Opinion
2:21-cv-01887-YY
02-02-2023
JOSHUA CARMACK, Plaintiff, v. OREGON DEPARTMENT OF CORRECTIONS, KEVIN JACKSON, THERON RUMSEY, ABRAHAM CAMPOS, and JOHN DOE, Defendants.
FINDINGS AND RECOMMENDATIONS
Youlee Yim You, United States Magistrate Judge
FINDINGS
Plaintiff Joshua Carmack, an adult in custody (“AIC”) formerly incarcerated at Twin Rivers Correctional Institution (“TRCI”) and Snake River Correctional Institution (“SRCI”), has brought this action asserting a common law negligence claim against Oregon Department of Corrections (“ODOC”) and an Eighth Amendment claim pursuant to 42 U.S.C. § 1983 against the remaining individual defendants. Plaintiff claims that while incarcerated at TRCI on December 22, 2019, he was exposed to oleoresin capsicum (“OC”) spray during a cell extraction that occurred in a neighboring cell. Plaintiff alleges the individual defendants were deliberately indifferent to his suffering when they did not provide him with a shower for at least 12 hours after he was exposed, and did not allow him to take a cold shower, which he claims would have alleviated his pain and suffering. He also claims ODOC acted negligently by failing to exercise reasonable care to protect him while he was in custody.
Defendants have filed a motion for summary judgment (ECF 10) on three grounds: plaintiff's § 1983 claim must be dismissed because he failed to exhaust available administrative remedies as required by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a); plaintiff's claims against the individuals defendants are otherwise barred by the Eleventh Amendment, to the extent he alleges claims against them in their official capacity; and plaintiff's negligence claim against ODOC is barred by the Eleventh Amendment.
The motion for summary judgment should be granted as to plaintiff's § 1983 claim against the individual defendants because plaintiff failed to exhaust his administrative remedies. Given exhaustion is a threshold issue, it is unnecessary to reach defendant's argument that the Eleventh Amendment bars plaintiff's claims against the individual defendants to the extent they were acting in an official capacity. The motion for summary judgment also should be granted as to plaintiff's negligence claim against ODOC because it is a state agency and the claim is therefore barred by the Eleventh Amendment.
I. Summary Judgment Standard
A motion for summary judgment is evaluated under Federal Rule of Civil Procedure 56(a), which states that “[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 seeking summary judgment bears the initial burden of showing the absence of a genuine issue of material fact by citing to the record, including “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The nonmoving party must then “go beyond the pleadings” and identify in the evidentiary record “specific facts showing that there is a genuine issue for trial.” Id. at 324.
Only disputed facts that are outcome determinative will preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Furthermore, the dispute must be genuine, “such that a reasonable jury could return a verdict for the nonmoving party.” Id. Where the nonmoving party offers only a “scintilla of evidence” or evidence that is “merely colorable” or “not significantly probative” of the nonmoving party's position, summary judgment may be granted. Id. at 249, 252. There must be “sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Id. at 249. The evidence of the nonmovant must be believed, and all “rational” and “reasonable” inferences are drawn in the nonmoving party's favor. United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir. 1989).
II. Section 1983 Claim-Failure to Exhaust
Plaintiff's § 1983 claim against the individual defendants is barred because he failed to exhaust his administrative remedies as required by the PLRA.
I. PLRA Exhaustion Requirement
The PLRA prescribes that “[n]o 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.” 42 U.S.C. § 1997e. Exhaustion is a precondition to an inmate bringing any lawsuit challenging prison conditions. Woodford v. Ngo, 548 U.S. 81, 85 (2006). Under the PLRA, exhaustion is mandatory and the court lacks discretion to consider claims challenging prison conditions. Id. The purposes of the exhaustion requirement are two-fold: to protect administrative agency authority, by providing agencies the opportunity to correct their mistakes before being brought into federal court, and by encouraging adherence to agency procedures; and to promote efficiency because resolution by an agency is typically faster and more economical than litigation in federal court. Id. at 89.
