Bond v. State of Oregon et al

Motion for Summary Judgment .

D. Or.January 19, 2017

Page 1 - STATE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT VAN/cbh/7372882-v1 Department of Justice 1162 Court Street NE Salem, OR 97301-4096 (503) 947-4700 / Fax: (503) 947-4792 ELLEN F. ROSENBLUM Attorney General VANESSA A. NORDYKE #084339 Assistant Attorney General Department of Justice 1162 Court Street NE Salem, OR 97301-4096 Telephone: (503) 947-4700 Fax: (503) 947-4792 Email: Vanessa.A.Nordyke@doj.state.or.us Attorneys for Defendants State of Oregon, Paulson, Sazie, Shelton, Smith, Snider IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON LINDA ANNE BOND, Plaintiff, v. STATE OF OREGON; DR. STEVE SHELTON; DR. ROBERT SNIDER; DR. ELIZABETH SAZIE; BEV SMITH, FNP; DR. REED PAULSON; and JOHN DOES 1-10, Defendants. Case No. 3:16-cv-00648-YY STATE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT CERTIFICATE OF CONFERRAL Pursuant to Local Rule 7-1, state defendants’ counsel certifies that she conferred with counsel for plaintiff. The parties are unable to resolve this matter.1 MOTION State defendants move the Court for an order granting summary judgment in their favor. Eleventh Amendment immunity bars plaintiff’s state law claim. Failure to exhaust administrative remedies bars plaintiff’s federal claim. In support of this motion, state defendants rely on the 1 “State defendants” are Paulson, Sazie, Shelton, Smith, Snider and State of Oregon. Case 3:16-cv-00648-YY Document 12 Filed 01/19/17 Page 1 of 8 Page 2 - STATE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT VAN/cbh/7372882-v1 Department of Justice 1162 Court Street NE Salem, OR 97301-4096 (503) 947-4700 / Fax: (503) 947-4792 memorandum of law below, the Declarations of Lisa Arrington and Vanessa A. Nordyke, and excerpts from plaintiff’s and Arrington’s deposition. MEMORANDUM OF LAW I. SUMMARY JUDGMENT STANDARD Summary judgment is appropriate when there exists no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The purpose of summary judgment is to “pierce the pleadings and assess the proof in order to see whether there is a genuine need for trial.” Matsushita, 475 U.S. at 586, n. 11. The moving party must show the absence of a genuine dispute as to a material fact. Emeldi v. Univ. of Or., 673 F.3d 1218, 1223 (9th Cir. 2012). In response to a properly supported motion for summary judgment, the nonmoving party must go beyond the pleadings and point to "specific facts demonstrating the existence of genuine issues for trial.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) “This burden is not a light one * * * The non-moving party must do more than show there is some ‘metaphysical doubt’ as to the material facts at issue.” Id. (citation omitted). The test is whether a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A scintilla of evidence, or evidence that is merely colorable or not significantly probative, does not present a genuine issue of material fact. United Steelworkers of America v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir.), cert. denied, 493 U.S. 809 (1989). Subjective belief — speculation — is also insufficient. Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th Cir. 1983); Schuler v. Chronicle Broadcasting Co., 793 F.2d 1010, 1011 (9th Cir. 1986). II. ELEVENTH AMENDMENT IMMUNITY FOR STATE LAW CLAIM Under the Eleventh Amendment, federal courts may not entertain a lawsuit brought by a citizen against a state, its agencies, or departments without the state’s consent. Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996); Pennhurst State School & Hosp. v. Halderman, 465 U.S. Case 3:16-cv-00648-YY Document 12 Filed 01/19/17 Page 2 of 8 Page 3 - STATE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT VAN/cbh/7372882-v1 Department of Justice 1162 Court Street NE Salem, OR 97301-4096 (503) 947-4700 / Fax: (503) 947-4792 89, 100 (1984). A state waives its sovereign immunity by expressly consenting to be sued in a particular action. Edelman v. Jordan, 415 U.S. 651, 673 (1974) (“we will find waiver only where stated by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction”). “Although the State of Oregon has consented to be sued in Oregon courts for the torts committed by its employees, officers, or agents while acting within the course and scope of their employment under the [Oregon Tort Claims Act], it has not consented to be sued in federal courts for those torts.” Blair v. Toran, 1999 WL 1270802, at *23 (D. Or. Dec. 2, 1999), affirmed 12 Fed. Appx. 604 (9th Cir. June 25, 2001). Here, plaintiff alleges a state law claim of “negligence: medical malpractice”. Dkt # 1, Complaint, ¶ 24-33. Pursuant to the Oregon Tort Claims Act, individually-named defendants must be dismissed from a plaintiff’s state law claim and the State of Oregon should be substituted in their place. See ORS 30.265(1) (the “sole cause of action for any tort of officers, employees or agents of a public body acting within the scope of their employment or duties . . . shall be an action against the public body only.”); Demaray v. Dept. of Environmental Quality, 127 Or. App. 494, 502 (1994).2 Plaintiff has named State of Oregon as well as several individually named defendants. Plaintiff state law claim can only be brought against the State of Oregon and should be dismissed based on the Eleventh Amendment. III. FAIULRE TO EXHAUST ADMINISTRATIVE REMEDIES FOR § 1983 CLAIM 1. The Prison Litigation Reform Act’s (PLRA) exhaustion requirement. The PLRA, 42 U.S.C. § 1997e(a), requires an inmate to exhaust all administrative remedies before filing a 42 U.S.C. § 1983 action. Porter v. Nussle, 534 U.S. 516, 531-32 (2002). Section 1997e(a) states that “no action shall be brought with respect to prison conditions * * * until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). For 2 Effective January 1, 2012, ORS 30.265(4) was modified to allow individuals to be named if damages exceeded the amounts as set forth under ORS 30.271-.273. Plaintiff has not given a dollar figure for his damages. Dkt # 1, Complaint, p. 10. Case 3:16-cv-00648-YY Document 12 Filed 01/19/17 Page 3 of 8 Page 4 - STATE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT VAN/cbh/7372882-v1 Department of Justice 1162 Court Street NE Salem, OR 97301-4096 (503) 947-4700 / Fax: (503) 947-4792 purposes of the PLRA, actions brought with respect to “prison conditions” include actions brought to challenge isolated instances of unconstitutional or unlawful conduct, as well as petitions challenging conditions of confinement. See Porter, 534 U.S. at 532. Furthermore, courts lack discretion to entertain such actions, including claims for money damages, unless the claim is filed following the complete exhaustion of available administrative remedies, without regard to the nature of available administrative remedies. Id. at 524 (citing Booth v. Churner, 532 U.S. 731, 739, 740 n. 5, 741 (2001)). Prisoners “must pursue a remedy through a prison grievance process as long as some action can be ordered in response to the complaint.” Brown v. Valoff, 422 F.3d 926, 934 (9th Cir. 2005) (citing Booth, 532 U.S. 731) (emphasis in original). 2. The Albino v. Baca summary judgment standard for exhaustion issues. Exhaustion of administrative remedies is an affirmative defense properly raised by a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. Albino v. Baca, No. 10-55702, slip op. at 10 (9th Cir. April 3, 2014). If the 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 4-5. If there are disputed issues of fact that preclude summary judgment on the issue of exhaustion, those factual disputes should be resolved by a court—not a jury—in the same manner that a court would decide disputed factual questions relevant to jurisdiction or venue. Id. at 14. The defense of exhaustion should be decided “before reaching the merits of a prisoner’s claim.” Id. 3. The PLRA requires exhaustion of administrative remedies. The PLRA requires inmate litigants to exhaust all available administrative remedies before filing an action under any federal law. Porter v. Nussle, 534 U.S. 516, 524 (2002); 42 U.S.C. § 1997e(a) (“no 