Aplin v. Oregon Department of Corrections et al
Filing
175
OPINION AND ORDER: I DENY Aplin's Motion 156 for Summary Judgment and GRANT State Defendants' Motion 126 for Summary Judgment. Signed on 3/5/19 by Judge Michael W. Mosman. (dls)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION
COLBY LEE APLIN,
No. 6:17-cv-01222-MO
Plaintiff,
OPINION AND ORDER
V.
OREGON DEPARTMENT
OF CORRECTIONS, et al.,
Defendants.
MOSMAN,J.,
Defendants Oregon Department of Corrections ("ODOC"), Brooks, Grendahl, Kile, King,
Mordhorst, Serrano, Wagner, and Peters (collectively "State Defendants") move for summary
judgment on multiple grounds. Plaintiff, Colby Lee Aplin ("Aplin"), also moves for summary
judgment in her favor. For the reasons discussed below, I DENY Aplin's Motion [156] and
GRANT the State Defendants' Motion [126].
BACKGROUND
When she filed her Complaint, Aplin was a prisoner in the custody of the ODOC. [1 at p.
5]. She brings her prose Complaint against State Defendants under 42 U.S.C. § 1983, alleging
that she was sexually assaulted at the Snake River Correctional Institution ("SRCI") "around
2014-2015." [1 at p. 2-3]. Aplin claims the State Defendants failed to investigate a sexual
assault that occurred in 2014 or 2015. [Id. at p. 3]. She alleges they acted with deliberate
indifference to her claims when, instead of investigating, they moved her to a different unit, told
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her to never speak of the sexual assault again, and assigned one of the officers who sexually
assaulted her to monitor her unit. [Id]. Aplin also alleges State Defendants threatened
retaliation against her if she reported the assault and treated her differently because she is, or
identifies as, intersex. [Id. at p. 7].
I dismissed Aplin's claims arising out of the sexual assault itself with prejudice on May
8, 2018, on the grounds the applicable two-year statute of limitations barred these claims. [65].
I declined to dismiss Aplin's other claims arising from the post-assault acts and omissions she
alleges-failure to investigate, deliberate indifference, retaliation, and disparate treatment based
on being, or identifying as, intersex-because State Defendants did not address these claims in
their summary judgment motion. On October 25, 2018, I dismissed the Golem brothers from this
lawsuit without prejudice for failure to serve. [139].
LEGAL STANDARD
Summary judgment is appropriate if there is no genuine dispute of material fact, viewing
the evidence in the light most favorable to the nonmoving party. Fed. R. Civ. P. 56(a). A
genuine dispute of a material fact is "one that could reasonably be resolved in favor of either
party." Ellison v. Robertson, 357 F.3d 1072, 1075 (9th Cir. 2004). The initial burden for a
motion for summary judgment is on the moving party to identify the absence of a genuine issue
of material fact. Celotex Corp. v. Catrett, 477 U.S. 317,323 (1986). Once that burden is satisfied,
the burden shifts to the non-moving party to demonstrate, through the production of evidence, that
there remains a "genuine issue for trial." Id. at 324.
The non-moving party may not rely on the pleading allegations, Brinson v. Linda Rose
Joint Venture, 53 F.3d 1044, 1049 (9th Cir. 1995) (citing Fed. R. Civ. P 56(e)), or "unsupported
conjecture or conclusory statements," Hernandez v. Space labs Med. Inc., 343 F .3d 1107, 1112 (9th
Cir. 2003). All reasonable doubts and inferences to be drawn from the facts are to be viewed in the
2 - OPINION AND ORDER
light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986). The district court should "construe liberally motion papers and
pleadings filed by prose inmates and should avoid applying summary judgment rules strictly."
Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010) (citation omitted). This rule exempts
pro se inmates from strict compliance with the summary judgment rules, but it does not exempt
them from all compliance. Blaisdell v. Frappiea, 729 F.3d 1237, 1241 (9th Cir. 2013). For
instance, prose inmates must still identify evidence supporting their claims. Marrero v. Ives,
682 F.3d 1190, 1192 (9th Cir. 2012) (even if the petitioner's filings were construed liberally, he
still failed to identify evidence supporting his claim).
DISCUSSION
Aplin's Complaint alleges that State Defendants' post-assault conduct violates her rights
under the Fourth, Eighth, and Fourteenth Amendments. State Defendants seek summary
judgment on Aplin' s claims on several grounds. Aplin captioned one of her filings in opposition
to State Defendants' Motion "Plaintiffs [sic] Motion for Summary Judgment and Opposition to
'Defendants' Summary Judgment." Accordingly, I construe Aplin's filing as a response and a
summary judgment motion.
I.
