Farrar v. Peters et al

Filing 30

OPINION AND ORDER: Defendants' Motion for Partial Summary Judgment 12 is granted. Plaintiff's first and second claims are dismissed with prejudice. Defendants Peters, Shelton, Gulick, White, J. Wilson, B. Wilson, and A. Hughes are also dismissed with prejudice. Signed on 2/25/2016 by Judge Garr M. King. (pg)

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON

STEPHEN . FARRAR,
Plaintiff,
v.
COLETTE S. PETERS, director of
O.D.O.C.; S. SHELTON, M.D., O.D.O.C.
medical director, G. GULICK, M.D.,
SRCI; ROBERT WHITE, RN, SRCI; J.
WILSON, Health Services, SRCI; B.
WILSON, Health Services, SRCI; A.
HUGHES, RN, SRCI; CAPTAIN
BELLMAN, O.S.P.; OFFICER
HUMPHREYS, O.S.P.,
Defendants.

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Case No. 6:15-cv-01935-KI
OPINION AND ORDER

KING, Judge:
Plaintiff, an inmate at the Oregon State Penitentiary, brings this civil rights action
pursuant to 42 U.S.C. § 1983. Currently before the court is defendants’ motion for partial
summary judgment (ECF No. 12).
BACKGROUND
Plaintiff brings the following claims for relief: deliberate indifference to his prostatitis
symptoms and retaliation for filing kytes and grievances (first claim); deliberate indifference to
his need for eye care and glasses (second claim); and violation of due process arising from a
disciplinary sanction (third claim).
Defendants move for partial summary judgment to dismiss plaintiff’s first and second
claims, and to dismiss defendants Shelton, White, Gulick, B. Wilson, J. Wilson, and Hughes, on
the basis that plaintiff failed to exhaust his administrative remedies as to these claims. In
addition, defendants move to dismiss defendant Peters for lack of personal involvement in the
alleged constitutional violations.
LEGAL STANDARDS
The Prison Litigation Reform Act (“PLRA”) states: “[n]o 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). In other words, “[t]he [PLRA]
requires that a prisoner exhaust available administrative remedies before bringing a federal action
concerning prison conditions.” Griffin v. Arpaio, 557 F.3d 1117, 1119 (9th Cir. 2009) (emphasis
added). The PLRA exhaustion requirement demands “proper exhaustion,” which means
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compliance with all deadlines and “other critical procedural rules.” Woodford v. Ngo, 548 U.S.
81, 90-91 (2006).
It is the defendants’ burden “to 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). The burden of production then shifts to the prisoner to “come
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. The
“ultimate burden of proof remains with the defendant[s].” Id. The court must view all material
facts in the light most favorable to the non-moving party. Id. at 1173. “If undisputed evidence
viewed in the light most favorable to the prisoner shows a failure to exhaust, a defendant is
entitled to summary judgment under Rule 56.” Id. at 1166.
Grievances are processed in accordance with the ODOC Administrative Rules for Inmate
Communication and Grievance Review System. Inmates are encouraged to talk to first line staff
as their primary way to resolve disputes and, if not satisfied, to use a written inmate
communication form. OAR 291-109-0100(3)(a). If this does not resolve the issue, the inmate
may file a grievance. OAR 291-109-0140(1)(a).
Inmates may grieve: (1) the misapplication of or lack of any administrative directive or
operational procedure; (2) unprofessional behavior or action directed toward an inmate by an
employee, contractor, or volunteer; (3) any oversight or error affecting an inmate; (4) a program
failure; (5) the loss or destruction of property; (6) sexual contact, solicitation, or coercion
between an employee or contractor and an inmate; and (7) sexual abuse of an inmate by another
inmate. OAR 291-109-0140(2)(a)-(h). A grievance must be filed within 30 days of the incident.
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OAR 291-109-0150(2). The grievance coordinator “will complete processing of the grievance
within 45 days from the date the grievance was received from the inmate, unless further
investigation is necessary.” OAR 291-109-0160(2)(a).
An inmate may appeal a grievance response to the functional unit manager by completing
a grievance appeal form and filing it with the grievance coordinator within fourteen days of
receipt of the response. OAR 291-109-0170(1)(a) and (b). If still not satisfied, the inmate may
appeal the functional unit manager’s decision by completing another grievance appeal form and
filing it with the grievance coordinator within fourteen days of receipt of the response.
OAR 291-109-0170(2)(c). This final appeal is decided by an assistant director having authority
over the issue, constituting the final administrative ruling. OAR 291-109-0170(2)(f). The
assistant director must respond to the grievance appeal within 30 days of receiving it. OAR 291109-0170(2)(e).
DISCUSSION
Plaintiff initiated the grievance process on the issues alleged in his first claim for relief on
May 29, 2015 when he filed grievance SRCI.2015.05.174. James A. Taylor, the grievance
coordinator for Snake River Correctional Institution, informed plaintiff he had accepted the
grievance and forwarded it to the responsible person on June 19, 2015.1 ODOC medical staff
responded on July 15, 2015. The grievance coordinator received plaintiff’s first appeal on
August 13, 2015. It was accepted and forwarded to medical staff on August 28, 2015. ODOC
Medical Director Steven Shelton responded on September 24, 2015, and it was received by the
1

