Opinion
2:22-CV-1048-YY
03-06-2023
ENRIQUE DIAZ, Plaintiff, v. M. TESTER and A. BLANCO, Defendants.
FINDINGS AND RECOMMENDATIONS
Youlee Yim You, United States Magistrate Judge
FINDINGS
Pro se plaintiff Enrique Diaz, an adult in the custody of Oregon Department of Corrections, brings this civil rights action under 42 U.S.C. § 1983 against two corrections officers, M. Tester and A. Blanco. Plaintiff alleges that defendants used excessive force against him in violation of his Eighth Amendment rights.
Defendants have filed a motion for summary judgment (ECF 22), arguing that this case should be dismissed for plaintiff's failure to exhaust his claims pursuant to the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). Because plaintiff has not exhausted his administrative remedies, defendants' motion for summary judgment (ECF 22) should be GRANTED and this case should be dismissed without prejudice.
I. Legal Standards
A. Summary Judgment
Under Federal Rule of Civil Procedure 56(a), “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” The party moving for summary judgment bears the initial responsibility of informing the court of the basis for the motion and identifying portions of the pleadings, depositions, answers to interrogatories, admissions, or affidavits that demonstrate the absence of a triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party does so, the nonmoving party must “go beyond the pleadings” and “designate ‘specific facts showing that there is a genuine issue for trial.'” Id. at 324 (citing Fed.R.Civ.P. 56(e)).
In determining what facts are material, the court considers the underlying substantive law regarding the claims. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). Otherwise stated, only disputes over facts that might affect the outcome of the suit preclude the entry of summary judgment. Id. A dispute about a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Id. at 248-49. A “scintilla of evidence” or “evidence that is merely colorable or not significantly probative” is insufficient to create a genuine issue of material fact. Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). The court “does not weigh the evidence or determine the truth of the matter, but only determines whether there is a genuine issue for trial.” Balint v. Carson City, Nev., 180 F.3d 1047, 1054 (9th Cir. 1999). “Reasonable doubts as to the existence of material factual issue are resolved against the moving parties and inferences are drawn in the light most favorable to the non-moving party.” Addisu, 198 F.3d at 1134 (citation omitted).
B. Pro Se Pleading Standard
Federal courts hold a pro se litigant's pleadings to “less stringent standards than formal pleadings drafted by lawyers.” Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987). “Although . . . pro se litigant[s] . . . may be entitled to great leeway when the court construes [their] pleadings, those pleadings nonetheless must meet some minimum threshold in providing a defendant with notice of what it is that it allegedly did wrong.” Brazil v. U.S. Dep't of Navy, 66 F.3d 193, 199 (9th Cir. 1995). Moreover, on a motion for summary judgment, a pro se party involved in civil litigation “should not be treated more favorably than parties with attorneys of record.” Jacobsen v. Filler, 790 F.2d 1362, 1364 (9th Cir. 1986). “It is not the district court's job to sift through the record to find admissible evidence in support of a non-moving party's case.” Claar v. BurlingtonN.R.R., 29 F.3d 499, 504 (9th Cir. 1994) (quoting Celotex, 477 U.S. at 324). Simply put, in areas “where [a] plaintiff does not identify specific evidence in the record to support his assertions, the Court is not required to search for it.” Woodroffe v. Oregon, No. 2:12-CV-00124-SI, 2015 WL 2125908, at *2 (D. Or. May 6, 2015), aff'd sub nom. Woodroffe v.Kulongoski, 745 Fed.Appx. 728 (9th Cir. 2018).
II. Plaintiff's Claim
In his Complaint, plaintiff asserts an excessive force claim against defendants based on an incident that allegedly occurred while he was housed at Eastern Oregon Correctional Institution (“EOCI”):
On 12/5/21 at [EOCI], while being escorted to Disciplinary Segregation, M. Tester and A. Blanco used excessive force on me [when] I was doing nothing wrong but trying to walk to Disciplinary Segregation which resulted in damage to my ribs.Compl. 5, ECF 2. Based on those factual allegations, plaintiff asserts a claim under 42 U.S.C. § 1983 alleging that defendants violated his rights under the Fourth Amendment. Id. Defendants argue that they are entitled to summary judgment because plaintiff failed to “fully and properly” exhaust his administrative remedies regarding his claim as required by the PLRA. Mot. 7, ECF 22.
III. PLRA Exhaustion
The PLRA requires an inmate or adult in custody (“AIC”) to exhaust all available administrative remedies before filing a federal action to redress prison conditions or incidents. See 42 U.S.C § 1997e(a) (“[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a[n AIC] confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted”); see also Porter v. Nussle, 534 U.S. 516, 532 (2002) (holding “the PLRA's exhaustion requirement applies to all [AIC] suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong”).