“Failure to exhaust under the PLRA is ‘an affirmative defense the defendant must plead and prove.'” Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (quoting Jones v. Bock, 549 U.S. 199, 204 (2007)). The court employs a burden-shifting framework to analyze administrative exhaustion under the PLRA. First, the defendant must “prove that there was an available administrative remedy and that the prisoner did not exhaust that available remedy.” Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015). Next, “the burden shifts to the plaintiff, who must show that there is something particular in his case that made the existing and generally available administrative remedies effectively unavailable to him[.]” Id. This can include “showing that the local remedies were ineffective, unobtainable, unduly prolonged, inadequate, or obviously futile.” Id. An inmate need only exhaust those remedies that are available “as a practical matter,” meaning that the remedy must be “capable of use; at hand.” Brown, 422 F.3d at 937.
Because exhaustion of remedies is an affirmative defense, the defendant has the burden of raising and proving that an incarcerated plaintiff failed to satisfy the PLRA's exhaustion requirement. Jones, 549 U.S. at 216. 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 prisoner shows a failure to exhaust. Albino, 747 F.3d at 1166, 1172.
B. Analysis
Defendants have satisfied their initial burden of showing that an administrative remedy was available to plaintiff but he failed to exhaust the available remedy. ODOC's grievance process is set forth in the Oregon Administrative Rules. See OAR, Ch. 291, Div. 109. The grievance process consists of three steps-filing a grievance and two rounds of appeal-for handling AIC complaints regarding incidents or issues that personally affect them. Eynon Decl. ¶¶ 8-10, ECF 11; see OAR 291-109-0205; OAR 291-109-0210(3). Of particular relevance to this case is OAR 291-109-0225(2)(a), which allows an AIC to “resubmit a grievance or grievance appeal that has been returned for correction to the AIC because it does not comply with [the] rules.”
Arnell Eynon and Kelcie Main, who are the grievance coordinators at TRCI and SRCI, respectively, and records custodians for ODOC, have provided declarations in which they attest that information regarding the grievance process is conveyed to AICs through the Orientation Packet that AICs receive when they first arrive at an ODOC facility. Eynon Decl. ¶¶ 1, 6, ECF 11; Main Decl. ¶¶ 1, 6, ECF 22. Additionally, this information is contained in the AIC handbook and on grievance instructions, which are available along with grievance forms, in every housing unit. Eynon Decl. ¶ 6, ECF 11; Main Decl. ¶ 6, ECF 22. “Grievance Information” containing verbatim excerpts of the Oregon Administrative Rules, including OAR 291-109-0225(2)(a), is written on the “back of the grievance form.” Main Decl. ¶ 11, ECF 22; id., Ex. 3, ECF 22; Eynon Decl., Ex. 3, ECF 11; see also OAR 291-109-0220 (“Instructions for filing a grievance are found on the reverse side of the AIC grievance form.”). This “Grievance Information” also directs AICs to the Oregon Administrative Rules, Division 109, which “may be reviewed in its entirety in [the] legal library.” Main Decl., Ex. 3, ECF 22; Eynon Decl., Ex. 3, ECF 11.
Defendants have produced evidence showing that plaintiff filed a grievance based on the December 22, 2019 incident and that it was received by TRCI's grievance office on December 26, 2019. Eynon Decl. ¶ 12, ECF 11. In that grievance, plaintiff complained that he and his cellmate “were never given a shower” and “had to suffer through it.” Id., Ex. 5, at 6, ECF 11. Plaintiff's grievance was returned for correction through a memorandum dated January 21, 2020, which stated that the grievance was non-compliant with the grievance system rules because “[a]n AIC may not submit a grievance representing other AICs, or acts where an AIC is a spokesperson for other AICs.” Id., Ex. 5, at 5, ECF 11. The memorandum quoted verbatim Oregon Administrative Rule (“OAR”) 291-109-0225(2), which outlines the process for resubmitting grievances and grievance appeals. Id. In particular, the memorandum recited the language from OAR 291-109-225(2)(a), which states that “[a]n AIC may elect to resubmit a grievance or grievance appeal that has been returned for correction to the AIC because it does not comply with these rules.” Id.
In conformance with OAR 291-109-225(2)(a), plaintiff resubmitted his grievance on January 26, 2020, alleging this time, “I was never given a shower that night,” and “I had to suffer through it,” and this grievance was accepted by the grievance office on January 31, 2020. Eynon Decl., Ex. 5, at 4, ECF 11. The grievance office responded to the grievance, citing OAR 291- 013
In February 2020, plaintiff was transferred to SRCI. Eynon Decl., Ex. 1, ECF 21; Carmack Decl. ¶ 2, ECF 19. Plaintiff claims he did not have an ODOC handbook “in his personal property” when he was housed there. Carmack Decl. ¶ 5, ECF 19.
