Fish v. Peters et al

Filing 37

OPINION AND ORDER: Plaintiff's motion for partial summary judgment (# 15 ) is DENIED. Defendants' motion for summary judgment (# 31 ) is GRANTED. Signed on 6/26/2019 by Magistrate Judge John Jelderks.(Mailed to Pro Se party on 6/27/2019.) (jtj)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

CHRISTOPHER SCOTT FISH,
Plaintiff,
v.
COLETTE PETERS, Director, ODOC;
RICK ANGELOZZI, Superintendent, CRCI;
TIM CAUSEY, Superintendent, DRCI,
Defendants.
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Civil No.: 3:17-cv-01372-JE
OPINION AND
ORDER

JELDERKS, Magistrate Judge:
Pro se Plaintiff Fish brings this action pursuant to 42 U.S.C. § 1983 against Defendants,
who are employees of the Oregon Department of Corrections (“ODOC”). Plaintiff alleges that
Defendants violated his Eighth Amendment rights by purchasing, storing, preparing and serving
food that was out of date, moldy, decayed and marked “not for human consumption.” Plaintiff
also alleges that he was forced to eat off of and with implements that contained “bacteria,
decaying food, and other detritus.” (Compl. p. 5).
Plaintiff filed a Motion for Partial Summary Judgment on November 22, 2017. (Dkt. #
15). A stay of the case was then entered pending resolution of a motion for class certification.

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(Dkt. #17). The stay was lifted on November 5, 2018 and Defendants filed a Motion for
Summary Judgment on March 28, 2019. (Dkt. #s 28, 31). Neither Defendants nor Plaintiff filed
Responses.
For the reasons set forth below, Plaintiff’s motion for partial summary judgment is denied
and Defendants’ motion for summary judgment is granted.
Background
Plaintiff was an inmate in the custody of ODOC from October 15, 2012 until February
11, 2016. He was again in ODOC’s custody from June 20, 2017 until September 20, 2017.
During the periods relevant to his Complaint, Plaintiff was housed at the Columbia River
Correctional Institution (“CRCI”) and the Deer Ridge Correctional Institution (“DRCI”). During
the relevant time period, Defendant Peters was the ODOC Director, Defendant Angelozzi was
the CRCI Superintendent, and Defendant Causey was the DRCI Superintendent.
As noted above, Plaintiff alleges that Defendants knowingly purchased, stored, prepared
and served food that was out of date, moldy, decayed and marked “not for human consumption.”
Plaintiff also alleges that he was forced to eat off of and with implements that contained
“bacteria, decaying food, and other detritus.” (Compl. p. 5). Plaintiff also alleges unsanitary
conditions in the Institutions’ food service facilities. (Id.).
In support of his motion for partial summary judgment, Plaintiff has submitted a
handwritten but unsigned “Declaration.” He asserts that in February 2015, while housed at CRCI
he “informed food coordinator Mr. Hernandez about the food being rotten and moldy. Also I
informed him about the sanitation of the trays and cups.” (Dkt. # 15, p. 2). Plaintiff also asserts
that he filed a grievance regarding these issues in March 2015. (Id.). Plaintiff then alleges that

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“[a]fter the grievance process and appeal I filed a tort claim in May of 2015. After the tort claim
the investigation came back with the claim of the food & sanitation was fine.” (Id. pp. 2-3).
Defendants concede that Plaintiff filed a single grievance regarding one of the issues in
his Complaint but assert that Plaintiff did not grieve the food quality issue and failed to file an
appeal to the response given to the grievance he did file. The record evidence supports this.
Plaintiff’s grievance record reflects one grievance regarding the sanitation of plates and
silverware at CRCI. (Geils Decl. Ex. 4). The copy of Plaintiff’s grievance, which was received
on April 28, 2015, discusses the “unsanitary conditions with CRCI’s Food Services Dept.” and
specifically, dirty and greasy food trays, utensils, and cups. (Geils Decl. Ex. 5). A Grievance
Response from F. Hernandez dated May 15, 2015, addresses theses concerns. (Id.). There is no
record that Plaintiff appealed this Response.
Evaluating Motions for Summary Judgment
Federal Rule of Civil Procedure 56(c) authorizes summary judgment if no genuine issue
exists regarding any material fact and the moving party is entitled to judgment as a matter of law.
The moving party must show the absence of an issue of material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 325, 106 S.Ct. 2548 (1986). The moving party may discharge this burden by
showing that there is an absence of evidence to support the nonmoving party's case. Id. When the
moving party shows the absence of an issue of material fact, the nonmoving party must go
beyond the pleadings and show that there is a genuine issue for trial. Id.
The substantive law governing a claim or defense determines whether a fact is material.
T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987).
Reasonable doubts concerning the existence of a factual issue should be resolved against the
moving party. Id. at 630–31. The evidence of the nonmoving party is to be believed, and all

