this
court
supplies
the
statement of the complaint's deficiencies.
plaintiff
with
a
Karim-Panahi, 839 F.2d
at 623-24; Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir. 1987).
A
se
pro
litigant
will
be
given
leave
to
amend
his
or
her
complaint unless it is absolutely clear that the deficiencies of
the complaint cannot be cured by amendment.
Karim-Panahi,
F.2d at 623;
1130-31
Lopez v.
Smith,
203 F.3d 1122,
839
(9th Cir.
2000).
B.
Analysis
To state a claim under 42 U.S.C.
allege facts
§
1983,
showing the deprivation of a
a plaintiff must
right,
privilege or
immunity secured by the Constitution or federal law by a person
acting under color of state law.
120
(9th Cir.
(9th Cir.
1992 );
1989).
Collins v.
"Verbal
L.W.
v. Grubbs,
Womancare,
harassment
or
974 F.2d 119,
878 F.2d 1145,
abuse
1147
is
not
sufficient to state a constitutional deprivation under 42 U.S.C.
§
1983."
1987)
01 tarzewski v.
Ruggiero,
830 F. 2d 136,
139
(9th Cir.
(citation omitted) .
the
To
extent
Plaintiff
alleges
prison
guards
verbally
harassed him based upon his sexual orientation, Plaintiff fails to
allege
a
claim upon which
14 - OPINION AND ORDER
relief may be
given
under
§
1983.
Because it is clear Plaintiff cannot cure the defects of this
claim by amendment, the dismissal must be with dismissal.
III. No Private Cause of Action - Hate Crimes Act
Finally,
Plaintiff alleges
under
"anti-hate
u.S.C.
§
crime/gay
Defendants violated his
rights."
The
Hate
Crimes
rights
Act,
18
249(a) (2), makes it a federal crime willfully to cause or
attempt to cause bodily injury to another person because of the
actual or perceived sexual orientation of that person.
The Hate
Crimes Act, as a criminal statute, does not give rise to a private
right of action.
Cal. Nov 30, 2011)
Wiley v. California, 2011 WL 6012423, *4
(E.D.
(citing Perry v. Garcia, 2010 WL 3633042, *12
(S.D. Cal. July 16, 2010)
(stating that "murder and a violent hate
crime are criminal charges, not properly part of a civil action") ;
Lorenz v.
Managing Director,
St.
Luke's Hasp.,
2010 WL 4922267
(S.D. N.Y. Nov.5, 2010); Lee v. Lewis, 2010 WL 5125327
(E.D. N.C.
Oct.28,
dismissed.
2010)).
Accordingly,
this
claim
must
be
Because the deficiencies of this particular claim cannot be cured
by amendment, the dismissal is with prejudice.
15 - OPINION AND ORDER
CONCLUSION
For these reasons,
Dismiss [29J.
the Court GRANTS Defendants'
Motion to
The parties may provide the Court with simultaneous
supplemental briefing on the question whether Plaintiff's claims
pertaining to the confiscation and loss of his eyeglasses should
not be with prejudice no later than February 24, 2012.
IT
IS
FURTHER ORDERED
that
the
remainder
of
Plaintiff's
claims are DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.
DATED this
(p~
r~
day of
J~lit1fl~,
2012.
~[~
United States District Judge
16 - OPINION AND ORDER
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?