Opinion
6:21-cv-01246-JR
11-10-2022
RICHARD CHARLES KOHLER, Plaintiff, v. OREGON DEPARTMENT OF CORRECTIONS, CORPORAL HANNON, and OFFICER RODGER TEAL, Defendants.
FINDINGS AND RECOMMENDATION
Jolie A. Russo, United States Magistrate Judge.
Pro se plaintiff Richard Kohler filed this action under 42 U.S.C. § 1983 against three defendants, the Oregon Department of Corrections (ODOC), Corporal Hannon, and Officer Teal. Defendants move for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons set forth below, defendants' motion should be granted in part and denied in part.
BACKGROUND
At all material times, plaintiff was in the custody of ODOC and housed at the Oregon State Penitentiary (OSP). The Amended Complaint alleges that OSP correctional officers sprayed plaintiff with oleoresin capsicum spray (OC spray) on September 11, 2020, and denied his request for a shower until the next day. Am. Compl. 1, ECF 15. It further alleges “the long delay of access to a decontamination shower subjected [p]laintiff to unnecessary and extreme discomfort, pain, and suffering” and “showed deliberate indifference to [his] medical needs.” Id.
The Amended Complaint is unverified, which means that it was filed without a sworn statement declaring, under penalty of perjury, the allegations are true and correct in accordance with 28 U.S.C. § 1746. See Wickizer v. Crim, No. 3:18-CV-01816-AC, 2022 WL 543073, at *1 (D. Or. Feb. 2, 2022), findings and recommendation adopted, 2022 WL 541510 (D. Or. Feb. 23, 2022). As such, the Court may not treat the Amended Complaint as an affidavit opposing the defendants' motion for summary judgment. See id. (citing Lew v. Kona Hosp., 754 F.2d 1420, 1423 (9th Cir. 1985) (an unverified complaint is insufficient to counter a summary judgment motion supported by affidavits)); cf. Schroeder v. McDonald, 55 F.3d 454 (1995) (“A verified complaint may be used as an opposing affidavit under Rule 56.”).
On summary judgment, defendants argue that plaintiff failed to exhaust available administrative remedies before filing his complaint as required by the Prison Litigation Reform Act (PLRA). See 42 U.S.C. § 1997e(a). Defendants contend that plaintiff filed a discrimination complaint and an initial grievance regarding the delay in his decontamination shower, see Mot. 5-7, but plaintiff clarified in his Response that he also filed a grievance appeal. He attached a copy of the document and the response he received from the OSP Grievance Office. See Resp. 12-13, ECF 26. Defendants did not file a Reply. The Court therefore considers the grievance appeal undisputed evidence and finds that plaintiff filed a discrimination complaint, an initial grievance, and a grievance appeal regarding the timing of his decontamination shower.
Plaintiff filed a discrimination complaint on September 22, 2020, and it was received by the OSP Grievance Office on September 29, 2020. Sobotta Decl. Attach. 5, ECF 22. In the complaint, plaintiff stated he was OC sprayed on September 11, 2020, and taken to DSU where he experienced “intense burning” from the spray and requested a shower but “did not receive one for almost 24 hours.” Id. On October 5, 2020, the Grievance Office denied the complaint explaining, “[a] discrimination complaint must include a complete description of the incident . . . and how the AIC believes it has subjected them to discrimination on the basis of race, color, national original, religion, gender, sex, sexual orientation, marital status, age, disability, or familial status.” Id. The response also stated, “[i]f you feel staff did not follow proper procedure, you may file a Grievance for review.” Id.
It is not clear why there is an apparent delay between the dates on which plaintiff contends he signed and submitted his discrimination complaint and his grievance, and the dates on which the OSP Grievance Office marked each document ‘received'. The Court therefore makes note of both dates.
Plaintiff filed a grievance on October 11, 2020, and it was received on October 15, 2020. Id. at Attach. 7. The grievance restated the allegations in the discrimination complaint regarding the delayed shower. Id. On October 20, 2020, the Grievance Office denied the grievance stating: (1) “You have not demonstrated a misapplication of department policies”; (2) “OSP and ODOC Administration are aware there were a number of delays and inconveniences” following an evacuation on September 8, 2020, “[h]owever, emergency protocols were followed and there is no misapplication noted”; and (3) “[y]our grievance is over the provided time to file on the issue.” Id.
