Pohlman v. Hormann et al

Filing 72

OPINION & ORDER: Defendants' Motion for Partial Summary Judgment 60 is Granted in Part and Denied in Part. Summary judgment is entered in favor of defendants Hormann, Peters, Ladeby, Coleman, Baysinger, and Olson as to Pohlman's ADA accommodation and retaliatory transfer claims. Those claims are dismissed with prejudice and those defendants are dismissed from this action. Further, Defendants' motion for summary judgment against all new claims introduced in Pohlman� 39;s Proposed Amended Complaint 37 is Denied in Part as it applies to Claims 5 and 6, arising after September 17, 2014, the date Pohlman filed his initial complaint. Defendants' motion is Granted in Part as it applies to Claims 1, 3, and 4, pr edating September 17, 2014, and Pohlman must strike the portions of his Proposed Amended Complaint 37 related to those claims. Thus, Pohlman is granted leave to re-file his Proposed Amended Complaint 37 in accordance with this Order. Pohlman 9;s Motion for Leave to File an Amended Complaint 37 , as modified by this Order, is Granted. Finally, the stay as to Pohlman's Motions to Compel 38 , 56 , 57 63 & 64 ; and Motions to Add Supplemental Parties and Motions for Joinder 52 & 53 is Lifted. In addition, the stay of discovery and pending deadlines is Lifted. Discovery and motions may proceed on Pohlmans remaining claims. Signed on 8/4/15 by Magistrate Judge Paul Papak. (gm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

MARLIN BRANDT POHLMAN,

Plaintiff,

v.

3: l 4-cv-1483-PK
OPINION AND
ORDER

KEVIN HORMANN, COLLETT PETERS,
R. LADEBY, C. COLEMAN,
W. BAYSINGER, C. OLSON, C. DIGULIO,
D. FUZI, J. SMITH,

Defendants.

PAPAK, Magistrate Judge:
Plaintiff prose Marlin Brandt Pohlman filed this action on September 17, 2014 against
defendants Kevin Hormann, Colette Peters, R. Ladeby, C. Coleman, W. Baysinger, C. Olson, C.

1 - OPINION AND ORDER

DiGulio, D. Fuzi, and J. Smith. By and through his complaint, Pohlman alleges the liability of
each defendant under 42 U.S.C. § 1983 for violations of his First, Fifth, Eighth, and Fourteenth
Amendment rights. This court has federal-question jurisdiction over Pohlman's claims pursuant
to 28 U.S.C. § 1331.
Now before the comt is Defendants' motion for pattial summary judgment (#60) as to
Pohlman's claims against defendants Hormann, Peters, Ladeby, Coleman, Baysinger, and Olson.
Defendants move on the grounds that plaintiff has failed to exhaust his administrative remedies
for all but two of the claims in his complaint. I have considered the motion and all of the
briefings, papers, and pleadings on file. For the reasons set forth below, Defendants' motion is
granted in patt and denied in patt, and Pohlman's claims against defendants Ho1mann, Peters,
Ladeby, Coleman, Baysinger, and Olson are dismissed.

FACTUAL BACKGROUND
I.

The Parties
Plaintiff Pohlman is an incarcerated person and has been in the custody of the Oregon

Depattment of Corrections ("ODOC") since October 17, 2013. Declaration (#61) of Marian
Geils ("Geils Deel."), 9if 3. Pohlman was housed at the Deer Ridge Conectional Institution
("DRCI") from April 25, 2014 to August 12, 2014, and at the Snake River Correctional
Institution ("SRCI") beginning on August 12, 2014. 1 Id., Att. 1.
Defendant Kevin Hormann is the Assistant Superintendent of Security at DRCI.
Defendant Peters is the Director of ODOC. Defendant Ladeby is the Food Services Manager at
1

Pohlman's housing dates at DRCI are elsewhere noted as April 24, 2014 to July 1, 2014.
Geils Deel., ii 3. However, those dates appear to be incotTect based on ODOC's record of
Pohlman's housing histmy, and documentation of Pohlman's grievances. See Geils Deel., Att. 1.
2 - OPINION AND ORDER

DRCI. Defendant Coleman is the Inmate Work Program Coordinator at DRCI. Defendant
Baysinger is a Correctional Counselor at SRCI. Defendant Olson is the CotTections Food
Services Coordinator at DRCI. Defendant DiGulio is a physician at DRCI. Defendant Fuzi is
the Medical Services Manager at DRCI. Defendant Smith is a Correctional Officer at DRCI.

