Moore v. O.D.O.C.'s Behavioral Health Services et al

Filing 65

ORDER: The Court GRANTS defendants' Unenumerated Rule 12(B) Motion to Dismiss 53 and DISMISSES this action without prejudice. Signed on 6/25/2012 by Judge Robert E. Jones. (sm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
BUCK DANIEL MOORE,

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Plaintiff,
v.
ODOC's BEHAVIORIAL HEALTH
SERVICES, DR. RUTHVEN, DR.
McCARTHY, PHIL ENGLEMAN,
CLAUDIA FISHER RODRIGUEZ,
R.N. PICURING, NP CARLA
THOMAS, LT. VORRAL and
COUNSELOR WACK,
Defendants.

3: 11-cv-00320-JO

ORDER TO DISMISS

JONES, District Judge.
In

an

Order

[61]

dated

May

2,

2012,

the

Court

advised

plaintiff that if he did not submit his own evidence in opposition
to

defendants'

administrative

motion

to

remedies,

1 - ORDER TO DISMISS

and

dismiss

for

evidence

failure

supporting

to

exhaust

defendants'

motion established that he had failed to exhaust these remedies,
the Court would grant defendants' Motion and his case would be
dismissed.

The Court gave plaintiff 30 days from the date of its

Order to submit evidence in response the defendants' motion to
dismiss for failure to exhaust administrative remedies.
In response, plaintiff filed a Motion to Stay Dismissal on the
grounds of his "disability right to sue when [he has] evidence" and
his "right as a long term S.S.D.I. diagnosed disabled American to
bring

suit

without

exhausting

the

whole

grievance

process."

Moreover, plaintiff insists that he sent the Court copies of "a lot
of grievances and appeals" related to his claims and that due to
his long term disability he has the right to sue without first
exhausting the grievance process.
Defendants

acknowledge

Motion to Stay Dismissal [64].

that

plaintiff

filed

numerous

grievances related to the adequacy of his mental health care, as
well as, a grievance related prison staff's handling of a conflict
plaintiff
maintain

had

with

plaintiff

another
failed

inmate.

to

properly

Nevertheless,
complete

process for any issue raised in his Complaint.
Support [54] at 4.

the

defendants
grievance

Memorandum in

In addition, defendants submit several sworn

declarations detailing plaintiff's efforts and failure to fully
exhaust available administrative remedies related to these claims.
See Declarations [55] through [58].

2 - ORDER TO DISMISS

Significantly, plaintiff provides no support, and the Court
finds none, for his assertion that as a disabled American he is
exempt from the Prison Litigation Reform Act of 1995's ("PLRA")
exhaustion

requirement.

To

the

contrary,

the

exhaustion

requirement applies to all prisoner suits relating to prison life.
Porter v. Nussle, 534 U.S. 516, 532 (2002). Exhaustion is required
regardless of the relief sought by the prisoner and regardless of
the relief offered by the process. Booth v. Churner, 532 U.S. 731,
741 (2001).

Finally, exhaustion of administrative remedies is a

prerequisite under the PLRA even when a sick or disabled inmate
brings an action under the Americans with Disabilities Act or the
Rehabilitation Act.

O'Guinn v. Lovelock Correctional Center, 502

F.3d 1056, 1062 (9th Cir. 2007).
Accordingly, defendants' Unenumerated Rule 12(B) Motion to
Dismiss is granted and this action is dismissed without prejudice.
CONCLUSION
Based

on

the

foregoing,

the

Court

GRANTS

defendants'

Unenumerated Rule 12(B) Motion to Dismiss [53] and DISMISSES this
action without prejudice.
///
///
///

3 - ORDER TO DISMISS

The Court certifies, pursuant to 28

U.S.C. § 1915(a)(3) and Federal Rules of Appellate Procedure
24(a)(3)(A), that any appeal of this decision would not be taken in
good faith.
IT IS SO ORDERED.
DATED this

25th

day of June, 2012.
s/ Robert E. Jones
Robert E. Jones
United States District Judge

4 - ORDER TO DISMISS