Plaintiff appealed OSP's grievance denial in an undated grievance appeal that was received by OSP on November 9, 2020. See Resp. 12, ECF 26. In the grievance appeal, plaintiff contested the Grievance Office's finding of, “no misapplication noted”, stating, “[i]t is my understanding that all AICs get a cold shower after being sprayed”, and asserting, “[d]uring the evacuation event, other AICs who were sprayed at least received hot showers, but I got no shower at all.” Id. Regarding the 14-day rule for filing a grievance, plaintiff explained,
I believe I satisfactorily demonstrated why I couldn't file on time. I asked staff for a grievance form but they gave me a discrimination form instead. I had never grieved anything before and did not know the form was the wrong form. Had it been the right form, it would've been filed on time. I have attached said form. I do not believe I should be held responsible for a staff mistake. I sincerely attempted to follow grievance procedure but was unable to, by no fault of my own.Id. On November 18, 2020, the Grievance Office denied the grievance appeal. Id. at 13. The denial explained that the grievance appeal was being returned to plaintiff due to non-compliance with procedural rules including the bar on appealing a denied grievance and the requirement to sign and date a grievance appeal and to limit the writing to one sentence per line. See id. Plaintiff submitted no further grievance or grievance appeal.
LEGAL STANDARDS
Summary judgment is appropriate if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). On a motion for summary judgment, the court must view the facts in the light most favorable to the non-moving party, and draw all reasonable inferences in favor of that party. Porter v. Cal. Dep't of Corr., 419 F.3d 885, 891 (9th Cir. 2005). The court does not assess the credibility of witnesses, weigh evidence, or determine the truth of matters in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v.Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting First Nat'l Bank of Ariz. v. Cities Serv.Co., 391 U.S. 253, 289 (1968)).
Defendants' motion for summary judgment raises a failure-to-exhaust defense under the Prison Litigation Reform Act (PLRA). See 42 U.S.C. § 1997e(a). Because exhaustion is an affirmative defense, it “must be pled and proved by a defendant.” Albino v. Baca, 747 F.3d 1168, 1172 (9th Cir. 2014) (citing Jones v. Bock, 549 U.S. 199 (2007)). 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. Although the burden of proof remains with the defendant, the defendant is entitled to summary judgment if undisputed evidence viewed in the light most favorable to the inmate shows a failure to exhaust. Id. at 1166, 1174.
DISCUSSION
Plaintiff brings his claim under 42 U.S.C. § 1983:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law[.]
“‘To state a claim under § 1983, a plaintiff must both (1) allege the deprivation of a right secured by the federal Constitution or statutory law, and (2) allege that the deprivation was committed by a person acting under color of state law.'” Gomez v. Peters, No. 2:18-CV-01607-HZ, 2020 WL 7647470 (D. Or. Dec. 23, 2020) (citing Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006)).
Defendants move for summary judgment on plaintiff's deliberate indifference claim, arguing (1) plaintiff failed to exhaust available administrative remedies under the PLRA, see 42 U.S.C. § 1997e(a); and (2) state agencies and state officials sued in their official capacity are not subject to suit under § 1983. Mot. 2, ECF 21.
I. Exhaustion of Administrative Remedies
A. Applicable Law
Exhaustion under the PLRA is mandatory. Woodford v. Ngo, 548 U.S. 81, 85, 90 (2006); 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 administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is mandatory, however, only as long as “administrative remedies . . . are available.” Ross v. Blake, 578 U.S. 632, 642 (2016). “To be available, a remedy must be available as a practical matter; it must be capable of use; at hand.” Albino, 747 F.3d at 1168 (9th Cir. 2014) (en banc) (internal quotation marks omitted). The PLRA's exhaustion requirement mandates “proper” exhaustion of administrative remedies. Woodford, 548 U.S. at 93. Proper exhaustion means that “a prisoner must complete the administrative review process in accordance with the applicable procedural rules, including deadlines, as a precondition to bringing suit in federal court.” Id. at 88.