II.

Facts Underlying the Parties' Dispute2
Pohlman's complaints arise from an injury he sustained on April 24, 2014 while in

transport from Eastem Oregon Correctional Institution to DRCI. 3 Declaration (#69) of Marlin
Brandt Pohlman ("Pohlman Deel."), iJ 1. In his initial complaint, Pohlman raises several claims
conceming his treatment after the injury. Complaint, #2, 5-7. Defendants concede that Plaintiff
fully exhausted the grievance process for his claims with respect to defendants Smith, DiGulio,
and Fuzi, involving failure to obtain medical treatment and denial of a low bunk and work
restriction. Defendants' Motion (#60) for Partial Summary Judgment ("Defendants' Motion"), 2.
Those claims are not at issue in Defendants' motion for partial summary judgment, and therefore
I will not address the facts pertaining to those claims here.

A.

ADA Accommodation

On July 25, 2014, Pohlman filed a grievance conceming defendant Olson's threatening
and intimidating communication to him in the DRCI Kitchen, and requesting ADA

2

Except where otherwise indicated, the following recitation constitutes my construal of
the evidentiary record in light of the legal standard goveming motions for summaiy judgment
under Federal Civil Procedure Rule 56.
3

Both Pohlman and Defendants refer to the date of Pohlman's injury as April 24, 2014,
though some of Pohlman's grievances refer to April 25, 2014 as the date of inju1y. E.g., Geils
Deel., Att. 4 at 2; Att. 5 at 4.
3 - OPINION AND ORDER

accommodation for his kitchen work assignment. Geils Deel.,~ 16; Att. 5 at 18; Att. 6 at 1. 4
DRCI staff responded on August 5, 2014. Geils Deel., Att. 6 at 3.
Pohlman appealed the response on August 6, 2014, but did not include all of the
documentation required. Geils Deel., Att. 6 at 4, 5. The DRCI grievance coordinator
nonetheless accepted the appeal on August 11, 2014 and notified Pohlman that additional
information was needed to proceed. Id., Att. 6 at 5.
Pohlman was transfened to SRCI on August 12, 2014. Geils Deel.,~ 17; Pohlman Deel.,
~28.

On August 13, 2014, Pohlman sent the original grievance and grievance response to the
DRCI grievance coordinator. Geils Deel., Att. 6 at 9. The DRCI grievance coordinator received
the necessary additional documentation on August 19, 2014, and Pohlman's appeal proceeded.

Id., Att. 6 at 6.
Pohlman initiated this litigation on September 17, 2014. Complaint, #2.
On October 8, 2014, DRCI Superintendent Tim Causey responded to Pohlman's appeal.
Geils Deel., Att.6 at 11. Pohlman did not appeal the first level appeal response.

B.

Id.~

18.

Transfer to SRCI

On August 15, 2014, Pohlman filed a grievance alleging that he was transported from
DRCI to SRCI as "a reprisal" for reporting his transport injury and seeking treatment and ADA

4

The Pohlman Declaration (#69) includes many of the same attachments as the Geils
Declaration (#61 ), but the numbering is either illegible or non-sequential, so I refer to the Geils
Declaration for clarity and consistent numbering.

4 - OPINION AND ORDER

acconunodation. 5 Geils Deel., Att. 7 at 2-3.
The SRCI grievance coordinator received the grievance on August 20, 2014, but it was
"delayed while [sic] tried to resolve w/ inmate." Geils Deel., ii 22; Att. 7 at 2-3. The delay
occurred because Pohlman sent an inmate conununication on August 14, 2014 to Eastside
Institutions Administrator Steve Franke asking why he had been transferred. Geils Deel., ii 23;
Att. 7 at 4. Franke responded to the letter on August 27, 2014. Geils Deel., Att. 7 at 5.
The DRCI grievance coordinator received a copy of the grievance on October 2, 2014.
Geils Deel., Att. 7 at 2-3. After the DRCI grievance coordinator confirmed that the handwritten
note regarding the delay was from the SRCT grievance coordinator, she "restarted the grievance
process." Id.