Aplin's Summary Judgment Motion
Aplin's Motion for Summary Judgment [156] does not set forth the grounds on which she
is entitled to judgment as a matter of law. Even construing Aplin's filing liberally, she failed to
meet her burden to identify the absence of a genuine issue of material fact. Celotex, 477 U.S. at
323 (noting the party moving for summary judgment bears the initial burden for a motion of
identifying the absence of a genuine issue of material fact). Accordingly, I deny Aplin's Motion.
Ill
Ill
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II.
State Defendants' Summary Judgment Motion
A. ODOC Cannot be Sued Under Section 1983
State Defendants correctly assert that section 1983 does not allow for lawsuits against
states or state agencies. 42 U.S.C. § 1983; Will v. Mich. Dep 't of State Police, 491 U.S. 58, 71
(1983) (finding states may not be sued under section 1983). State agencies like the ODOC "are
not 'persons"' under section 1983. Gilbreath v. Cutter Biological, Inc., 931 F.2d 1320, 1327
(9th Cir. 1991) (citations omitted) (noting "'arms of the state' such as the Arizona Department of
Corrections are not 'persons' under section 1983). Accordingly, I grant State Defendants'
Motion for Summary Judgment on claims against the ODOC.
B. State Defendants Assert the Two-Year Statute of Limitations Bars
Aplin's Post-Assault Claims
State Defendants assert that any of Aplin's post-assault allegations of failure to
investigate, deliberate indifference, retaliation, and disparate treatment based on being, or
identifying as, intersex that stem from events that happened before August 7, 2015, are time
barred by the two-year statute oflimitations.
The forum state's statute oflimitations for personal injury torts determines the statute of
limitations for a section 1983 claim. Harding v. Galceran, 889 F.2d 906, 907 (9th Cir. 1989).
Oregon has a two-year statute of limitations for personal injury torts. ORS 12.110(1 ). The
statute of limitations begins to run on the date a plaintiffs claim accrues. Lukavsky v. City and
Cty. ofSan Francisco, 535 F.3d 1044, 1048 (9th Cir. 2008). An action "accrues when the
plaintiff knows or has reason to know of the injury that is the basis of the action." Pouncil v.
Tilton, 704 F.3d 568, 574 (9th Cir. 2005).
State Defendants' evidence shows that the threats of retaliation against Aplin for
reporting the sexual assault happened close to the time of the sexual assault, which occurred
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before Aplin was moved from unit 2G on February 3, 2015. 1 Aplin's March 28, 2017, grievance
described the sexual assault and the threat of retaliation for reporting it. [128 at ,r 6, Ex. 2]. Her
appeal of the denial of the March 2017 grievance described the "incidents" as "takin[g] place in
2014-2015." [Id. at Ex. 2, p. 3]. Aplin, however, offers other evidence that puts the threat of
retaliation even earlier, to sometime before January 5, 2015. A letter she wrote to her partner
dated January 4, 2015, and post-marked January 5, 2015, states "[t]he Lt made the threat her
name is Lt. Morhorse." [157 at pp. 7-10; 164 at p. 164 at pp. 2 and 7].
Since Aplin had reason to know of the threat of retaliation when it occurred, the claim
accrued on January 5, 2015, at the latest. Under Oregon law, the statute oflimitations period for
the retaliation claim ended January 5, 2017. The evidence also demonstrates that Aplin did not
file a grievance involving these allegations until March 28, 2017, at the earliest, so the period of
limitations was not tolled while she completed the mandatory exhaustion process. Brown v.
Valoff, 422 F.3d 926, 943 (9th Cir. 2005) (indicating in some circumstances the use of the
mandatory prison grievance process tolls the applicable statute of limitations). I find the
applicable two-year statute of limitations bars Aplin's retaliation claim and grant State
Defendants' Motion for summary judgment on the retaliation claim on that basis.
C. State Defendants Assert Aplin Failed to Exhaust her Remedies for all her
Claims
State Defendants assert they are entitled to summary judgment because Aplin failed to
exhaust her administrative remedies before filing this action. The Prison Litigation Reform Act
("PLRA") requires that prisoners exhaust all available prison administrative remedies before
Aplin alleges the sexual assault occurred while she was housed in unit 2G. [128 at Ex.
2, p. 5]. I found in my May 2018 Order that the uncontested evidence established that the last
day Aplin was housed in unit 2G was February 3, 2015. [65 at p. 5].
1
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filing an action under any federal law. 42 U.S.C. § 1997e(c)(2); McKinney v. Carey, 311 F.3d
1198, 1199 (9th Cir. 2002) (noting prisoners must exhaust administrative remedies before filing
suit, not during the pendency of the action). Exhaustion requires appealing the grievance
decision to the highest level within the grievance system. Wyatt v. Terhune, 315 F .3d 1108,
1120 (9th Cir. 2003). Individuals who are prisoners at the time they file suit must comply with
the PLRA's exhaustion requirements. Talamantes v. Leyva, 575 F.3d 1021, 1024 (9th Cir.
2009).
