Voth v. Premo et al

Filing 47

ORDER: Plaintiff's Motion for Reconsideration of Motion for Order to Show Cause 43 , Motion for Temporary Restraining Order 44 , and Motion for Preliminary Injunction 45 are DENIED. Defendants' Motion to Stay Discovery 37 is GRANTED. Plaintiff is directed to comply with the Court's briefing schedule as to defendants' Motion for Summary Judgment 35 as set out in this Order. Signed on 5/5/2014 by Judge Garr M. King. (pg)

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON

Case No. 6:14-cv-00128-KI

FRANK E. VOTH,
Plaintiff,
v.
JEFF PREMO; MS. COFFY; CAPTAIN
LONG; JANET BIRDY WORLEY;
JANE/JOHN DOE,
Defendants.

Frank E. Voth
777 Stanton Blvd.
Ontario, OR 97214
Pro se Plaintiff
Ellen F. Rosenblum
Attorney General

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ORDER

Jake J. Hogue
Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, OR 97301-4096
Attorneys for Defendants

KING, Judge:
I.

Plaintiff’s Requests for Injunctive Relief
After filing a Motion for Temporary Restraining Order [3], Emergency Motion for

Injunctive Relief [4], Ex Parte Emergency Motion for Injunction and Extension of Time [14],
Motion for Preliminary Injunction [17], and a Motion for Order to Show Cause [29] all seeking
reassignment from Oregon State Penitentiary (“OSP”), and all of which this Court denied,
plaintiff was then transferred from OSP to Snake River Correctional Institution (“SRCI”). He
now files a Motion for Reconsideration of Motion for Order to Show Cause [43], Motion for
Temporary Restraining Order [44], and Motion for Preliminary Injunction [45] seeking
reassignment from SRCI to Multnomah County Detention Center.
The Court denies the requested injunctive relief because it is unrelated to any of the
claims for relief in plaintiff’s Amended Complaint and, therefore, plaintiff cannot demonstrate a
likelihood of success on the merits. Winter v. Natural Resources Def. Council, Inc., 555 U.S. 7,
20 (2008) (must show likely to succeed on the merits, likely to suffer irreparable harm, balance
of equities tips in his favor, and injunction in public interest). Additionally, plaintiff seeks a
mandatory injunction, which is disfavored and is granted only in extraordinary circumstances,
which do not exist here. Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d

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873, 879 (9th Cir. 2009). Finally, without addressing his allegations regarding the conditions of
confinement, I note plaintiff’s concern that he will be injured by corrections officer at SRCI,
based on allegations he made in a previous lawsuit during a previous incarceration at SRCI, are
speculative. “Speculative injury does not constitute irreparable injury sufficient to warrant
granting a preliminary injunction.” See City of L.A. v. Lyons, 461 U.S. 95, 111 (1983) (plaintiff
must show real and immediate threat of injury, and past exposure to illegal conduct does not in
itself show a present case or controversy regarding injunctive relief when unaccompanied by any
continuing, present, adverse effects).
If plaintiff believes he is entitled to amend his complaint, he must first seek permission
from this Court by filing a Motion for Leave to File a Second Amended Complaint explaining
the changes he proposes. He must also attach a copy of the proposed Second Amended
Complaint to his motion as an exhibit to the motion. Local Rule 15-1(c), (d).
II.

Defendants’ Motion for Summary Judgment
Defendants seek judgment dismissing this case on the basis that plaintiff has failed to

exhaust his administrative remedies as to any of the claims he alleges in his Amended Complaint.
Plaintiff’s response to defendants’ summary judgment [46] is largely unresponsive.
Plaintiff does not provide evidence to address the specific argument made by defendants: that
plaintiff failed to exhaust his claims through the prescribed grievance process. The central
question is whether plaintiff’s complaint is subject to dismissal for failure to exhaust remedies
when OAR 291-109-0140(3)(h) precludes an inmate from grieving a claim or issue for which the
inmate has filed a Notice of Tort with the Oregon Department of Administrative Services, Risk
Management Division. See White v. Hall, 384 F. App’x 560, 561 (9th Cir. 2010).
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First, plaintiff’s reliance on any of the proceedings in Voth v. Coursey, 6:12-cv-1156-AA,
is misplaced. Judge Aiken dismissed plaintiff’s case with prejudice after construing his
obstructionist actions as a request to voluntarily dismiss his case. Notably, she specifically stated
that she had declined to rule on defendants’ possibly meritorious failure to exhaust argument in
order to afford plaintiff the opportunity to litigate his Eighth Amendment claim on the merits.
See Voth v. Coursey, 6:12-cv-1156-AA, Order, at 4 [139].
Second, plaintiff contends he alleged in his Amended Complaint that he filed a Notice of
Tort Claim. The allegation in his Amended Complaint, however, is that he did not file a
grievance concerning the facts in the complaint because an Oregon administrative regulation
“prohibits plaintiff from filing a grievance when a Notice of Tort Claim is filed[.]” Am. Compl.
2. After closely reading the Amended Complaint, I see no allegation that plaintiff submitted a
Notice of Tort Claim covering the claims he now alleges in his Amended Complaint. In his
Response to Motion to Dismiss [42], plaintiff vaguely states that he did not “circumvent the
grievance procedure prior to filing Voth v. Coursey or this civil action. Grievances were filed
and returned to plaintiff!” Resp. 1.
In order to properly resolve defendants’ Motion for Summary Judgment, plaintiff is
directed to file a Declaration (and documentation, if he has it) by May 19, 2014 with the
following information: (1) the date he mailed a Tort Claim Notice(s); (2) the claims alleged in
each Tort Claim Notice, including the time, place and circumstances identified in the Notice; and
(3) the name of the person or entity against whom plaintiff asserted a claim. In addition, if
plaintiff disputes defendants’ representation that he filed only two grievances during the relevant
period (represented by defendants to be July 5, 2013 to March 18, 2014), he must identify (1) the
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dates on which he filed additional grievances; (2) the issues he grieved; and (3) the grievance
coordinator’s response.
Defendants’ reply will be due June 9, 2014 and the Court will take defendants’ motion
under advisement at that time. If plaintiff fails to file a Declaration by May 19, 2014, the Court
will take defendants’ motion under advisement on that date.
Defendants’ Motion to Stay Discovery [37] is granted until the defendants’ motion for
summary judgment is resolved.
CONCLUSION
Plaintiff’s Motion for Reconsideration of Motion for Order to Show Cause [43], Motion
for Temporary Restraining Order [44], and Motion for Preliminary Injunction [45] are DENIED.
Defendants’ Motion to Stay Discovery [37] is GRANTED. Plaintiff is directed to comply with
the Court’s briefing schedule as to defendants’ Motion for Summary Judgment [35] as set out in
this Order.
IT IS SO ORDERED.
DATED this

5th

day of May, 2014.

/s/ Garr M. King
Garr M. King
United States District Judge

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