~24.

The grievance was "referred out" for a response on October 21, 2014, but no response
was provided. Geils Deel.,~ 25; Att. 7 at 6, 7.
On December 2, 2014, Pohlman was informed that ODOC could not respond to his
grievance due to his litigation filed on September 17, 2014. Geils Deel., Att 7 at 8.

III.

Grievance Procedures at ODOC
Pohlman has at all matei'ial times been housed at either DRCI or SRCI. Pohlman had

'Pohlman states that this grievance was his "third good faith effort to continue the DRCM
2014-07-026 sequence," which grieved denial of ADA accommodations. Pohlman Deel., ii 35.
Pohlman details his difficulties in obtaining a grievance appeal f01m at SRCI, and effo1t to
continue the appeal using a primary grievance form instead. Id. iiii 29-35. However, upon
review of the grievance f01m, I find that the grievance Pohlman filed on August 15, 2014
constituted a new grievance. Geils Deel., Att. 7 at 2-3. The DRCI grievance coordinator
accepted Pohlman's first appeal ofDRCM 2014-07-026 on August 11, 2014. Id., Att. 6 at 5.
That appeal was still pending on August 15, 2014 when Pohlman first grieved his transfer from
DRCI to SRCI. Id., Att. 6 at 6; Att. 7 at 2-3.

5 - OPINION AND ORDER

available to him a three-level grievance procedure consistent with the regulations set fo1ih in
Chapter 291, Division 109 of the Oregon Administrative Rules ("OARs").
Pursuant to the DRCI and SRCI grievance procedures and applicable Oregon
Administrative Rules, "[i]f an inmate is unable to resolve an issue through info1mal
communications, [the] inmate may seek resolution of the issue by submitting a written grievance
using the department's approved inmate grievance form (CD 117)." OAR-291-109-0140(1)(a).
Any such grievance "must include a complete description of the incident, action, or application
of the rnle being grieved, including date and approximate time," and should be accompanied by
any referenced documents. OAR-291-109-0140(1)(b). Matters, actions, and incidents that an
inmate may properly grieve are the "misapplication of any administrative directive or operational
procedure," the "lack of an administrative directive or operational procedure," any
"unprofessional behavior or action which may be directed toward an inmate by an employee or
volunteer of [ODOC] or the Oregon Corrections Enterprises," any "oversight or enor affecting an
inmate," any "program failure as defined in ... OAR-291-077-0020," except where such failure
was caused by the inmate's misconduct, or the "loss or destruction of [the inmate's] property.... "
OAR-291-109-0140(2). "An inmate grievance may request review of just one matter, action or
incident per inmate grievance form." OAR-291-109-0140(l)(d). Similarly, inmates are not
pe1mitted to grieve the actions of more than one ODOC employee through a single grievance
form, but rather must file one grievance fo1m per ODOC employee whose actions are the subject
of the inmate's challenge. See OAR-291-109-0140(5). In addition, inmates are not pe1mitted to
grieve any "[c]!aims or issues the inmate has pursued or is pursuing in pending litigation in state

6 - OPINION AND ORDER

or federal courts." OAR-291-109-0l 40(3)(h). A grievance will not be processed unless it is
received by the applicable grievance coordinator on form CD 117 "within 30 calendar days of the
date of the incident giving rise to the grievance." OAR-291-109-0150(2).
Upon receipt of an inmate grievance, a grievance coordinator is required to "assign the
grievance a number, date stamp, and record its receipt in an inmate grievance log" and to "send a
grievance receipt to the inmate." OAR-291-109-0160(1) and (1 )(a). The grievance coordinator
is then required to coordinate with the ODOC employee best suited to respond to the grievance,
and to send the inmate's grievance to that person "for reply." OAR-291-109-0160(l)(b). The
response must "be returned to the grievance coordinator for processing within 21 calendar days."
OAR-291-109-0160(l)(c). Following such processing, the grievance coordinator is required to
send the inmate copies of both the grievance and the response, and to retain copies for the
grievance coordinator's files, all within "45 days from the date the grievance was received" by the
grievance coordinator, "unless further investigation is necessaty." OAR-291-109-0160(2). In the
event the grievance coordinator fails to complete processing of the grievance within 45 days of
its receipt, "the grievance coordinator will make an effort to notify the inmate of the status of the
grievance." Id.