Nevertheless, plaintiff submitted an initial appeal to the SRCI grievance office, which was transmitted to the TRCI grievance office and received on March 20, 2020. Eynon Decl., Ex. 5, at 2, ECF 21. The TRCI grievance office stamped the appeal form “denied,” without additional explanation, on March 26, 2020. Id. However, on April 9, 2020, the TRCI grievance office followed up with a memorandum to plaintiff explaining that the “initial appeal” was “denied” and “being returned to [plaintiff] due to non-compliance” with the grievance system rules because plaintiff had “used an old form.” Id., Ex. 5, at 1 (“All grievance and grievance appeal submissions need to be on the correct/updated grievance/appeal forms, dated 2019.”). The memorandum further advised plaintiff, “[i]f you have any questions regarding your initial grievance appeal, please refer to the Department of Corrections Administrative Rule ‘Grievance Review System' tab #109 located in the legal library or kyte your institution Grievance Counselor.” Id. Plaintiff did not resubmit his initial appeal on a correct form. Eynon Dec., ¶ 18, ECF 11.
Thus, plaintiff failed to complete the initial and final appeals in the grievance process. Accordingly, defendants have met their burden of showing that there was an available administrative remedy but plaintiff failed to exhaust it. See OAR 291-109-0205.
The burden then shifts to plaintiff to “show that there is something particular in his case that made the existing and generally available administrative remedies effectively unavailable to him[.]” Williams, 775 F.3d at 1191. Plaintiff contends that defendants prevented him from exhausting his administrative appeals by failing to inform him that he could, or that they expected him to, resubmit his appeal on a correct form. Resp. 5, ECF 17. In his own words, plaintiff claims that “[t]he TRCI grievance coordinator sent me a denial of my appeal in April 2020,” and “I had no idea that I could resubmit a corrected version of the appeal, because the denial did not tell me that I could submit the appeal.” Carmack Decl. ¶ 3, ECF 19.
Plaintiff cites to Marella, Bond, and Nunez in support of this theory. Resp. 7-9, ECF 17. In Marella, the Ninth Circuit found that a remedy was unavailable to the plaintiff where the memorandum accompanying the denial of plaintiff's appeal incorrectly informed the plaintiff that the appeals process was unavailable to him. Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009). “After Marella filed his first level appeal, he received a form rejecting the appeal because it was not timely filed and there was ‘no explanation of why [he] did not, or could not, file in a timely manner.'” Id. The form also stated that “[t]his screening action may not be appealed unless you allege that the above reason is inaccurate.” Id. “Marella did not dispute that his appeal was untimely, and he did not dispute that he had not explained why he was unable to file in a timely manner. Thus, according to the form, he was not permitted to appeal the decision.” Id. On these facts, the Ninth Circuit held that the appeals process was unavailable to Marella. Id.
The Fordley v. Lizarraga, 18 F.4th 344, 351 (9th Cir. 2021), passage that plaintiff quotes is an analysis of Marella v. Terhune, 568 F.3d 1024 (9th Cir. 2009) (per curiam).
Similarly, in Bond, this court found that administrative remedies were unavailable where prison officials denied the plaintiff's grievance as untimely but failed to provide the plaintiff, who was seriously ill, with the rule that excused untimely grievances when an AIC had a “physical incapacity.” Bond v. Oregon, No. 3:16-CV-00648-YY, 2017 WL 3184186, at *6-7 (D. Or. July 6, 2017), report and recommendation adopted, 2017 WL 3184469 (D. Or. July 25, 2017). Additionally, the physical incapacity exception was absent from the inmate handbook and orientation materials. Id. And the partial instructions that were included on the grievance form, which left off the exception, further misled the plaintiff regarding her ability to appeal the denial. Id.
Notably, this decision also relied upon the prison's failure to adhere to former OAR 291-109-0150(2)(a), which has since been repealed. Former OAR 291-109-0150(2)(a) mandated that, when a grievance was denied as untimely, it had to be returned to the AIC “with a statement of the rule.” Bond, 2017 WL 3184186, at *5.
