Crum v. Beal et al
OPINION & ORDER: Defendants Motion for Summary Judgment 21 is granted. Plaintiffs Motion for Partial Summary Judgment 19 is denied. Signed on 5/8/2017 by Judge Marco A. Hernandez. (copy mailed to plaintiff) (kms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
STEVEN M. CRUM,
TANYIA BEAL, Counselor, Oregon State
Correctional Institution (OSCI);
ROB PERSSON, former Superintendent,
OSCI; GUY HALL, former Superintendent,
OSCI; CHRISTINE POPOFF, Superintendent,
Steven M. Crum
3405 Deer Park Drive SE
Salem OR 97310
Plaintiff Pro Se
ELLEN F. ROSENBLUM
SHANNON M. VINCENT #054700
Senior Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, OR 97301
Attorney for Defendants
1 – OPINION & ORDER
OPINION & ORDER
HERNÁNDEZ, District Judge:
Plaintiff, Steven M. Crum, is an inmate of the Oregon Department of Corrections,
(“ODOC”), and is currently housed at the Oregon State Correctional Institution. (“OSCI”). Crum
Dec. ¶¶ 18–19, ECF 19. Defendants are employed by OSCI. Verified Compl. ¶¶ 5–8, ECF 2.
Plaintiff brings this 42 U.S.C. § 1983 action alleging that Defendants violated his rights
under both the United States Constitution and the Oregon Constitution. Plaintiff moves for
partial summary judgment on his First, Second, and Fourth claims of relief. Defendants move for
summary judgment under the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a), for
failure to exhaust administrative remedies, and alternatively on the merits of Plaintiff’s claims.
Because I agree with Defendants that Plaintiff failed to exhaust his administrative remedies, I
grant Defendants’ motion and deny Plaintiff’s motion.
Plaintiff was formerly married to Rosanne Nicole Jewett (“Rosanne”). Plaintiff and
Rosanne had two children named Gracie Robin Jewett (“Gracie”) and Cameron Henry Sanders
Jewett (“Cameron”). 1 Rosanne Nicole Jewett Dec. ¶¶ 2–3, ECF 24. After Plaintiff’s arrest,
Rosanne filed to dissolve their marriage. Crum Dec. ¶ 12. Plaintiff alleges that as part of their
divorce settlement Rosanne agreed that Plaintiff should have parenting time with their children,
including sending and receiving letters to and from Gracie and Cameron. Id. at ¶ 14.
In early April 2014, Rosanne contacted Defendant Tanyia Beal (“Beal”) “by telephone
and asked that Mr. Crum no longer send mail to her or her two children.” Beal Dec. ¶ 4, ECF 23.
Rosanne said the reason she and her family wanted to cease communications with Plaintiff was
Plaintiff refers to his children by their birth surname Crum; however, the children have been
adopted by their step-father and use the surname Jewett. See Crum Dec. Ex. 9.
2 – OPINION & ORDER
Our family needed time to grieve, heal, and move on from the trauma that Steven
Montie Crum’s crime and life imprisonment caused. Continued contact from
Steven Montie Crum was interfering with our healing process and re-opened old
wounds. My family was having trouble moving on from the trauma while Steven
Montie Crum remained in contact with us. We determined, as a family, that
cutting contact with Steven Montie Crum was necessary for our emotional health
Rosanne Nicole Jewett Dec. ¶ 7. Both Cameron and Gracie were a part of and agreed
with this decision. Cameron Henry Jewett Dec. ¶ 6, ECF 25; Gracie Robin Jewett Dec. ¶
6, ECF 26.
On April 3, 2014, in response to Rosanne’s request, Defendants Beal and Rob Persson
issued an “Outgoing Mail Restriction Notice” to Plaintiff prohibiting him from sending mail to
Rosanne, Gracie, and Cameron. Crum Dec. Ex. 1. Plaintiff later requested from Beal the written
request for an Outgoing Mail Restriction Notice, but Beal replied stating that Rosanne did not
submit the request in writing. Crum Dec. Ex. 3. Plaintiff has filed no grievances or complaints on
any issue as an ODOC inmate. Casper Dec. ¶ 11, ECF 22.