"If the inmate does not receive a response within the allotted time frame, he/she

may contact the grievance coordinator." Id.
"If at any time the grievance coordinator dete1mines the inmate has pursued his/her
grievance through state or federal courts ... the grievance process will cease and the grievance
will be returned to the inmate." OAR-291-109-0160(4) . "A grievance that has been returned to
[an] inmate by the grievance coordinator for procedural reasons cannot be appealed."

7 - OPINION AND ORDER

OAR-291-109- 0160(5).
An inmate may appeal the institutional response to the inmate's grievance by and through
"the grievance appeal form (CD 117c)." OAR-291-109-0170(1)(a). Any such appeal "must be
submitted to the grievance coordinator together with the original grievance, attachments, and
staff response(s). " Id. The scope of the originally submitted grievance cannot be expanded on
appeal, and the inmate is not permitted to add new info1mation regarding the grieved incident on·
appeal,. except where such information was unavailable to the inmate at the time the original
grievance was filed. See id. Any such appeal must be received by the grievance coordinator
"within 14 days from the date that the grievance response was sent to the inmate from the
grievance coordinator." OAR-291-109-0170(1)(b). The grievance coordinator is required to
send the appeal to the "functional unit manager," who is required to respond to the appeal "within
30 calendar days." OAR-291-109-0170(1)(a)(B) and (l)(d). The grievance coordinator is then
required to send the functional unit manager's appeal response to the inmate. See
OAR-291-109-0l 70(2)(c).
In the event an inmate wishes to appeal the functional unit manager's decision regarding a
grievance appeal, the inmate may do so "using the grievance appeal form (CD 1l7c)."
OAR-291-109-0l 70(2)(a). Any such appeal "must be submitted to the grievance coordinator
together with the original grievance, attachments, staff responses, and documentation related to
the first grievance appeal." Id. The grievance coordinator must receive any such appeal "within
14 calendar days from the date that the first grievance appeal response was sent to the inmate
from the grievance coordinator." OAR-291-109-0170(2)(c). As with the first appeal, appeal of
the functional unit manager's response cannot expand the scope of the original grievance, and

8 - OPINION AND ORDER

cannot adduce new information regarding the originally grieved incident, except where such
info1mation was unavailable to the inmate at the time the original grievance or first appeal was
filed. See OAR-291-109-0170(2)(a). The grievance coordinator is required to forward any such
appeal to "the Assistant Director having authority to review and resolve the issue." Id.
The Assistant Director with such authority is required to respond to any such appeal from
a functional unit manager's grievance appeal response "within 30 calendar days."
OAR-291-109-0170(2)(e). "The Assistant Director's ... decision on an inmate's grievance
appeal is final, and is not subject to fu1iher [administrative] review." OAR-291-109- 0170(2)(f).

LEGAL STANDARD
Summmy judgment is appropriate if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, "show[] that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law." Fed. R. Civ. P. 56(a). Summmy judgment is not proper if material factual issues exist for
trial. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986); Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995).
The substantive law governing a claim or defense dete1mines whether a fact is material. See
}.fore/and v. Las Vegas }vfetro. Police Dep 't, 159 F.3d 365, 369 (9th Cir. 1998). In evaluating a
motion for summmy judgment, the district courts of the United States must draw all reasonable
inferences in favor of the nonmoving party and may neither make credibility determinations nor
perfo1m any weighing of the evidence. See, e.g., Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 150 (2000); Lytle v. Household iv!fg., Inc., 494 U.S. 545, 554-55 (1990).

9 - OPINION AND ORDER

ANALYSIS
Pohlman brings several First, Fifth, Eighth, and Fomieenth Amendment claims under
Section 1983, which are premised on (1) the denial of Pohlman's request for ADA
accommodation, and (2) claims that his transfer from DRCI to SRCI on August 12, 2014 was
retaliatory. For the purposes of the analysis that follows, I construe these claims separately.

I.