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”). That requirement is “mandatory” and a “prerequisite” to filing an action. Woodford v. Ngo, 548 Case 3:16-cv-00648-YY Document 12 Filed 01/19/17 Page 4 of 8 Page 5 - STATE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT VAN/cbh/7372882-v1 Department of Justice 1162 Court Street NE Salem, OR 97301-4096 (503) 947-4700 / Fax: (503) 947-4792 U.S. 81, 85 (2006); Booth v. Churner, 532 U.S. 731, 736 (2001). The requirement that an inmate must exhaust all administrative remedies before filing an action under federal law includes appealing a grievance decision to its highest level within the grievance system. See Jones v. Bock, 549 U.S. 199, 218-19 (2007). Even if an inmate litigant seeks remedies—like monetary damages—that are unavailable through the administrative process, administrative remedies must be exhausted. Woodford, 548 U.S. at 85. The exhaustion requirement serves several functions, not the least of which is to help “reduce the quantity and improve the quality of prisoner suits.” Porter, 534 U.S. at 524. It also allows corrections officials to engage in corrective action that could obviate the need for litigation, and provides an administrative record useful to litigation. Id. at 525. Put simply, the exhaustion requirement “serves the twin purposes of protecting administrative agency authority and promoting judicial efficiency.” Albino, slip op. at 12 (citing McCarthy v. Madigan, 503 U.S. 140, 145 (1992), superseded by statute on other grounds as stated in Booth v. Churner, 535 U.S.731, 740-41 (2001)). ODOC’s internal grievance system, codified at OAR 291-109-0100 to 291-109-0190, serves both of those purposes. An ODOC inmate may grieve: a-b) the misapplication or lack of any administrative directive or operational procedure; c) unprofessional behavior or action which may be directed toward an inmate by an employee, contractor, or volunteer; d) any oversight or error affecting an inmate; e) program failure unless it is a direct result of a misconduct report where the inmate is found in violation; f) loss or destruction of property; and g) sexual contact, solicitation, or coercion between an employee or contractor and an inmate; and h) sexual abuse by another inmate. [Arrington Decl., ¶ 5, Att. 2]. ODOC’s grievance system includes two levels of appeal. First, an inmate may appeal any grievance response to the functional unit manager. [Id. at ¶ 6]. And second, an inmate may appeal the decision made by the functional unit manager by completing a Grievance Appeal form (CD 117c) and filing it with the grievance coordinator within 14 days of the date that the first grievance appeal response was sent to the inmate. [Id. at Case 3:16-cv-00648-YY Document 12 Filed 01/19/17 Page 5 of 8 Page 6 - STATE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT VAN/cbh/7372882-v1 Department of Justice 1162 Court Street NE Salem, OR 97301-4096 (503) 947-4700 / Fax: (503) 947-4792 ¶ 7]. The Assistant Director’s or designee’s decision on an inmate’s grievance appeal is final and is not subject to further review. [Id.] To obtain a grievance review, the functional unit grievance coordinator must receive an inmate’s grievance within 30 calendar days of the date of the incident giving rise to the grievance. OAR 291-109-0150(2)(a). An inmate may file a grievance past the 30 days of the incident if the inmate can demonstrate why the grievance could not be filed within the timelines established by rule; i.e., physical incapacity, etc. OAR 291-109-0150(2)(a). 