Plaintiff almost simultaneously submitted a second grievance complaining of his medical
care and treatment, as reflected in his first claim for relief. Taylor returned the grievance
(SRCI.2015.06.057) for filing more than one grievance on a single incident.
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grievance coordinator’s office on October 7, 2015. Plaintiff filed his second appeal on October
8, 2015. Taylor accepted the second appeal on October 21, 2015 and informed plaintiff he would
receive a response within 30 days.
Plaintiff filed this lawsuit on October 9, 2015,2 before defendants could complete a
response to his second appeal on matters covered by plaintiff’s first claim. OAR 291-1090140(3) provides that an “inmate cannot grieve the following: . . . (h) Claims or issues the inmate
has pursued or is pursuing in pending litigation in state or federal courts[.]” The rules further
provide that “[i]f at any time the grievance coordinator determines the inmate has pursued his/her
issue through state or federal courts, or has filed a notice of tort claim, the grievance process will
cease and the grievance will be returned to the inmate.” OAR 291-109-0160(4). After Taylor
learned of plaintiff’s lawsuit, he closed the grievance and returned plaintiff’s second appeal to
him on December 11, 2015.
Plaintiff filed a grievance on the matters referenced in his second claim on May 22, 2015.
ODOC medical staff responded on June 10, 2015. Plaintiff filed his first appeal on July 8, 2015,
to which Shelton responded on July 23, 2015. Plaintiff filed his second appeal on August 13,
2015. Taylor returned it to plaintiff on or about August 30, 2015 to make corrections. Plaintiff
resubmitted his second appeal on September 10, 2015. Taylor accepted the appeal on September
2

Although the filing date on the court’s docket is October 13, 2015, the “mailbox” rule
applies. Douglas v. Noelle, 567 F.3d 1103, 1109 (9th Cir. 2009) (citing Houston v. Lack, 487
U.S. 266, 276 (1988)). Under this rule, a pro se section 1983 complaint is deemed filed the
moment the prisoner delivers it to prison authorities for mailing. The date on plaintiff’s
certificate of service attached to his complaint reflects that he delivered the complaint to be
mailed on October 9, 2015 and so it is deemed filed on that date.