Prison Litigation Reform Act
Under the Prison Litigation Reform Act ("PLRA"), incarcerated plaintiffs are required to

exhaust all administrative remedies available to them within the institutions in which they are
housed before bringing any federal action in connection with prison conditions, including such
actions brought under 42 U.S.C. § 1983:
No action shall be bronght 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 conectional facility until such
administrative remedies as are available are exhausted.
42 U.S.C. § 1997e(a). For purposes of the PLRA, actions brought with respect to "prison
conditions" include all actions brought to challenge isolated episodes of unconstitutional or
otherwise unlawful misconduct of any kind as well as prisoner petitions challenging conditions
of confinement. See Porter v. Nussle, 534 U.S. 516, 532 (2002). Under the PLRA, the courts
lack discretion to consider claims challenging prison conditions, including claims for money
damages, except where such claims are filed following complete exhaustion of available
administrative remedies, without regard to the nature of the administrative remedies available
under such administrative grievance procedures. See id. at 524, citing Booth v. Churner, 532
U.S. 731, 739, 740 n.5, 741 (2001).

10- OPINION AND ORDER

Inmates are not required to plead or demonstrate exhaustion before bringing prisonconditions lawsuits. Jones v. Bock, 549 U.S. 199, 216 (2007). To the contrary, an incarcerated
plaintiff's failure to satisfy the PLRA exhaustion requirement is an affirmative defense that is the
burden of the defendant in a prison-conditions lawsuit to raise and prove. See id. Following the
Ninth Circuit's en bane decision in Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014), the courts of
the Ninth Circuit treat challenges to a prisoner's exhaustion of administrative remedies as
motions for summary judgment if premised on proffered evidence, and as motions to dismiss for
failure to state a claim if premised on the incarcerated plaintiff's pleading alone. See Albino, 747
F.3d at 1166. Here, Defendants have properly brought an evidence-based challenge to Pohlman's
exhaustion of administrative remedies as a motion for partial summary judgment.

"If undisputed evidence viewed in the light most favorable to the prisoner shows a failure
to exhaust, a defendant is entitled to summaty judgment under Rule 56." Id. However, "[i]f
material facts are disputed, summaty judgment should be denied, and [following such denial] the
district judge rather than a jmy should determine the facts." Id The Albino court specified that
the comi should act as the finder of fact in comtection with an exhaustion challenge "in a
preliminaty proceeding," id at 1168, "if feasible, before reaching the merits of a prisoner's
claim," id. at 1170. Such preliminaty proceeding is to be conducted "in the same manner a judge
rather than a jmy decides disputed factual questions relevant to jurisdiction and venue," id.,
which is to say via a plenary evidentiaty hearing to be conducted in a mamter within the
discretion of the court, see, e.g., Data Disc, Inc. v. Systems Technology Associates, Inc., 557 F.2d
1280, 1285, 1285 n. 2 (9th Cir. 1977).
For purposes of the PLRA, "complete exhaustion" of available administrative remedies

11 - OPINION AND ORDER

requires that an inmate "complete the administrative review process in accordance with [all]
applicable procedural rules, including deadlines .... " ivfarel/a v. Terhune, 568 F.3d 1024, 1027
(9th Cir. 2009), quoting Woodford v. Ngo, 548 U.S. 81, 88 (2006). Indeed, as the Supreme Court
established in Woodford, "proper exhaustion of administrative remedies ... 'means using all
steps that the agency holds out, and doing so properly (so that the agency addresses the issues on
the merits)."' Woodford, 548 U.S. at 90 (emphasis original), quoting Pozo v. lvfcCaughfly, 286
F.3d 1022, 1024 (7th Cir. 2002). The Woodford court reasoned that to hold otherwise would
permit prisoners to render the PLRA exhaustion requirement "wholly ineffective" by defaulting
in the performance of administrative requirements and then claiming exhaustion by virtue of such
procedural default. Id. at 95. Under Woodford, only proper exhaustion of administrative
requirements, including compliance with deadlines and perfo1mance of all procedural requisites,
is sufficient to satisfy the requirements of the PLRA. See id. at 90-91 ("Proper exhaustion
demands compliance with an agency's deadlines and other critical procedural rules .... ").
1.