Prisoners in the ODOC's custody are informed of the process for filing grievances during
an inmate orientation when they first arrive at the prison. [130 at ,r 7]. Information about filing
grievances is also contained in the inmate handbook. [Id]. The ODOC's rules generally require
that prisoners submit grievances within thirty calendar days of the date of the event giving rise to
the grievance. [Id at ,r 1OJ.
1. Failure to Investigate and Deliberate Indifference
State Defendants have submitted evidence showing that none of the four grievances
Aplin filed during her time at SRCI complained of deliberate indifference by assigning an officer
who sexual assaulted her to monitor her or of failure to investigate a sexual assault. [128 at ,r 4].
The only suggestion Aplin made of a failure to investigate a sexual assault was in a May 2017
grievance appeal when she stated that "the investigation should have taken place in 2014-2015
when the incident occurred." [Id at Ex. 2, p. 3]. The initial grievance that she was appealing did
not mention a failure to investigate. [Id at p. 5]. The administrative rules governing grievances,
however, require prisoners to include a "complete description of the incident being grieved" and
do not allow appeals to expand the scope of the grievance. OAR 291-109-0140(1)(b).
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Ms. Aplin declares that she advised a prison official in April 2015 that she was having
sex with staff for money and drugs and that this was a "call for help." [158 at ,r 6]. Even the
most liberal construction of this statement-including the assumption that it qualifies as a
grievance-does not mention either a failure to investigate or deliberate indifference.
Accordingly, I find that the undisputed evidence viewed in a light most favorable to Aplin shows
a failure to exhaust and State Defendants are entitled to summary judgment on her failure to
investigate and deliberate indifference claims.
2. Retaliation
Although the two-year statute oflimitations bars Aplin's retaliation claim, the undisputed
evidence also shows she failed to exhaust this claim. Aplin's March 2017 grievance complained
of being sexually assaulted and receiving a death threat if she reported it. [128 at ,r 6, Ex. 2, p.
5]. SRCI responded on April 20, 2017. [Id. at Ex. 2 p. 4]. If a prisoner is dissatisfied with the
initial response to her grievance, she may appeal the response in a two-level system ofreview.
[130 at ,r 13]. Aplin filed a first appeal, and SRCI responded. [128 at ,r 6 and Ex. 2, p. 4].
Aplin, however, never filed a second appeal. [Id. at ,r 6 and Ex. 2, p. 3]. Because Aplin did not
appeal the response to her March 2017 grievance to the highest level in the ODOC's grievance
system (the second appeal), she has failed to exhaust, and State Defendants are entitled to
summary judgment on this claim on this basis as well.
3. Disparate Treatment Based on Being, or Identifying as, Intersex
State Defendants have submitted evidence showing that Aplin fully exhausted only one
of the multiple grievances or discrimination complaints that she filed regarding being treated
differently because she is, or identifies as, intersex. Regarding the others, Aplin did not appeal
the responses to these grievances and complaints to the highest level in ODOC's grievance
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system. Thus, she did not fully exhaust the grievances regarding the following allegations: (1)
lack of a chromosome test; (2) not being measured for trans gender underwear; (3) not receiving a
female product order form; (4) an unclothed search; (5) wanting to be able to remove her shirt
outside because she is a "gender fluid man;" (6) not being able to take lip gloss outside; (7)
makeup, a search that involved the contents of her bra, and a housing move; and (8) an officer
touching her breast during a pat-down search and being addressed as "he-she." [130 at ,r,r 17-23
and ,r,r 38-31, Exs. 3-7, 9-12; 128 at ,r 5; and 129 at ,r 4]. Accordingly, State Defendants are
entitled to summary judgment on these claims for failure to exhaust.
The only grievance regarding different treatment based on being, or identifying as,
intersex that Aplin exhausted complains about not being allowed to grow out her nails. [130 at
i[28, Ex. 9]. Aplin filed this grievance she was housed at the Oregon State Correctional Institute
("OSCI"), not SRCI. [130 at Ex. 9, p. 2]. The grievance does not allege that any of the
Defendants named in this Complaint were personally involved in preventing her from growing
out her nails. [130 at Ex. 9]. "Liability under [section]1983 arises only upon a showing of
personal participation by defendant." Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989)
(citations omitted). Because there is no allegation that any of the Defendants named in this
action participated in preventing Aplin from growing out her nails, they are entitled to summary
judgment on this claim.
Ill
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Ill
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CONCLUSION
I DENY Aplin's Motion [156] for Summary Judgment and GRANT State Defendants'
Motion [126] for Summary Judgment. I dismiss Aplin's retaliation claim and her claims against
the ODOC with prejudice. I dismiss Aplin's claims for which failure to exhaust provides the
sole basis for granting summary judgment-her claims of deliberate indifference and disparate
treatment based on being, or identifying as, intersex-without prejudice.
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IT IS SO ORDERED.
DATED this ::, day of March 2019.
M~
Chief United States District Judge
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