In Nunez, the Ninth Circuit held that an AIC was excused from exhausting his administrative remedies because “he took reasonable and appropriate steps to exhaust his Fourth Amendment claim and was precluded from exhausting, not through his own fault but by the Warden's mistake.” Nunez v. Duncan, 591 F.3d 1217, 1224 (9th Cir. 2010). Nunez filed a grievance complaining of an unconstitutional strip search. Id. at 1220. In his response to Nunez's grievance, the warden cited to a program statement, which was wholly unrelated to strip searches, as a complete justification for the strip search. Id. This program statement was not in the prison library or otherwise available to Nunez, and he filed multiple, unsuccessful requests to obtain the program statement in order to prepare his appeal. Id. at 1220-21. The Ninth Circuit concluded that exhaustion was excused because Nunez “could not reasonably be expected to exhaust his administrative remedies without the Program Statement that the Warden claimed to mandate the strip search, and because Nunez timely took reasonable and appropriate steps to obtain it.” Id. at 1225.
In the above cases, prison officials provided inaccurate or incomplete information during the grievance process, which prevented the plaintiffs from utilizing the remedies available to them. Here, in contrast, it is undisputed that defendants fully apprised plaintiff of the information necessary for him to pursue a remedy through the grievance system. The “Grievance Information,” which is provided on the back of grievance forms, recited OAR 291109-0225(2) verbatim and specifically informed plaintiff that “[a]n AIC may elect to resubmit a grievance or grievance appeal that has been returned for correction to the AIC because it does not comply with [the] rules” and that a “grievance appeal may . . . be resubmitted twice.” Eynon Decl,, Ex. 3, ECF 11 (emphasis added). The January 21, 2020 denial memorandum also recited verbatim the language from OAR 291-109-0225(2)(a) that plaintiff could “resubmit a grievance or grievance appeal that has been returned for correction.” Id., Ex. 5, at 5 (emphasis added). And the memorandum accompanying the denial of plaintiff's appeal clearly explained that the initial grievance appeal was “being returned to you,” with an explanation for why it had been incorrectly submitted, as well as instructions about which form to use, i.e., the “correct, updated” 2019 form. Eynon Decl., Ex. 5, at 1, ECF 11 (emphasis added). Defendants were not required to again instruct plaintiff on the appeals process in the memorandum accompanying plaintiff's returned appeal.
This case is distinguishable from Kohler v. Oregon Department of Corrections, where the denial of the plaintiff's grievance appeal stated, “a denied initial grievance or appeal cannot be appealed,” which plaintiff interpreted as “a direct order to stop filing grievances.” No. 6:21-CV-01246-JR, 2022 WL 16856404, at *5 (D. Or. Sept. 9, 2022), report and recommendation adopted, 2022 WL 16855192 (D. Or. Nov. 10, 2022). Here, there was no such language in the memorandum. Rather, the memorandum informed plaintiff that the initial grievance appeal was “being returned to you,” along with information about which form to use, and instructed plaintiff that if he had any questions about his initial grievance appeal, he could “refer to the . . . ‘Grievance Review System' tab #109 located in the legal library or kyte your institution Grievance Coordinator.” Eynon Decl., Ex. 5, at 1, ECF 11.
Plaintiff also was not prohibited from exhausting administrative remedies because SRCI provided him with an outdated form, as he claims. Resp. 9, ECF 17. Plaintiff asserts that he got the wrong grievance appeal form “from a pile of forms available on my housing unit officer's desk.” Carmack Decl. ¶ 2, ECF 19. But even if corrections staff had given plaintiff the wrong form, that fact is not enough to satisfy plaintiff's “burden to show that [corrections] staff were ‘consistently unwilling to provide any relief to aggrieved inmates.'” Muhammad v. Kelly, No. 6:21-CV-107-SI, 2021 WL 3493474, at *5 (D. Or. Aug. 9, 2021) (finding that the plaintiff's statements that a corrections officer “talked down” to him and “threw” the wrong form when he tried to obtain a grievance form “do not satisfy” this burden). Plaintiff does not identify, and the court is unable to find any evidence that plaintiff tried to access an updated form and was unable to obtain one. There is no indication in the record that, upon being advised that plaintiff's appeal had to be on the “correct, updated grievance appeal forms, dated 2019,” he inquired further or made any attempt to obtain the correct form.