Claims Alleging Denial of ADA Accommodation

As noted above, on July 25, 2014, Pohlman filed a grievance requesting ADA
accommodation, to which he received a response on August 5, 2014. Also as noted above,
Pohlman filed a first appeal on August 6, 2014, but did not provide all of the necessmy
documentation. The DRCI grievance coordinator nonetheless accepted the appeal on August 11,
2014, and received the additional info1mation from Pohlman on August 19, 2014. DRCI
Superintendent Tom Causey responded to Pohlman's appeal on October 8, 2014, after Pohlman
initiated this litigation. Pohlman did not appeal the response. Because Pohlman failed to fully
exhaust the administrative process with respect to his ADA accommodation claims, this comt

12 - OPINION AND ORDER

lacks discretion to consider the merits of those claims.
Pohlman contends that he made two attempts to continue the appeal process for his ADA
accommodation grievance before finally resorting to using a primary grievance form. Pl.'s
Response, 11-12. That grievance was labeled as the beginning of a new grievance sequence,
rather than a continuation of Pohlman's ADA accommodation grievance. Pohlman Deel., 'if'if 30,
33, 35; Pl.'s Response, 14. Pohlman asse1is that prison employees "exercise control over the
labeling, numbering, grouping and association of grievances and appeals which may be exe1ied
to render a remedy unavailable." Sur-Response to Motion for Pmiial Summaiy Judgment, #71,
7. Pohlman also argues that the confiscation of his grievance paperwork dming transfer to SRCI,
and failme of ODOC officials to respond to his grievances within the time required under the
OARs obstructed his pmsuit of administrative exhaustion. Pl.'s Response, 10-11, 15-16.
Once the defendant proves there was an available administrative remedy that the prisoner
failed to exhaust, "the burden shifts to the prisoner to come forward with evidence showing that
there is something in his pa1iicular case that made the existing and generally available
administrative remedies effectively unavailable to him." Albino v. Baca, 747 F.3d 1162, 1172
(9th Cir. 2014). Under the OARs, the functional unit manager has 30 days from the date he or
she receives a grievance appeal to return the grievance appeal and response to the grievance
coordinator. OAR-291-109-0l 70(1)(d). In Brown v. Valojf, 422 F.3d 926 (9th Cir. 2005), the
Ninth Circuit agreed with other circuits in "'refus[ing] to interpret the PLRA so nanowly as to ...
permit [prison officials] to exploit the exhaustion requirement through indefinite delay in
responding to grievances."' 422 F.2d at 943 n.18, citing Lewis v. Washington, 300 F.3d 829, 833
(7th Cir. 2002). In Brown, inmate Hall filed a federal action less than two rnonths after prison

13 - OPINION AND ORDER

officials notified him that an investigation into his complaint was pending. 422 F.3d at 933.
Though the court stated that "delay in responding to a grievance, pmiicularly a time-sensitive
one, may demonstrate that no administrative process is in fact available," they failed to find that
Hall "was prejudiced by the long time it took to conclude the investigation into his staff
complaint." Id. at 943 n.18.
Pohlman's first level appeal was still pending when he was transfened to SRCI and when
he filed this action. Geils Deel., Att. 6 at 5, 6. Pohlman's appeal was accepted on August 11,
2014. Id., Att. 6 at 5. Though Pohlman's prior grievance paperwork was confiscated when he
was transferred to SRCI on August 12, 2014, Pohlman was able to send the DRCI grievance
coordinator the additional documents necessary to continue his appeal on August 13, 2014. Id.,
Att. 6 at 9. There is no evidence that the processing of that appeal was affected by prison
officials labeling his first retaliatory transfer grievance as a new grievance sequence. On August
19, 2014, Pohlman received notice that his first level appeal was proceeding. Id., Att. 6 at 6.
Without receiving a response to his appeal, Pohlman filed this action less than 30 days later, on
September 17, 2014. Complaint, #2. Pohlman's pursuit of administrative exhaustion was not
obstructed with respect to his ADA accommodation claims. Rather, Pohlman successfully filed a
first grievance appeal, which was pending when he commenced this action.
Additionally, any arguable delay in the appeal process did not render Pohlman's
administrative remedies effectively unavailable. If the appeal response time tolled from when
Pohlman's additional paperwork was received on August 19, 2014, then as of September 17,
2014, when Pohlman brought this action, there was no delay under the OARs. If the time tolled
from August 11, 2014, then as of September 17, 2014, 37 days had elapsed without a response.
14 - OPINION AND ORDER