Summary judgment is appropriate if there is no genuine dispute as to any material fact
and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The
moving party bears the initial responsibility of informing the court of the basis of its motion, and
identifying those portions of “‘the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,’ which it believes demonstrate the
absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)
(quoting former Fed. R. Civ. P. 56(c)).
Once the moving party meets its initial burden of demonstrating the absence of a genuine
issue of material fact, the burden then shifts to the nonmoving party to present “specific facts”
showing a “genuine issue for trial.” Fed. Trade Comm'n v. Stefanchik, 559 F.3d 924, 927–28
3 – OPINION & ORDER
(9th Cir. 2009) (internal quotation marks omitted). The nonmoving party must go beyond the
pleadings and designate facts showing an issue for trial. Bias v. Moynihan, 508 F.3d 1212, 1218
(9th Cir. 2007) (citing Celotex, 477 U.S. at 324).
The substantive law governing a claim determines whether a fact is material. Suever v.
Connell, 579 F.3d 1047, 1056 (9th Cir. 2009). The court draws inferences from the facts in the
light most favorable to the nonmoving party. Earl v. Nielsen Media Research, Inc., 658 F.3d
1108, 1112 (9th Cir. 2011).
If the factual context makes the nonmoving party’s claim as to the existence of a material
issue of fact implausible, that party must come forward with more persuasive evidence to support
his claim than would otherwise be necessary. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986).
Plaintiff argues that Defendants, by restricting Plaintiff’s ability to send letters to his
children, violated his rights under the First and Fourteenth Amendments of the United States
Constitution. Plaintiff also argues that Defendants’ actions caused unnecessary rigor, violating
Article I, section 13 of the Oregon Constitution. Verified Compl. ¶¶ 97–98. Defendants argue
that under the PLRA, Plaintiff did not exhaust his “available” administrative remedies. As a
result, Defendants argue the case should be dismissed in its entirety with no need to reach the
merits. I agree.
PLRA Exhaustion Standards
Exhaustion under the PLRA is mandatory. McKinney v. Carey, 311 F.3d 1198, 1199 (9th
Cir. 2002) (citing Booth v. Churner, 532 U.S. 731, 741 (2001)). Under the PLRA, “[n]o action
shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal
law, by a prisoner confined in any jail, prison, or other correctional facility until such
4 – OPINION & ORDER
administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). However,
exhaustion is mandatory only as long as “administrative remedies . . . are available.” Ross v.
Blake, 136 S. Ct. 1850, 1862 (2016). “To be available, a remedy must be available as a practical
matter; it must be capable of use; at hand.” Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014)
(en banc) (internal quotation marks omitted).
Exhaustion is an affirmative defense “that must be pled and proved by a defendant.” Id.
at 1168. The defendant has the burden to prove that “there was an available administrative
remedy, and that the prisoner did not exhaust that available remedy.” Id. at 1172. Once a
defendant has made such a showing, the burden shifts to the plaintiff 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. Defendant is
entitled to summary judgment if there is undisputed evidence, when viewing the evidence in the
light most favorable to the prisoner. Id. at 1166.
In the Albino panel opinion, the court gave clear guidance regarding the analysis and
burdens of proof to be used in evaluating an exhaustion argument. 2 The defense initially has a
“very low” burden of demonstrating that an inmate failed to exhaust a claim before commencing
a lawsuit. 697 F.3d 1023, 1031 (9th Cir. 2012). This can be satisfied by evidence showing that “a
grievance procedure existed” at the agency, and “it was not followed” by the inmate. Id. at 1032.
After the defense establishes the absence of exhaustion, the burden shifts to the plaintiff
to “demonstrate that the grievance procedure was unavailable.” Id. For a remedial procedure to
be “available” it must exist both in law and, in actual practice be “capable of use to obtain some
relief for the action complained of.” Ross, 136 S. Ct. at 1859 (internal quotation marks omitted).