B. The ODOC Grievance Process
The Oregon Department of Corrections (ODOC) refers to inmates as ‘adults in custody' or AICs and has a three-step grievance and appeal process to address AIC complaints. See OAR 291-109-0100 et seq. Generally, an AIC must file a grievance within fourteen days of the alleged issue or incident being grieved. Id. 291-109-0205(1). A grievance that does not comply with the applicable submission rules will be “returned for correction” to the AIC and may not be appealed. Id. 291-109-0225(2). Instead, the AIC may resubmit the grievance within fourteen days if the errors can be corrected; an AIC is given two opportunities to resubmit a grievance and comply with the submission requirements. Id. If a grievance is accepted, the AIC may appeal any response to the grievance within fourteen days after the response is sent to the AIC. Id. 291-1090205(3). If the appeal is accepted, the AIC may file a second appeal within fourteen days after the appeal response is sent to the AIC. Id. 291-109-0205(5). A decision following a second appeal is final and not subject to further review. Id. 291-109-0235(i). If the AIC can “satisfactorily demonstrate why the grievance could not be timely filed”, id., the AIC may be able to submit an initial grievance or grievance appeal after the fourteen days specified for each type of filing. See id.; see id. at 291-109-225(1) and (3).
C. Plaintiff Did Not Exhaust the ODOC Grievance Process
Here, the record shows that plaintiff did not complete the three-step grievance and appeal process regarding the claim he presents in this action. See OAR 291-109-0100 et seq. Plaintiff filed a discrimination complaint regarding the delayed shower and did not resubmit the form when it was denied. See Sobotta Decl. ¶ 13, ECF 22. Plaintiff next filed a grievance that asserted the same claim, but the Grievance Office denied it on the basis that it was untimely and failed to show how OSP policies had been violated. See id. ¶¶ 14-15, ECF 2. Plaintiff appealed the denied grievance and was informed that a denied grievance cannot be appealed; plaintiff was also informed that he failed to follow procedural rules such as signing and dating the appeal form. Response 12, ECF 26. Plaintiff submitted no further grievance or grievance appeal. Thus, under the applicable regulations, plaintiff failed to carry the grievance process through to the end. The Court finds that plaintiff failed to exhaust available remedies before filing suit as required by the PLRA.
D. The ODOC's Grievance Process Was Effectively Unavailable to Plaintiff
Having found that plaintiff failed to exhaust ODOC's grievance process, the Court turns to whether plaintiff has “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. In the Ninth Circuit, an inmate can show that an administrative process was effectively unavailable by demonstrating that they took “reasonable and appropriate steps to exhaust” but were prevented from doing so, “not through his own fault”, but by the actions of prison officials. Nunez v. Duncan, 591 F.3d 1217, 1224 (9th Cir. 2010). A mistake by prison officials can render such remedies unavailable if the mistake “prevents the inmate from ‘pursuing the necessary sequence of appeals.'” Id. (quoting Sapp, 623 F.3d at 823) (brackets omitted). In Andres v. Marshall, 867 F.3d 1076 (9th Cir. 2017), for example, the Ninth Circuit held that the administrative remedies for the plaintiff's excessive force claim were rendered effectively unavailable because the defendants had improperly failed to process the plaintiff's timely grievance, thereby thwarting the plaintiff's attempt to pursue the grievance process. Id. at 1078-79. Additionally, “an administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a simple dead end-with officers unable or consistently unwilling to provide any relief to aggrieved inmates.” Ross, 578 U.S. at 643.
Here, OSP's grievance procedures were effectively unavailable to plaintiff because he “took reasonable steps to exhaust but was prevented from doing so because of a mistake by prison officials in processing [his] grievance.” Gomez, 2020 WL 7647470, at *1. In Gomez, the plaintiff filed a grievance alleging the defendants had denied him a proper decontamination shower, and prison officials returned the grievance stating it failed to “‘demonstrate[] how it qualifies'” under the applicable rules. Id. However, the “error identified by Defendants was incorrect.” Id. at *5. In fact, the plaintiff had shown “the misapplication of a rule” because ODOC regulations required chemicals agents to be used in accordance with manufacturer's instructions, and the plaintiff alleged they failed to do so. Id. Further, the “Defendants' mistake or improper processing of Plaintiff's grievance prevented Plaintiff from pursuing the necessary sequence of appeals.” Id. The Court therefore held, “[b]ecause Defendants' mistake foreclosed exhaustion, the grievance procedures were effectively unavailable to him.” Id.