4. Plaintiff failed to exhaust administrative remedies for her § 1983 claim. Plaintiff alleges one claim of deliberate indifference to a serious medical need (inadequate medical care for a kidney stone) between December 17, 2013 and her kidney surgery on December 24, 2014. Dkt # 1, Complaint, ¶ 13-23, 34-41. Inadequate medical care is “grievable” under ODOC’s grievance review process, as set forth in Oregon Administrative Rules Chapter 291-109. Decl. Arrington, ¶ 11; see also Decl. Nordyke, Att. B, Arrington Depo, 24:9-21. Grievance forms are available on all housing units. Arrington Depo, 21:2-3. The grievance rules (OAR 291-109) are available in the law library. Arrington Depo, 21:12-13. The grievance process is explained during inmate orientation. Arrington Depo, 21:15-16. Grievance mailboxes are routinely checked by the Grievance Coordinator, Lisa Arrington. Arrington Depo, 21:7-11. Inmates may send inmate communication forms, also known as “kites”, to ask questions about the grievance process. Arrington Depo, 21:14-15. Inmates “often” contact Arrington with questions about the grievance process, but Arrington has no recollection of plaintiff ever doing so. Arrington Depo, 10: 10-11, 11:6-14. There is no dispute that plaintiff did not file grievances against any ODOC personnel before the surgery. Decl. Nordyke, Att. A, Bond Depo, 81:21. There is no dispute that, after surgery, plaintiff filed a grievance concerning medical care of her kidney stone and identified the date of the incident as December 24, 2014. Decl. Arrington ¶ 13, citing Att. 4; see also Bond Depo, 146: 4 (identifying grievance as Deposition Case 3:16-cv-00648-YY Document 12 Filed 01/19/17 Page 6 of 8 Page 7 - STATE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT VAN/cbh/7372882-v1 Department of Justice 1162 Court Street NE Salem, OR 97301-4096 (503) 947-4700 / Fax: (503) 947-4792 Exhibit 104). Under the grievance rules, the functional unit grievance coordinator must receive an inmate’s grievance within 30 calendar days of the date of the incident giving rise to the grievance. OAR 291-109-0150(2)(a). The 30-day deadline is also articulated in the Inmate Handbook. Arrington Depo, Exhibit 5, p. 4. ODOC received plaintiff’s grievance on March 10, 2015. Decl. Arrington, ¶ 12. ODOC Grievance Coordinator Lisa Arrington denied plaintiff’s grievance, because ODOC received it after the 30-day deadline under OAR 291-109-0150(2). Id. at ¶ 13. Plaintiff recalls Arrington denying the grievance on this basis. Bond Depo, 147:18. Plaintiff did not complete the grievance review process for her grievance. Decl. Arrington, ¶ 14. Therefore, plaintiff failed to exhaust administrative remedies for her claim of deliberate indifference. Plaintiff may argue that she could not grieve, because she feared retaliation if she filed a grievance. Bond Depo, 83:9-11. Plaintiff is not credible because, if she truly feared retaliation for filing grievances, then she would not have filed a grievance at any time. What’s more, her grievance makes no mention of fear of retaliation or other excuse for failing to timely grieve. See Decl. Arrington, Att. 4. Inmates may file untimely grievances if they can “demonstrate why the grievance could not be filed within the timelines[.]” OAR 291-109-0150(2)(a): “An inmate may file a grievance past the 30 days of the incident if the inmate can demonstrate why the grievance could not be filed within the timelines established by rule; i.e., physical incapacity, etc.” Plaintiff failed to avail herself of this opportunity to explain her concerns about retaliation. In sum, plaintiff failed to exhaust administrative remedies for her claim of deliberate indifference. Her claim of deliberate indifference should be dismissed. Case 3:16-cv-00648-YY Document 12 Filed 01/19/17 Page 7 of 8 Page 8 - STATE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT VAN/cbh/7372882-v1 Department of Justice 1162 Court Street NE Salem, OR 97301-4096 (503) 947-4700 / Fax: (503) 947-4792 IV. CONCLUSION Eleventh Amendment immunity bars plaintiff’s state law claim. Plaintiff did not exhaust administrative remedies for her federal claim. State defendants are entitled to summary judgment in their favor and should be dismissed from this action. DATED January 19 , 2017. Respectfully submitted, ELLEN F. ROSENBLUM Attorney General s/ Vanessa A. Nordyke VANESSA A. NORDYKE #084339 Assistant Attorney General Trial Attorney Tel (503) 947-4700 Fax (503) 947-4792 Vanessa.A.Nordyke@doj.state.or.us Of Attorneys for Defendants Paulson, Sazie, Shelton, Smith, Snider and State of Oregon Case 3:16-cv-00648-YY Document 12 Filed 01/19/17 Page 8 of 8