Based on the grievance process rnles, it is not clear that prison officials were required to send
Pohlman a response within 30 days. The rnles only state that the functional unit manager must
provide the grievance coordinator with an appeal response within 30 days.
Even assuming arguendo that the response to Pohlman's grievance appeal was indeed
delayed as of September 17, 2014, Pohlman was not prejudiced by the delay. Pohlman waited
only a week after the 30 days had tolled before bringing this action, though he was on notice of a
potential delay when the DRCI grievance coordinator informed him that additional
documentation was necessaiy to continue with his appeal. There is no evidence that the third
level of the grievance process was unavailable to Pohlman or that Pohlman attempted to continue
the grievance process when his first appeal was delayed by seven days. Pohlman therefore still
had unexhausted remedies available to him when he brought this action.
Based on the foregoing analysis, I find that Pohlman did not exhaust his administrative
remedies with respect to his ADA accommodation claims, and this comt therefore lacks
discretion to consider the merits of those claims.

2.

Transfer to SRCI

As noted above, Pohlman filed a grievance alleging that his transfer from DRCI to SRCI
was "a reprisal" for rep01ting his transp01t injmy and seeking ADA accommodation. Geils Deel.,
Att. 7 at 2-3. Also as noted above, the SRCI grievance coordinator received the initial grievance
on August 20, 2014, but the process was delayed. Geils Deel., iii! 22, 23; Att. 7 at 2-3. The
DRCI grievance coordinator received a copy of the grievance on October 2, 2014 and "restarted
the grievance process." Geils Deel., if 24; Att. 7 at 2-3. The grievance was "referred out" for a
response on October 21, 2014, but no response was provided. Geils
15 - OPINION AND ORDER

Deel.,~

25; Att. 7 at 6, 7.

On December 2, 2014, Pohlman was infonned that ODOC could not respond to his grievance
due to his litigation filed on September 17, 2014. Geils Deel., Att. 7 at 8.
Pohlman argues that threats of retaliation for filing a grievance excuse exhaustion. Pl.'s
Response, 18. He contends that the administrative remedies available to him are inadequate to
address grievances about acts of retaliation that were intended to obstruct the use of those same
remedies. Id. at 19. Pohlman offers Gibson v. Benyhill, 411 U.S. 564 (1973) and Wray v. Or.
Dep't of Corr., No. 2:12-CV-00980-PK, 2013 WL 3479477 (D. Or. July 8, 2013) as support for

these contentions.
However, Pohlman misstates the authority. In Gibson, the Supreme Court found that
exhaustion of administrative remedies generally is not required in suits challenging the adequacy
of the available administrative remedies. 411 U.S. at 574-575, 575 n.14. In Wray, however,
based on the broad scope of the PLRA exhaustion requirement, this court declined to extend the
Gibson rule to challenges to the adequacy of prison grievance procedures. 2013 WL 34794 77 at

*12.

Based on Wray, exhaustion of Pohlman's retaliat01y transfer claim is not excused.
Pohlman failed to exhaust his available administrative remedies with respect to his

retaliat01y transfer claim. The SRCI grievance coordinator received Pohlman's initial grievance
on August 20, 2014. Geils Deel.,~ 24; Att. 7 at 2-3. The grievance coordinator had 45 days
from that date to process the grievance. OAR-291-109-0160(2)(a). Without receiving a
response, Pohlman commenced this action on September 17, 2014, only 28 days after the SRCI
grievance coordinator received his initial grievance, and before the DRCI grievance coordinator
even received his initial grievance. Pohlman did not wait for a response to his initial grievance,
contact the SRCI or DRCI grievance coordinator for an update (see OAR-291-109-0160(2)(b)),
16- OPINION AND ORDER

or file an appeal. Pohlman had several remaining administrative remedies available to him when
he brought this action.
Based on the foregoing analysis, I find that Pohlman did not exhaust his administrative
remedies with respect to his retaliatory transfer claims, and this court therefore lacks discretion to
consider the merits of those claims

3.

Summary

In consequence of the foregoing analysis, under the PLRA this court lacks discretion to

consider the merits of Pohlman's ADA accommodation and retaliatory transfer claims against
defendants Hormann, Peters, Ladeby, Coleman, Baysinger, and Olson. Defendants are entitled to
pmiial summmy judgment in connection with those claims, and they are dismissed with
prejudice.