Although the en banc court rejected the panel’s decision on the merits, it affirmed the burdens
of proof laid out by the panel. See Albino 747 F.3d at 1172.
5 – OPINION & ORDER
In Ross, the Supreme Court enumerated three instances where a procedure, in a practical sense, is
unavailable: (1) when the process operates as a “simple dead end” with no actual possibility of
relief to prisoners; (2) when the process is so opaque or confusing that it is “essentially
unknowable—so that no ordinary prisoner can make sense of what it demands”; and (3) when
prison officials thwart inmates from using the process through machination, misrepresentation,
or intimidation. Id. at 1859–60 (internal quotation marks omitted).
The “Outgoing Mail Restriction Notice” was issued to Plaintiff pursuant to Oregon
Administrative Rule (“O.A.R.”) 291-131-0021. Crum Dec. Ex. 2. Under this rule, “[t]he
department may prohibit an inmate from sending unwanted mail to a particular person or address
when requested by the person or, in the case of a minor child, by the child’s parent or legal
guardian.” O.A.R. 291-131-0021(1). Both parties agree that by its own terms, there is no
potential administrative review under this rule. O.A.R. 291-131-002(3) (“The decision will be
final and will not be subject to administrative review.”).
However, according to Defendants, when a review is not allowed under a specific
regulation, an inmate may file a grievance under O.A.R. 291-109-0140, which sets forth the
“Inmate Communication and Grievance Review System.” Casper Dec. ¶¶ 8, 12. This regulation
gives inmates the right to file a grievance concerning “[t]he misapplication of any administrative
directive or operational procedure[s.]” O.A.R. 291-109-0140(2)(a). Plaintiff does not contest that
a grievance over the outgoing mail restriction could potentially be filed under this provision.
While O.A.R. 291-109-0140(2) gives inmates the right to file such a grievance, O.A.R.
291-109-0140(3) restricts that broad ability by prohibiting grievances for “[i]ncidents or actions
for which there exists a separate internal department appeal or review process as identified by an
6 – OPINION & ORDER
O.A.R. for which an inmate may take part in[.]” O.A.R. 291-109-0140(3)(b). Defendants
maintain that because the outgoing mail restriction rule expressly lacks an internal appeal or
review process, the limitation in O.A.R. 291-109-0140(3) does not apply. Accordingly,
Defendants argue the grievance process was available under O.A.R. 291-109-0140(2), was not
limited by O.A.R. 201-109-0140(3), Plaintiff failed to grieve the restriction, and his failure to do
so results in dismissal under the PLRA.
In response, Plaintiff points to the full text of O.A.R. 291-109-0140(3)(b), which
provides in relevant part: “[i]ncidents or actions for which there exists a separate internal
departmental appeal or review process as identified by an OAR for which an inmate may take
part in; for example, rejection or confiscation of mail[.]” O.A.R. 291-109-0140(3)(b) (emphasis
added). Plaintiff argues that because the limitation specifically cites to the rejection or
confiscation of mail, the grievance rules, when considered with the outgoing mail restriction rule,
are so confusing and “opaque,” as to make the filing of a grievance unavailable.
As noted above, Ross recognized that a grievance process can be practically unavailable
because it is “essentially unknowable” and prevents a prisoner from making sense of it. Ross,
136 S. Ct. at 1859. However, Ross recognized that an inmate’s reasonable mistake about,
misunderstanding of, or disagreement with a prison’s grievance procedure does not meet this
standard. Id. at 1858.