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justifiable inferences are to be drawn in the nonmoving party's favor. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255, 106 S.Ct. 2505 (1986). However, the “mere existence of a scintilla of
evidence in support of the [nonmovant’s] position [is] insufficient.” Liberty Lobby, Inc., 477
U.S. at 252. No genuine issue for trial exists where the record as a whole could not lead the trier
of fact to find for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587, 106 S.Ct. 1348 (1986).
Where parties file cross-motions for summary judgment, the court “evaluate[s] each
motion separately, giving the non-moving party in each instance the benefit of all reasonable
inferences.” A.C.L.U. of Nev. v. City of Las Vegas, 466 F.3d 784, 790–91 (9th Cir.2006) (quoting
A.C.L.U. of Nev. v. City of Las Vegas (A.C.L.U. I), 333 F.3d 1092, 1096–97 (9th Cir.2003)).
Discussion
Plaintiff moves for partial summary judgment on the issue of Defendants’ liability.
Plaintiff submits argument; his handwritten but unsigned “Declaration;” photocopies of various
food labels; and an excerpt from ORS 624.570, which addresses food handler training
requirements. (Dkt. #15).
Defendants move for summary judgment on several grounds; however, the Court finds
dispositive Plaintiff’s failure to exhaust administrative remedies.
The Prison Litigation Reform Act, 42 U.S.C. § 1997e(a) (PLRA) provides that “[n]o
action shall be brought with respect to prison conditions ... by a prisoner confined in any jail,
prison, or other correctional facility until such administrative remedies as are available are
exhausted.” 42 U.S.C. § 1997e(a). The exhaustion requirement is mandatory, even when the
prisoner seeks relief not available in grievance proceedings. Porter v. Nussle, 534 U.S. 516, 524,

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1225 S.Ct. 983 (2002); see also Woodford v. Ngo, 548 U.S. 81, 85, 126 S.Ct. 2378
(2006) (“Exhaustion is no longer left to the discretion of the district court, but is mandatory.”).
Failure to satisfy the PLRA exhaustion requirement is an affirmative defense that a
defendant has the burden to plead and prove. Jones v. Bock, 549 U.S. 199, 216, 127 S.Ct. 910
(2007). A defendant must prove that “there was an available administrative remedy, and that the
prisoner did not exhaust that available remedy.” Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir.
2014) (en banc). “Once the defendant has carried that burden, the prisoner has the burden of . . .
[coming] 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.” Id.
Furthermore, “the PLRA exhaustion requirement requires proper exhaustion.” Woodford,
548 U.S. at 93, 126 S.Ct. at 2387. “Proper exhaustion,” in turn, “‘means using all steps that the
agency holds out, and doing so properly (so that the agency addresses the issues on the
merits).’” Id. (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (2002))(emphasis in original).
ODOC has a grievance review system with a two-level appeal process that is set forth
within its Administrative Rules. (Geils Decl. ¶ 5); See OAR Chapter 291, Division 109. Inmates
are informed of the grievance process during the Inmate Orientation process and through an
Inmate Orientation Packet and the inmate handbook. (Geils Decl. ¶ 7). Here, Defendants assert
that Plaintiff has failed to exhaust his administrative remedies for the claims he raises in his
Complaint.
Defendants support this assertion with the sworn Declaration of Marian Geils, who avers
that she has made a thorough search of Plaintiff’s grievance records; that Plaintiff filed eight
grievances while in ODOC custody; that none of these grievances related to food that was
moldy, out of date, or marked “Not For Human Consumption;” and that the single grievance

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Plaintiff did file regarding food service sanitation was responded to but not appealed. (Geils
Decl. ¶¶ 17-19). Defendants have also submitted, as noted above, copies of Plaintiff’s grievance
record, the grievance he submitted regarding food service sanitation, and ODOC’s response.
(Geils Decl. Ex. 4-5).
Here, Plaintiff did not respond to Defendants’ motion for summary judgment and the
vague and unsupported statements in his Declaration in support of his own motion for partial
summary judgment are insufficient to create a genuine issue of material fact. It is well settled
that “conclusory allegations, unsupported by facts, are insufficient to survive a motion for
summary judgment.” Hernandez v. SpacelabsMed. Inc., 343 F.3d 1107, 1116 (9th Cir. 2003)
(citation omitted); see also Nelson v. Pima Cmty. Coll., 83 F.3d 1075, 1081-82 (9th Cir.
1996) (“[the] existence of a ‘scintilla’ of evidence [or] mere allegation and speculation do not
create a factual dispute for purposes of summary judgment”) (citations omitted); FTC v. Publ'g
Clearinghouse, Inc., 104 F.3d 1168, 1171 (9th Cir. 1997)(affidavits “lacking detailed facts and
any supporting evidence, [are] insufficient to create a genuine issue of material fact”).
Accordingly, Defendants are entitled to summary judgment.
Conclusion
For the reasons set forth above, Plaintiff’s motion for partial summary judgment (#15) is
DENIED. Defendants’ motion for summary judgment (#31) is GRANTED.

DATED this 26th day of June, 2019.

/s/ John Jelderks
John Jelderks
U.S. Magistrate Judge
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