The exhaustion requirement is mandatory and requires compliance with both procedural and substantive elements of the prison administrative process. Woodford v. Ngo, 548 U.S. 81, 85, 90 (2006); McKinney v. Carey, 311 F.3d 1198, 1199-1200 (9th Cir. 2002) (per curiam). However, exhaustion is mandatory only as long as “administrative remedies . . . are available.” Ross v. Blake, 578 U.S. 632, 648 (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) (simplified).
Exhaustion is an affirmative defense “that must be pled and proved by a defendant.” Id. at 1168. The defendant has the initial burden to prove that “there was an available administrative remedy, and that the [AIC] did not exhaust that available remedy.” Id. at 1172. If the defendant can establish the plaintiff's failure to exhaust, 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. The Supreme Court has recognized 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 AICs; (2) when the process is so opaque or confusing that “no ordinary [AIC] can discern or navigate it” and “no reasonable [AIC] can use them”; and (3) when prison officials thwart AICs from using the process through machination, misrepresentation, or intimidation. Ross, 578 U.S. at 643-44 (simplified).
IV. Analysis
The Oregon Department of Corrections (“ODOC”) has a three-step grievance process to address AIC complaints. Sobotta Decl. ¶¶ 7-20, ECF 23 (citing OAR 291-109-0100 et seq). First, “[g]rievances must be received by the institution grievance coordinator or designee within 14 calendar days from the date of the incident or issue being grieved, unless the AIC can satisfactorily demonstrate why the grievance could not be timely filed.” OAR 291-109-0205(1). “Untimely grievances will be denied and returned to the AIC with a statement of the rule.” Id. Next, “[i]nitial appeals must be received by the institution grievance coordinator or designee within 14 calendar days from the date the initial grievance response was sent to the AIC,” and lastly, “[f]inal appeals must be received by the institution grievance coordinator or designee within 14 calendar days from the date the initial appeal response.” OAR-291-109-0205(3), (5). Instructions for filing a grievance, including the 14-day deadline for submitting a grievance, are located on the reverse side of the grievance form. OAR 291-109-0220(1)(a); Sobotta Decl., Ex. 5, ECF 23, at 21.
Here, plaintiff submitted a grievance (Grievance No. EOCI-2022-01-53) dated January 3, 2022, in which he alleged that, on December 5, 2021, defendant Tester told him to “shut up” and “be quiet” after plaintiff cursed at him, and defendant A. Blanco “put [him] up to the railing on the unit flight of stairs very roughly and hurt his rib cage.” See Sobotta Decl., Ex. 10, ECF 23 at 39. Plaintiff's grievance was not received by the grievance office until January 7, 2022, and denied because it was untimely, Id. ¶ 30, i.e., with the explanation that it was submitted “over 14 days” when it “should have been received by 12/19/21.” Id., Ex. 10. Therefore, defendants have met their initial burden of showing that plaintiff failed to exhaust existing and available administrative remedies. See Albino, 747 F.3d at 1166.
The burden then shifts to plaintiff to show that he failed to exhaust the available administrative remedies for his claim because “there is something in his particular case that made the existing and generally available administrative remedies effectively unavailable to him.” Id. at 1172. Plaintiff argues that he failed to file his grievance on time because he thought he had “at least 30 days to file a grievance to exhaust [his] administrative remedies.” Resp. 7, ECF 26. The Supreme Court has recognized that a grievance process can be practically unavailable because it is “essentially unknowable” and prevents an AIC from making sense of it. Ross, 578 U.S. at 643-44. However, plaintiff has not explained why he thought he had “at least 30 days” to file a grievance where the applicable rules clearly state that an AIC must file a grievance within 14 days of the incident in question unless the AIC can “satisfactorily demonstrate why the grievance could not be timely filed.” OAR 291-109-0205(1). As defendants explain, plaintiff was “well acquainted” with ODOC's grievance system and attended the Admission and Orientation (“A&O”) class on May 6, 2020, at EOCI. Reply 2, ECF 30. Defendants also provided evidence of multiple grievances that plaintiff filed prior to December 2021 to demonstrate his familiarity with the grievance system. See Sobotta Decl., Ex. 9, ECF
Notably, plaintiff does not contend that he was unable to file a grievance due to the injuries he allegedly suffered from defendants. In his response, plaintiff describes his attempts to obtain an x-ray of his ribs, but explains he was told that his ribs were “probably bruised” and not broken, and ibuprofen was recommended. Resp., ECF 26, at 1, 2. Plaintiff appears to believe it was necessary for him to get an x-ray to “prove” his injury and exhaust his administrative remedies. Id. at 4. The pertinent administrative rule makes clear, however, that a grievance must be received “14 calendar days from the date of the incident or issue being grieved.” OAR 291-1090205(1). Here, the incident date was December 5, 2021, but plaintiff did not submit his grievance until January 7, 2022. Also, it is notable that plaintiff filed another untimely grievance on the same date, January 7, 2022, relating to a separate issue involving the return of property. With respect to that untimely grievance, plaintiff stated, “I thought I had as long as I needed” and said nothing about being unable to file a timely grievance due to medical reasons.