This case is distinguishable from Barker v. Belleque, where the plaintiff attested that the proper form was not available to him. No. CIV. 10-0093-AA, 2011 WL 285228, at *4 (D. Or. Jan. 26, 2011). In that case, the plaintiff submitted a declaration stating that the correct form, CD 117C, “was not available in the Oregon State Penitentiary office,” and he “used CD 117b because form CD 117C was not available to me.” Id., Barker Decl., ECF 34. Here, again, plaintiff states that he “got the grievance appeal form from a pile of forms available on my housing unit officer's desk.” Carmack Decl. ¶ 2, ECF 19. Unlike Barker, there is no evidence that the correct form was unavailable to plaintiff or that he requested the correct form and was not given one.
Plaintiff contends there is no requirement that he had to use the latest form to submit his grievance. But OAR 291-109-0220(1) states that an AIC must use “the department's approved AIC grievance form.” Here, plaintiff did not use the approved grievance form because the one he submitted was outdated. And while plaintiff had the opportunity to correct his mistake, as he had done in the past, and resubmit his grievance appeal on the correct form, he failed to do.
Finally, plaintiff claims he did not have an AIC handbook while at SRCI, and that the law library at SRCI was not open in April 2020 due to COVID restrictions, making it impossible for him to go to the law library to look up the Oregon Administrative Rules. See Carmack Decl. ¶ 5, ECF 19; Resp. 9, ECF 17. But the April 9, 2020 memorandum advised plaintiff that he could go to the legal library or kyte the grievance coordinator if he had any questions, and there is no evidence that plaintiff sent a kyte to the grievance coordinator. Eynon Decl., Ex. 5, at 1, ECF 11. And, again, the January 21, 2020 denial memorandum recited the pertinent rule, OAR 291-109-0225(2)(a), verbatim. Id., Ex. 5, at 5, ECF 11. Plaintiff also does not dispute that the “Grievance Information,” which includes the resubmission rule verbatim, was provided on the back of grievance forms. Eynon Decl. ¶ 6, ECF 11; id., Ex. 3, ECF 11 (quoting OAR 291-109-0225(2)(a)). Because plaintiff otherwise had access to the relevant rule, the fact that he did not have the AIC handbook in his possession or access to the law library at SRCI in April 2020 does not render the administrative remedies unavailable. Moreover, it is clear that plaintiff understood the rule because he had resubmitted a corrected grievance before.
Thus, plaintiff has not shown that administrative remedies were effectively unavailable to him due to incomplete or misleading actions of prison officials. Nor has plaintiff shown that he “took reasonable and appropriate steps to exhaust his [] claim and was precluded from exhausting, not through his own fault but by the [prison official's] mistake.” Nunez, 591 F.3d at 1224. The individual defendants are therefore entitled to summary judgment as to plaintiff's § 1983 claim. 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.”).
III. Negligence Claim-Eleventh Amendment Immunity
Defendants argue, and plaintiff does not contest, that plaintiff's state law negligence claim against ODOC may not be heard in this court. Mot. Summary J. 2, ECF 10. State agencies are immune from suit in federal court under the Eleventh Amendment. In re Harleston, 331 F.3d 699, 701 (9th Cir. 2003). “State prisons are considered state agencies for purposes of the Eleventh Amendment.” Eaton v. Two Rivers Correction Inst. Grievance Coordinator Enyon, No. 2:20-CV-1251-SI, 2020 WL 7364975, at *6 (D. Or. Dec. 15, 2020) (citing Allison v. Cal.Youth Auth., 419 F.2d 822, 823 (9th Cir.1969)). “ODOC is considered a state prison; therefore, claims against it are subject to the Eleventh Amendment.” Id. Because plaintiff's “only claim against ODOC is under § 1983, for which Congress has not abrogated sovereign immunity,” plaintiff's negligence claim against ODOC must be dismissed without prejudice. Id.
RECOMMENDATIONS
Defendants' motion for summary judgment (ECF 10) should be GRANTED, and all of 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, February 16, 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.