Here, the OSP Grievance Office found plaintiff's grievance failed to “demonstrate[] how it qualifies under OAR 291-109-0210” . Sobotta Decl. Attach. 7. However, like the grievance in Gomez, plaintiff's grievance was, in fact, qualified under the applicable rules. At the time plaintiff filed his initial grievance, ODOC rules stated, “[a]n [AIC] receiving a direct application of a chemical agent shall be offered a shower as soon as time and circumstances allows.” OAR 291 plaintiff grieved when he alleged that he was denied a timely decontamination shower. See Segura v. Cherno, No. 6:21-CV-0740-YY, 2022 WL 3587860, at *9 (D. Or. May 25, 2022), report and recommendation adopted, 2022 WL 3586721 (D. Or. Aug. 22, 2022) (a plaintiff who has been OC sprayed and claims prison officials failed to provide proper decontamination supplies and a timely shower is alleging a “failure to provide adequate medical care” and “deliberate indifference to his medical needs”). Thus, “the error identified by [d]efendants was incorrect.” Gomez, 2020 WL 7647470, at 5. In this circumstance, “[w]hen prison officials improperly fail to process a prisoner's grievance,” the Ninth Circuit has found “the prisoner is deemed to have exhausted available remedies.” Andres, 867 F.3d at 1079; see also, Sapp v. Kimbrell, 623 F.3d 813, 824 (9th Cir. 2010) (finding that a grievance procedure may be unavailable where a plaintiff can show that his grievance was improperly denied “for reasons inconsistent with or unsupported by the applicable regs”).
The OSP Grievance Office also failed to consider or respond to plaintiff's reason for filing a late grievance. As plaintiff explains, his grievance was late because he was initially given the wrong form-a discrimination complaint-which he completed and filed before the 14-day deadline. Resp. 3, ECF 26. Plaintiff alleges he had to request a grievance form from a corrections officer and could not retrieve one for himself because he had been placed in DSU after being OC sprayed. Id. When the officer gave plaintiff a discrimination complaint form, he assumed it was a grievance form because that is what he requested and because he was a new AIC who had never filed a complaint or grievance; it was also formatted “to field some kind of complaint” and appeared to be the proper form. Id. Plaintiff therefore submitted the form he had been given within fourteen days of the incident, on September 22, 2020. Id. at 12. By the time the Grievance Office denied the discrimination complaint on October 5, 2020, and made it clear to plaintiff that he had used the wrong form, he was well beyond the 14-day deadline for filing an initial grievance. Id. at 3.
While defendants do not question plaintiff's purported confusion regarding the proper form to use, the Court nevertheless adds that the ODOC discrimination complaint form and grievance form are quite similar in appearance-aside from their different titles. Both forms provide space for an AIC to describe a precipitating “incident” in detail, and both ask the AIC to explain what “resolution” he or she seeks. Notably, the discrimination complaint form does not ask an AIC to describe any discriminatory conduct, it does not list or refer to any types of discrimination such as race or gender, and it only includes the word ‘discrimination' in the title. This makes it even more likely that a reasonable jury would find plaintiff's purported belief that he had been given the correct form both credible and reasonable.
However, the Grievance Office's denial informed plaintiff, “[i]f you feel staff did not follow proper procedure, you may file a Grievance for review.” Sobotta Decl. Attach. 5, ECF 22 (emphasis added). Moreover, the ODOC rules state that the 14-day deadline may be waived where “the AIC can satisfactorily demonstrate why the grievance could not be timely filed”, OAR 291-109-0205(1). Therefore, as plaintiff explains, he “continued to attempt to exhaust the administrative procedures available to him and continue filing grievances and appeals since he could satisfactorily demonstrate why he could not file the correct form on time.” Resp. 3, ECF 26. To that end, plaintiff completed and signed his initial grievance on October 11, 2020, four days after receiving the denial of his discrimination complaint. Sobotta Decl. Attach. 5, ECF 22. It is not clear why plaintiff did not explain the reason for his late-filed grievance in the grievance itself-or whether he was even aware that he was past the deadline. However, as soon as the Grievance Office informed plaintiff his grievance had been denied for lateness, he submitted a grievance appeal in which he explained that he had been given the wrong form and mistakenly filed it instead of a grievance. Resp. 12, ECF 26. In response, the Grievance Office did not acknowledge plaintiff's explanation and failed to indicate whether plaintiff had “satisfactorily demonstrated” why he had filed late. See id. Instead, the denial of plaintiff's grievance appeal informed plaintiff, “a denied initial grievance or appeal cannot be appealed”, which plaintiff interpreted as “a direct order to stop filing grievances.” Id. Plaintiff, therefore, pursued his grievance no further.