Plaintiff does not dispute that he attended at least one A&O class prior to filing his late grievance on January 3, 2022-or that he filed at least ten grievances before the alleged incident in December 2021. See Sobotta Decl., Ex. 9 at 1, ECF 23. Because plaintiff clearly availed himself of ODOC's grievance procedures prior to December 2021, this refutes his assertion that he was not “learned” regarding those procedures, Resp. 6, ECF 26, or that ODOC's grievance system was “essentially unknowable.” See Ross, 578 U.S. at 643-44. There is no evidence that any ODOC or EOCI employee misinformed plaintiff regarding the timeline for filing an initial grievance, or any evidence that he or any other AIC had filed grievances past the 14-day deadline that were accepted as timely. At most, plaintiff's claim amounts to a misunderstanding of the correct timeline for filing a grievance, but such a mistake does not excuse his failure to exhaust ODOC's available administrative remedies. See Floyd v. Watkins, No. 2:14-CV-01775-SB, 2015 WL 5056036, at *6 (D. Or. Aug. 25, 2015) (noting that the plaintiff filed an untimely grievance and finding, on that ground, that he failed to exhaust his administrative remedies). As the Supreme Court has held, “a[n AIC] must complete the administrative review process in accordance with the applicable procedural rules, including deadlines, as a precondition to bringing suit in federal court.” Woodford, 548 U.S. at 88.
The denial form is dated November 24, 2022. Sobotta Decl., Ex. 10, ECF 23, at 40. Defendants have proffered no explanation as to why the denial form is dated so long after the grievance form was received or why the grievance form is stamped “received” January 7, 2022, and “denied” January 7, 2021. Id., ECF 23, at 40. The administrative rules require a grievance response to be sent to the AIC within 35 calendar days from the date the grievance was accepted, unless further review is necessary to fully respond to the grievance. OAR 291-109-0205. Regardless, plaintiff's grievance was untimely, and he has not “satisfactorily demonstrate[d] why the grievance could not be timely filed.” OAR 291-109-0205(1).
In sum, plaintiff has not shown that “there is something in his particular case that made the existing and generally available administrative remedies effectively unavailable to him.” Albino, 747 F.3d at 1172. Defendants are therefore entitled to summary judgment. See Floyd, 2015 WL 5056036 at *6 (granting the defendants summary judgment where the plaintiff failed to exhaust available administrative remedies and failed to “offer any evidence to explain his failure to exhaust his claims, or that his attempts to do so were impeded”); cf. Maggio v. Shelton, No. 2:14-CV-01682-SI, 2016 WL 756561, at *8 (D. Or. Feb. 25, 2016) (finding the plaintiff's “grievance was improperly screened as untimely,” and therefore excusing his failure to exhaust available remedies on that ground, and denying the defendants summary judgment). The Ninth Circuit has held that the dismissal of claims due to the failure to exhaust under these circumstances must be without prejudice. See Lira v. Herrera, 427 F.3d 1164, 1170 (9th Cir. 2005) (“[A] district court must dismiss a case without prejudice ‘when there is no presuit exhaustion,' even if there is exhaustion while suit is pending.”).
V. ODOC as Defendant
Defendants argue that ODOC is entitled to summary judgment based on sovereign immunity. Mot. 3. Plaintiff responds that he “was aware that [he] cannot bring a suit against ODOC in federal court,” and clarifies that “[he is] bringing suit against the individuals only[.]” Resp. 5, ECF 26. Defendants' argument is therefore moot and there is no need to address it further.
VI. New Claim Regarding Denial of X-Ray
In his response, plaintiff appears to assert an additional claim that he repeatedly requested an x-ray of his ribcage after the alleged incident on December 5, 2021, but was denied for “57 days.” Resp. 4, ECF 26. The complaint does not contain that claim or any factual allegations that would have given defendants notice of a claim alleging inadequate medical care. See Compl., ECF 2. Plaintiff cannot raise a new claim for relief in response to a motion for summary judgment, and the court will not consider any new claim to the extent plaintiff asserts one. See Updike v. Multnomah Cnty, 870 F.3d 939, 954-55 (9th Cir. 2017) (the allegations in the complaint itself must give the defendant fair notice of what the plaintiff's claim is); Pickern v.Pier 1 Imports, Inc., 457 F.3d 963, 968-69 (9th Cir. 2006) (a party may not raise new claims in response to a motion for summary judgment where the plaintiff's complaint failed to “give the defendant fair notice of what the plaintiff's claim is and the grounds upon which [it] rests” as required by Rule 8(a)(2)).
RECOMMENDATIONS
Defendants' motion for summary judgment (ECF 22) should be GRANTED and plaintiff's claims should be dismissed without prejudice.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Thursday, April 06, 2023. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.
NOTICE
These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.