II.

Pohlman's Proposed Amended Complaint
Defendants move for summmy judgment notwithstanding Pohlman's proposed amended

complaint, which attempts to include new defendants and claims in this proceeding. Defendants'
Motion, 5-6. To support this, Defendants cite Thunderbird v. ODOC, 2011 WL 2971796 (D. Or.
June 28, 2011), a case decided by this court that stands for the proposition that a claim is
"brought" for the purposes of the PLRA when a plaintiff submits his complaint. Accordingly,
Defendants seek summmy judgment on claims introduced in the proposed amended complaint
that postdate Pohlman's initial complaint.
The Ninth Circuit has drawn a distinction between an amended complaint introducing
new claims arising after the filing of the initial complaint and one that solely involves claims
predating the filing of the initial complaint. See Rhodes v. Robinson, 621F.3d1002 (9th Cir.
17 - OPINION AND ORDER

2010). In the former situation, the amended complaint is considered a "supplemental complaint"
and exhaustion of new claims need only occur before filing the supplemental complaint. Id. at
1006-1007.
Therefore, Defendants' motion is denied in part to the extent Pohlman's proposed
amended complaint introduces new claims that arose after the initial complaint was filed. Claims
5 and 6, respectively involving a November 2014 misconduct report and inadequate medical care
in 2015, survive Defendants' motion. Motion (#37) for Leave to File Amended Complaint
("Proposed Amended Complaint"), 23; Defendants' Motion, 5. Those claims merely supplement
the initial complaint and do not, on their face, violate the PLRA. See Rhodes, 621 F.3d at 1007.
However, Defendants' motion is granted in part insofar as the amended complaint involves new
claims or new facts in support of claims predating the filing of the initial complaint, including
but not limited to those items related to Pohlman's initial transport injury, Defendants' denial of
ADA accommodation, and Pohlman's transfer to SRCI, contained in Claims 1, 3, and 4 and the
related facts. Proposed Amended Complaint, #37-1, 12-13, 15-20. Those aspects of the
Proposed Amended Complaint (#37-1) must be stricken and Pohlman is granted leave to re-file
his Proposed Amended Complaint in conformity with this Order.

CONCLUSION
For the reasons set forth above, Defendants' motion for partial summmy judgment (#60)
is granted in part and denied in part. Summmy judgment is entered in favor of defendants
Hormann, Peters, Ladeby, Coleman, Baysinger, and Olson as to Pohlman's ADA accommodation
and retaliat01y transfer claims. Those claims are dismissed with prejudice and those defendants
are dismissed from this action.
18 - OPINION AND ORDER

Fu1iher, Defendants' motion for summary judgment against all new claims introduced in
Pohhnan's Proposed Amended Complaint (#37-1) is denied in pait as it applies to Claims 5 and
6, arising after September 17, 2014, the date Pohlman filed his initial complaint. Defendants'
motion is granted in part as it applies to Claims 1, 3, and 4, predating September 17, 2014, alld
Pohlman must strike the po1iions of his Proposed Amended Complaint (#37-1) related to those
claims. Thus, Pohlman is granted leave to re-file his Proposed Amended Complaint (#37-1) in
accordance with this Order as follows:
• Claim 1 regarding original transport injmy in April 2014 must be stricken;
• Claim 2 against Smith, Fuzi, DiGulio, and (proposed defendant) Carter SURVIVES;
• Claim 3 regarding Pohlman's ADA accommodation claim must be stricken;
• Claim 4 regai·ding Pohlman's retaliat01y transfer claim must be stricken;
• Claim 5 against (proposed defendants) Richardson, Landaverde, Clements, Capps, and
Nooth SURVIVES; and
• Claim 6 against (proposed defendant) State of Oregon SURVIVES.
Fmiher, Pohlman's Motion for Leave to File an Amended Complaint, as modified by this
Order, (#37) is granted. Finally, the stay as to Pohlman's Motions to Compel (#38), (#56), (#57),
(#63) & (#64); and Motions to Add Supplemental Paliies and Motions for Joinder (#52) & (#53)
is lifted. In addition, the stay of discove1y and pending deadlines is lifted. Discove1y and

Dated this

Honorable Paul Papak
United States Magistrate Judge

19 - OPINION AND ORDER