Opinion
3:22-cv-01105-CL
12-20-2023
TYRONE ALLEN, an individual, Plaintiffs, v. DR. PLATAS, et al, Defendants.
FINDINGS AND RECOMMENDATION
MARK D. CLARKE, UNITED STATES MAGISTRATE JUDGE
Plaintiff Tyrone Allen brings this action against Defendants Angelina Platas, M.D. and . Halcyon Dodd, RN, from whom he received treatment while incarcerated in the Multnomah County Jail. Defendants move for summary judgment on all claims. For the reasons below, Defendants motion (#21) should be GRANTED.
LEGAL STANDARD
Summary judgment shall be granted when the record shows that there is no genuine dispute as to any material of fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The moving party has the initial burden of showing that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). The court cannot weigh the evidence or determine the truth but may only determine whether there is a genuine issue of fact. Playboy Enters., Inc. v. Welles, 279 F.3d 796, 800 (9th Cir. 2002). An issue of fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248.
When a properly supported motion for summary judgment is made, the burden shifts to the opposing party to set forth specific facts showing that there is a genuine issue for trial. Id. at 250. Conclusory allegations, unsupported by factual material, are insufficient to defeat a motion for summary judgment. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposing party must, by affidavit or as otherwise provided by Rule 56, designate specific facts which show there is a genuine issue for trial. Devereaux, 263 F.3d at 1076. In assessing whether a party has met its burden, the court views the evidence in the light most favorable to the nonmoving party. Allen v. City of Los Angeles, 66 F.3d 1052,1056 (9th Cir. 1995).
DISCUSSION
Defendants filed a motion for summary judgment (#21) on May 19, 2023. On May 23, 2023, the Court sent Plaintiff a Summary Judgment Advice Notice (#24), as required by the rules and policies of the Ninth Circuit. On July 27, 2023, the Court entered the following order:
ORDER: Plaintiffs response to Defendants' Motion for Summary Judgment (#21) was due on 6/22/2023. To date, Plaintiff has not . filed a response, nor has he requested an extension of time in which to do so. Plaintiff thus is ordered to show cause in writing by - 8/17/2023 why Defendants' summary judgment motion should not be granted. If Plaintiff fails to do so, the Court will take the summary judgment motion under advisement on the record as it stands. Ordered by Magistrate Judge Mark D. Clarke.CM/ECF Minute Order (#25). Nothing has been filed by the Plaintiff, either in response to the motion for summary judgment, or in response to the Order to Show Cause. Nevertheless, the Court has reviewed Plaintiffs Complaint (#1) and all of his other submissions and filings with the Court in order to fairly evaluate his case and the motion for summary judgment.
Based on the record before the Court, Plaintiffs claims are barred by the Prison Litigation Reform Act (“PLRA”). A prisoner under the PLRA is “any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for ... violations of criminal law or the terms of parole, probation, pretrial release, or diversionary program.” 42 U.S.C. § 1997e(h). If a prisoner had an opportunity to file a timely grievance under jail policies but failed to do so, they have not exhausted as required by the PLRA. Marella v. Terhune, 568 F.3d 1024,1028 (9th Cir. 2009). The PLRA requires exhaustion even where the relief sought in the lawsuit - i.e. money damages - is unavailable through the administrative process. Id. A court may not excuse a failure to exhaust and must dismiss if the administrative process was available, or “capable of use.” Ross, 136 S.Ct. at 1856-1857 (2016). The PLRA's exhaustion requirement means “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." Woodford, 528 U.S. at 88. The exhaustion requirement is mandatory and requires compliance with, both procedural and substantive elements of the prison administrative process. Id. at 85, McKinney v. Carey, 311 F.3d 1198, 1199-1200 (9th Cir. 2002) (per curiam).
If defendants offer evidence that there was an available administrative remedy and that the prisoner did not properly and timely exhaust that remedy, the burden shifts to the plaintiff who must demonstrate something particular in his case that made the existing and generally available administrative remedies effectively unavailable. Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015). A defendant satisfies its burden through witnesses with knowledge that there was an available administrative remedy, and that the prisoner did not exhaust that remedy. Id. An exhaustion affirmative defense is properly the subject of a motion for summary judgment. Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014).
Here, Plaintiff did not exhaust under the PLRA. Plaintiffs claims in this case arise out of allegations regarding the medical treatment he received while incarcerated in the Multnomah County Jail. The record evidence shows Multnomah County's grievance procedure was available to him, and he did file multiple grievances regarding his dissatisfaction with the medical treatment he received. The record also shows Multnomah County's administrative procedure required Mr. Allen to appeal any grievance to exhaust. The procedure provides for an appeal on . the form, and in one case Correctional Health staff explained to Mr. Allen he had the right to appeal. Plaintiff did not appeal any of his grievances. His failure to do so bars any claims under the PLRA. Plaintiff has also failed to carry his burden at the summary judgment stage, and he has failed to prosecute his claims against the defendants despite an order to show cause. For all of these reasons, summary judgment should be granted for the Defendants.
RECOMMENDATION
For the reasons above, Defendants' motion for summary judgment (#21) should be GRANTED. Judgment should be entered on behalf of the Defendants.
This Findings and Recommendation will be referred to a district judge. Objections, if any, are due no later than fourteen (14) days after the date this recommendation is entered. Id. objections are filed, any response is due within fourteen (14) days after the date the objections are filed. See FED. R. CIV. P. 72, 6.
Parties are advised that the failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).