Seward v. Persson et al
Filing
89
Opinion and Order: The Court GRANTS Defendants Unenumerated Rule 12(b) Motion (#52-1) to Dismiss for Failure to Exhaust, DENIES as moot Defendants Rule 12(b) Motion (#52-2) to Dismiss for Failure to State a Claim, and DISMISSES this matter without prejudice. Signed on 02/05/2014 by Judge Anna J. Brown. See attached 10 page Opinion and Order for full text. (bb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
BRIAN KEITH SEWARD,
Plaintiff,
v.
R. PERSSON Supt. OSCI;
E. SOLICE, Officer; C.
TAYLOR, Diversity
Coordinator; W. HATFIELD,
Executive Asst. to Supt.,
Defendants.
BRIAN KEITH SEWARD
198 Shady Lane #2
Soldotna, AK 99669
Plaintiff, Pro Se
ELLEN ROSENBLUM
Attorney General
SHANNON M. VINCENT
Assistant Attorney General
1162 Court Street N.E.
Salem, OR 97301
(503) 947-4700
Attorneys for Defendants
1 - OPINION AND ORDER
6:12-CV-01073-BR
OPINION AND ORDER
BROWN, Judge.
This matter comes before the Court on Defendants’
Unenumerated Rule 12(b) Motion (#52-1) to Dismiss for Failure to
Exhaust and Rule 12(b) Motion (#52-2) to Dismiss for Failure to
State a Claim.
For the reasons that follow, the Court GRANTS
Defendants’ Motion to Dismiss for Failure to Exhaust and DENIES
as moot Defendants’ Motion to Dismiss for Failure to State a
Claim.
BACKGROUND
On June 12, 2012, Plaintiff Brian Keith Seward filed a pro
se Complaint in this Court pursuant to 42 U.S.C. § 1983 in which
he alleges Defendants violated his right under the First and
Fourteenth Amendments1 to the United States Constitution when
Defendant E. Solice “touched Plaintiff’s] penis though [his]
clothing intentionally on several occasions while doing patdowns
or frisks [when Plaintiff was] leaving [his] work assignment.”
Compl. at 4.
When Plaintiff filed this action he was
incarcerated at Oregon State Correctional Institution (OSCI).
At
some point after this action was filed, Plaintiff was released
1
Although Plaintiff alleges Solice’s actions violated his
rights under the First and Fourteenth Amendments, courts
generally analyze similar claims under the Fourth Amendment. See
Byrd v. Maricopa County Sheriff's Dep’t, 629 F.3d 1135, 1140-41
(9th Cir. 2011).
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from custody.
On August 27, 2013, Defendants filed a Motion to Dismiss on
the grounds that Plaintiff failed to exhaust his administrative
remedies, or in the alternative, that Plaintiff failed to state a
claim.
The Court took the Motion under advisement on December 9,
2014.
STANDARDS
I.
Dismissal for failure to exhaust administrative remedies
In the Ninth Circuit 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."
(9th Cir. 2003).
Wyatt v. Terhune, 315 F.3d 1108, 1119
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.
Id. at 1119-20.
Unlike summary judgment, dismissal for failure to exhaust
administrative remedies is not a decision on the merits.
Id.
"If the district court concludes that the prisoner has not
exhausted nonjudicial remedies, the proper remedy is dismissal of
the claim without prejudice."
II.
Id. at 1120.
Dismissal for failure to state a claim
To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as
true, to “state a claim to relief that is
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plausible on its face.” [Bell Atlantic v.
Twombly, 550 U.S. 554,] 570, 127 S. Ct. 1955. A
claim has facial plausibility when the plaintiff
pleads factual content that allows the court to
draw the reasonable inference that the defendant
is liable for the misconduct alleged. Id. at 556.
. . . The plausibility standard is not akin to a
“probability requirement,” but it asks for more
than a sheer possibility that a defendant has
acted unlawfully. Ibid. Where a complaint pleads
facts that are “merely consistent with” a
defendant's liability, it “stops short of the line
between possibility and plausibility of
‘entitlement to relief.’” Id. at 557, 127 S. Ct.
1955 (brackets omitted).
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).
Atlantic, 550 U.S. at 555-56.
See also Bell
The court must accept as true the
allegations in the complaint and construe them in favor of the
plaintiff.
Din v. Kerry, 718 F.3d 856, 859 (9th Cir. 2013).
"In ruling on a 12(b)(6) motion, a court may generally
consider only allegations contained in the pleadings, exhibits
attached to the complaint, and matters properly subject to
judicial notice."
Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir.
2012)(citation omitted).
A court, however, "may consider a
writing referenced in a complaint but not explicitly incorporated
therein if the complaint relies on the document and its
authenticity is unquestioned."
Swartz v. KPMG LLP, 476 F.3d 756,
763 (9th Cir. 2007)(citation omitted).
A pro se plaintiff's complaint “must be held to less
stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
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Thus, the Court has
an "obligation [when] the petitioner is pro se . . . to construe
the pleadings liberally and to afford the petitioner the benefit
of any doubt."
omitted).
Akhtar v. Mesa, 698 F.3d at 1212 (quotation
"[B]efore dismissing a pro se complaint the . . .
court must provide the litigant with notice of the deficiencies
in his complaint in order to ensure that the litigant uses the
opportunity to amend effectively.”
Id. (quotation omitted).
"A
district court should not dismiss a pro se complaint without
leave to amend unless it is absolutely clear that the
deficiencies of the complaint could not be cured by amendment."
Id. (quotation omitted).
DISCUSSION
I.
Prison Litigation Reform Act (PLRA) Exhaustion Requirement
As noted, Plaintiff brings this action pursuant to 42 U.S.C.