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24, 2015. Again, Taylor learned plaintiff had filed a lawsuit on matters alleged in the second
appeal, so Taylor closed the grievance on December 11, 2015.
In sum, ODOC denied both of plaintiff’s second-level appeals because plaintiff filed this
lawsuit. As a result, according to defendants, plaintiff failed to exhaust his administrative
remedies. I agree. Refusing to await the conclusion of the administrative process does not
satisfy the PLRA exhaustion requirement, and does not demonstrate the unavailability of
administrative relief. Cf. Williams v. Paramo, 775 F.3d 1182, 1192 (9th Cir. 2015) (prisoner
demonstrated official action “prevented her from filing a particular grievance”).
Plaintiff makes a number of arguments in opposition to defendants’ motion. He first
suggests he sufficiently completed the grievance process because he filed his second level
grievance appeals before filing his civil complaint. However, the law is clear that the prisoner
must complete the administrative process before bringing suit. See Griffin, 557 F.3d at 1119;
Woodford, 548 U.S. at 88 (exhaustion “means using all steps that the agency holds out, and doing
so properly (so that the agency addresses the issues on the merits).”) (emphasis in original). The
premise behind the administrative review process is to ensure the agency has an opportunity to
correct its mistakes before it is required to defend itself in federal court. Woodford, 548 U.S. at
89. Since plaintiff did not wait for responses to his second-level appeals, plaintiff did not allow
the agency the opportunity to resolve his claims.
Plaintiff next asserts defendants do not comply with their own deadlines, which should
excuse him from awaiting responses to his second-level appeals before filing a lawsuit. The
evidence here is to the contrary. With respect to the grievance covering his second claim, ODOC
medical staff responded to plaintiff’s grievance within 19 days, and Shelton responded to the
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first-level appeal within 15 days. With respect to the grievance applicable to his first claim,
Taylor completed processing of the grievance in 47 days, only two days later than the 45-day
time frame anticipated by the regulations. Shelton responded to the appeal within 30 days from
receiving it from Taylor. Plaintiff gives no reason to find any delay on the part of defendants
rendered the whole process useless, that he was prejudiced by any delay, or that immediately
filing a case in federal court was the appropriate response to any delay.
Plaintiff also argues the final response from ODOC is always futile so he had no reason to
wait to file his lawsuit, but he does not allege facts applicable to these particular grievances that
would warrant my acceptance of this bald statement.
Plaintiff argues he did not have adequate notice of the rule prohibiting him from grieving
an issue on which he had filed a lawsuit. The evidence is to the contrary, however; in the inmate
handbook excerpt he submitted to the Court, inmates are instructed that they “cannot grieve”
“[c]laims or issues that the inmate is pursuing in pending litigation in state or federal courts.”
Pl.’s Ex. 39, at 1.
Finally, plaintiff contends defendants did not receive notice of the lawsuit until the Court
issued its order approving plaintiff’s in forma pauperis status on November 16, 2015, suggesting
this is somehow relevant to application of the rule stopping the grievance process upon initiation
of litigation. However, the rule requires the grievance coordinator to return the grievance and
stop the grievance process “at any time” the coordinator learns the prisoner is pursuing litigation
in federal or state court. OAR 291-109-1060(4). Here, once defendants learned of the litigation,
Taylor closed the grievances and returned them to plaintiff, just as the rule required.

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Plaintiff alternatively seeks a stay so that he can cure the deficiency. Plaintiff’s secondlevel appeals were returned to him due to his lawsuit on December 11, 2015. He was permitted
to correct the error and resubmit the appeal within 14 days of the date they were sent back to him,
but he failed to do so. OAR 291-109-10170(2)(d). Now, his second-level appeals would be
untimely and he is precluded from exhausting his administrative remedies. Woodford, 548 U.S.
at 88 (must “complete the administrative review process in accordance with the applicable
procedural rules, including deadlines, as a precondition to bringing suit in federal court”).
In sum, since plaintiff failed to exhaust his administrative remedies, this court lacks
discretion to consider the merits of his first and second claims and, as a result, I must dismiss
with prejudice those claims and the defendants named in those claims (Shelton, White, Gulick,
B. Wilson, J. Wilson, and Hughes).
II.

Defendant Peters
Defendants request dismissal of Colette Peters, the director of ODOC, because plaintiff

does not allege that she personally participated in any of the alleged violations. Plaintiff
contends he asked for help directly from Peters and, further, that she is the person who could
respond to a court-ordered injunction or declaration.
Regardless of her personal involvement, to the extent plaintiff alleges any claims against
Peters, plaintiff implicates Peters only in reference to his first and second claims, which I have
dismissed with prejudice. Compl. 3 (Peters is director); 5 (plaintiff sent kyte to Peters
referencing issues alleged in first claim); ¶¶ 8, 16 (plaintiff complained to Peters about his
medical care). Indeed, all of the documents plaintiff submitted in opposition to summary
judgment involving Peters are related to his first and second claims. Ex. 3 (denial of medical
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care); Ex. 31, 34 (denial of medical care). Peters is dismissed for the same reason as the other
named individual defendants.
III.

Summary
Plaintiff’s third claim for relief against Captain Bellman and Officer Humphreys is the

only claim remaining in this lawsuit.
CONCLUSION
Based on the foregoing, defendants’ Motion for Partial Summary Judgment [12] is
granted. Plaintiff’s first and second claims are dismissed with prejudice. Defendants Peters,
Shelton, Gulick, White, J. Wilson, B. Wilson, and A. Hughes are also dismissed with prejudice.
IT IS SO ORDERED.
DATED this

25th

day of February, 2016.

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

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