Cases decided after Ross have differentiated between situations where the regulations
were silent and failed to address a particular situation from those where the plaintiff simply had
an unsubstantiated belief that a grievance regulation had a particular meaning. Compare
Williams v. Corr. Officer Priatno, 829 F.3d 118, 123 (2d Cir. 2016) (stating a regulation is “so
7 – OPINION & ORDER
opaque” and “so confusing that . . . no reasonable prisoner can use [it]” when “[t]he regulation
simply do[es] not contemplate the situation”), with Hokenstrom v. N.H. Dep't of Corr., No. 14CV-557-SM, 2016 WL 6989763, at *5 (D.N.H. Nov. 8, 2016) (stating that Plaintiff’s argument
was wrongly “based upon an unsubstantiated belief that complaints about medical issues are
subject to a different grievance procedure than complaints about other conditions of
Plaintiff argues that the distinction between a “rejection,” as contained in the grievance
procedure regulation and a “restriction,” as applied to his Outgoing Mail Restriction, was so
confusing that the grievance remedy was “opaque.” I disagree for two reasons.
First, the grievance procedure regulation says an inmate cannot grieve “[i]ncidents or
actions for which there exists a separate or internal department appeal or review process.”
O.A.R. 291-131-0010(3)(b). Because the Outgoing Mail Restriction expressly states that “the
decision will be final and will not be subject to administrative review,” actions taken regarding
outgoing mail are not exempt from the available grievance remedy process. See O.A.R. 291-1310021(3). Read together, the only reasonable interpretation of the regulations is that an inmate
must grieve an outgoing mail restriction through ODOC’s Inmate Communication and Grievance
Second, the term “rejection” is not the same as “restriction,” and it is not treated as such
by ODOC’s regulations. Both of these types of mail are discussed in O.A.R. 291-131-0037(6)
which refers to the “rejection or confiscation of mail.” That regulation generally addresses the
disposition of prohibited mail when an inmate violates a mail rule. The inmate receives a
violation notice in accordance with the violation committed. O.A.R. 291-131-0037(6)(a) (stating
an inmate receives a “Mail Violation Notice (CD 618a)” for rejected mail); O.A.R. 291-131-
8 – OPINION & ORDER
0037(6)(c) (stating an inmate receives a “Mail Confiscation Notice (CD 618b)” for confiscated
mail). Mail violation notices for rejected or confiscated mail are issued under O.A.R. 291-1310037(6) and an Administrative Review procedure is provided for such notices under O.A.R. 291131-0050(1).
When these regulations are read as a whole, the only reasonable interpretation is that the
phrase “rejection or confiscation of mail” refers to the internal department appeals of mail
violation or mail confiscation violation notices issued under O.A.R. 291-131-0037(6). Because
Plaintiff received an outgoing mail restriction under O.A.R. 291-131-0021, (CD 618d), and not a
mail violation or confiscation notice under O.A.R. 291-131-0037(a) (CD 618a) or O.A.R. 291131-0037(c) (CD 618b), there is no confusion created by the regulations when they are
Plaintiff’s misinterpretation of the regulation is insufficient to prove that a regulation is
so “opaque” that, in a practical sense, it is unavailable. While “[p]risoners should not need a law
degree and an understanding of every corner of [state] statutes and case law to understand what
claims need to be exhausted[,]” Compton v. Cox, No. 12-CV-837-JDP, 2017 WL 933152, at *7
(W.D. Wis. Mar. 8, 2017), these regulations are not so confusing as to make the grievance
process unavailable to the ordinary prisoner.
There is no dispute here that Plaintiff was aware of the grievance procedure and that he
failed to file one. The PLRA requires that his § 1983 claims be dismissed.
Plaintiff’s federal claims are the sole basis for this Court’s subject matter jurisdiction.
The dismissal of those claims leaves only Plaintiff’s claim based on the Oregon Constitution.
Because I have dismissed all claims over which this Court has original jurisdiction, I exercise my
9 – OPINION & ORDER
discretion under 28 U.S.C. § 1367(c)(3) and decline to exercise supplemental jurisdiction over
the Oregon Constitution claim. Therefore, that claim is also dismissed.
Defendants’ Motion for Summary Judgment  is granted. Plaintiff’s Motion for Partial
Summary Judgment  is denied.
IT IS SO ORDERED.
Dated this __________ day of __________________________, 2017.
MARCO A. HERNÁNDEZ
United States District Judge
10 – OPINION & ORDER
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