§ 1983, which provides:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any
State . . . subjects, or causes to be subjected,
any citizen of the United States or other person
within the jurisdiction thereof to the deprivation
of any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable to
the party injured in an action at law.
Section 1983 creates a private right of action against persons
who, acting under color of state law, violate federal
constitutional or statutory rights.
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Devereaux v. Abbey, 263 F.3d
1070, 1074 (9th Cir. 2001).
The PLRA provides in pertinent part:
"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."
42 U.S.C. § 1997e(a).
Exhaustion is mandated
regardless of the relief offered through the prison administrative procedures.
Booth v. Churner, 532 U.S. 731, 121 S. Ct.
1819, 1825 (2001).
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).
Moreover, the Supreme Court held in Booth that prisoners are
obligated to navigate the prison's administrative review process
"regardless of the fit between a prisoner's prayer for relief and
the administrative remedies possible."
532 U.S. at 739-41.
Accordingly, the Ninth Circuit has held "plaintiffs must pursue a
remedy through a prison grievance process as long as some action
can be ordered in response to the complaint."
Brown v. Valoff,
422 F.3d 926, 934 (9th Cir. 2005)(emphasis in original).
Even if
the relief the prisoner receives is nothing more than "corrective
action taken in response to an inmate's grievance [that] . . .
improve[s] prison administration and satisf[ies] the inmate," it
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is sufficient relief for an inmate to continue with the administrative process.
Id. at 936 (quoting Porter, 534 U.S. at 525).
Finally, the PLRA exhaustion requirement is applicable to all
persons who are incarcerated at the time they file their civil
actions even if they were released from custody prior to
resolution of their claims.
See Talamantes v. Leyva, 575 F .3d
1021, 1023–24 (9th Cir. 2009).
See also Cox v. Mayer, 332 F.3d
422, 424–28 (6th Cir. 2003); Roshone v. Jost, No. 2:11–CV–
1331–PK, 2013 WL 5774027, at *2 (D. Or. Oct. 23, 2013).
Exhaustion of administrative remedies under 42 U.S.C.
§ 1997e(e) is an affirmative defense.
Wyatt, 280 F.3d at 1245.
"[D]efendants have the burden of raising and proving the absence
of exhaustion."
Id. at 1120.
Relevant evidence in so demonstrating would
include . . . regulations, and other official
directives that explain the scope of the
administrative review process; documentary or
testimonial evidence from prison officials who
administer the review process; and information
provided to the prisoner concerning the operation
of the grievance procedure in this case.
Brown, 422 F.3d at 937.
As noted, if the court concludes an
inmate has failed to exhaust administrative remedies, the proper
remedy is dismissal without prejudice.
Wyatt, 315 F.3d at
1119-20.
II.
The Grievance Process
Pursuant to the administrative rules of the Oregon
Department of Corrections (ODOC) that govern inmate grievances,
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inmates at ODOC facilities are required to communicate with "line
staff" verbally or in writing to resolve a dispute before filing
a grievance.
If communication with line staff does not resolve
an inmate's issue, the inmate may then file a grievance form
within 30 days of the incident or conflict.
Inmates must attach
copies of their previous communications with line staff to their
grievance forms to demonstrate that they attempted to resolve the
conflict informally before filing their grievance.
If an inmate
is not satisfied with the response to his grievance, the inmate
may file an appeal to the functional unit manager by completing a
grievance appeal form and filing it with the grievance
coordinator within 14 days from the time the response was sent to
the inmate.
The grievance coordinator then assigns a number to
the grievance and records it in the grievance log.
An inmate may appeal the functional unit manager's decision
by submitting to the assistant director an appeal form, the
original grievance, attachments, and staff responses.
The
grievance coordinator then date-stamps and logs the appeal.
The
decision of the assistant director is final and is not subject to
further review.
ODOC informs inmates of the grievance procedure at their
mandatory Admission and Orientation class held when inmates first
arrive at a facility.
In addition, information about the
procedure is contained in the Inmate Handbook.
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Inmates may
obtain grievance forms and instructions from any housing-unit
officer.
III. Analysis
The record reflects on March 15, 2012, Plaintiff filed a
grievance related to Solice’s frisks of Plaintiff.
On
March 19, 2012, Defendant C. Taylor denied Plaintiff’s grievance
on the ground that Plaintiff used disrespectful wording in
violation of Oregon Administrative Rule 291.109.1040(1)(a).
The
record further reflects Plaintiff did not appeal the denial of
his grievance arising from Solice’s alleged actions.
Although
Plaintiff asserts in his Complaint that he did not pursue
resolution of his complaint through the grievance process because
he “[could not] rely on the grievance system in place at OSCI,”
he submitted and appealed the denial of other grievances both
before and after the denial of his March 15, 2012, grievance.
In
addition, the record reflects Plaintiff filed a tort claim
related to Solice’s actions at some point before April 9, 2012,
with the Department of Administrative Service Risk Management.
After Plaintiff filed his tort claim, Oregon Administrative Rules
prohibited him from grieving Solice’s behavior and prohibited
OSCI staff from processing any grievances related to the behavior
that was the subject of the tort claim.
Or. Admin. R.
291.109.1040(3)(i).
On this record the Court concludes Plaintiff did not exhaust
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administrative procedures as to Solice’s alleged actions, and,
therefore, the Court dismisses Plaintiff’s Complaint without
prejudice.
CONCLUSION
For these reasons, the Court GRANTS Defendants’ Unenumerated
Rule 12(b) Motion (#52-1) to Dismiss for Failure to Exhaust,
DENIES as moot Defendants’ Rule 12(b) Motion (#52-2) to Dismiss
for Failure to State a Claim, and DISMISSES this matter without
prejudice.
IT IS SO ORDERED.
DATED this 5th day of February, 2014.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge
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