Defendants argue that plaintiff failed to send the Grievance Coordinator “a kyte as to why it should be accepted although it was untimely”, Mot. 6, and seem to imply that plaintiff's grievance may have been accepted had he done so. But ODOC rules do not specify how, when, or to whom an AIC is to communicate his reasons for a late-filed grievance, and it is not apparent why plaintiff's explanation could have been considered and, perhaps, accepted in a kyte, but not when communicated through a grievance appeal. The fact that ODOC failed to acknowledge or accept plaintiff's reasonable explanation for filing late also makes it unclear what constitutes a ‘satisfactory' reason for not meeting the 14-day deadline. Given the lack of guidance regarding late-filed grievances, a reasonable jury could find that this aspect of the ODOC grievance system was “so opaque or confusing that it [was] ‘essentially unknowable-so that no ordinary prisoner can make sense of what it demands[.]'” Crum, 2017 WL 1946314, at *3 (citing Ross, 578 U.S. at 644). For that reason, a reasonable jury could also find that ODOC's grievance procedures were, “in a practical sense . . . unavailable.” Id.
In sum, plaintiff “took reasonable steps to exhaust but was prevented from doing so because of a mistake by prison officials[.]” Gomez, 2020 WL 7647470, at *5. The Court acknowledges that an AIC is generally required to “complete the administrative review process in accordance with the applicable procedural rules, including deadlines, as a precondition to bringing suit in federal court.” Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009) (quoting Woodford, 548 U.S. at 88). However, “an inmate is required to exhaust those, but only those, grievance procedures that are ‘capable of use'” Ross, 578 U.S. at 642, and a reasonable jury could find that ODOC's procedures were not capable of use because plaintiff was given the wrong form, his grievance was improperly screened, and the OSP Grievance Office failed to respond to his excuse for filing his grievance late. Defendants do not dispute plaintiff was given the wrong form or that it caused him to file his grievance late. They also fail to acknowledge plaintiff's grievance appeal and offer no explanation as to why OSP denied plaintiff's grievance regarding a delayed decontamination shower when he was clearly asserting a claim for inadequate medical care. Defendants also fail to clarify how an AIC is to “demonstrate satisfactorily” his reasons for a late-filed grievance or grievance appeal or what OSP would accept as a satisfactory excuse. Because a reasonable jury could find that administrative remedies were effectively unavailable to plaintiff, defendants are not entitled to summary judgment based on a failure to exhaust available remedies. See Crum, 2017 WL 1946314, at *4 (recognizing “that a grievance process can be practically unavailable because it is ‘essentially unknowable' and prevents a prisoner from making sense of it”) (citing Ross, 578 U.S. at 644).
II. Proper Defendants for a § 1983 Claim
Defendants argue that ODOC should be dismissed from this suit because “it is not subject to suit in federal court under 42 U.S.C. § 1983.” Mot. 11, ECF 21. It is well-established that state agencies, such as ODOC, are not “persons” within the meaning of § 1983. Will v. MichiganDep't of State Police, 491 U.S. 58, 71 (1989) (holding, “neither a State nor its officials acting in their official capacities are ‘persons' under § 1983”); Battles v. Dep't of Corr., No. 2:19-CV-01727-AC, 2021 WL 2189020, at *5 (D. Or. Mar. 30, 2021), report and recommendation adopted, 2021 WL 2188739 (D. Or. May 28, 2021) (granting the state's partial motion to dismiss the plaintiff's § 1983 claims against ODOC).
Plaintiff does not indicate in what capacity he sues defendants Hannon and Teal. However, to the extent he sues them in their official capacity, those claims cannot survive summary judgment. “[A] suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office. As such, it is no different from a suit against the State itself.” Will, 491 U.S. at 71 (citation omitted). Moreover, the State is not a “person” for purposes of § 1983 liability. Id.
RECOMMENDATION
For the reasons stated herein, defendants' Motion for Summary Judgment (ECF 21) should be denied as to PLRA exhaustion and granted in all other respects. The ODOC should be dismissed as a defendant from this case, and defendants Hannon and Teal are entitled to summary judgment to the extent plaintiff sues them in their official capacity.
This recommendation is 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 the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.