Opinion
2:20-cv-01007-YY
04-12-2021
MICHAEL RAY PROVENCIO, Plaintiff, v. D. PARKER, Officer, Defendant.
FINDINGS AND RECOMMENDATIONS
Youlee Yim You, United States Magistrate Judge
FINDINGS
Pro se plaintiff Michael Provencio, an adult in custody (“AIC”) at Snake River Correctional Facility (“SRCI”), brings this action against defendant Douglas Parker, a correctional officer. Plaintiff alleges a 42 U.S.C. § 1983 claim for cruel and unusual punishment in violation of the Eighth Amendment. Compl. 2-3, ECF 2. This court has jurisdiction over plaintiff's claims pursuant to 28 U.S.C. §§ 1331 and 1343.
Federal jurisdiction for a 42 U.S.C. § 1983 claim is conferred by 28 U.S.C. § 1343. Franson v. U.S. Dep't of Veterans Affs., Portland VAMC/CEOC, No. 3:19-CV-01983-AC, 2020 WL 428154, at *1 (D. Or. Jan. 7, 2020), report and recommendation adopted sub nom. Franson v. United States Dep't of Veterans Affs., No. 3:19-CV-1983-AC, 2020 WL 423388 (D. Or. Jan. 27, 2020) (citing Lynch v. Household Finance Corp., 405 U.S. 538, 542 (1972) (noting 28 U.S.C. § 1343(3) is the “jurisdictional counterpart” of 42 U.S.C. § 1983)).
Defendant has filed a motion for summary judgment (ECF 20), arguing 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), and, alternatively, because plaintiff's suit against defendant in his official capacity is barred under the Eleventh Amendment. Mot. Summ. J. 9, ECF 20. Because plaintiff has not exhausted his administrative remedies, defendant's motion for summary judgment (ECF 20) should be GRANTED.
I. Summary Judgment Standard
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)).
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 issues are resolved against the moving parties and inferences are drawn in the light most favorable to the non-moving party.” Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000).
II. Exhaustion Under the PLRA
A. Applicable Law
The PLRA provides 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(a). Congress enacted the PLRA “in the wake of a sharp rise in prisoner litigation in the federal courts.” Woodford v. Ngo, 548 U.S. 81, 84 (2006). The PLRA strengthened the exhaustion requirement so that “[e]xhaustion is no longer left to the discretion of the district court, but is mandatory.” Id. at 85 (citation omitted). “[P]risoners must now exhaust all ‘available' remedies even where the relief sought-monetary damages-cannot be granted by the administrative process.” Id. (citation omitted). The exhaustion requirement “applies to all inmate suits about prison life” that do not involve the duration of the AIC's sentence. Nettles v. Grounds, 830 F.3d 922, 932 (9th Cir. 2016) (quoting Porter v. Nussle, 534 U.S. 516, 532 (2002) (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. “The obligation to exhaust ‘available' remedies persists as long as some remedy remains ‘available.'” Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005) (emphasis in original). “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) (citation omitted).
In Williams v. Paramo, 775 F.3d 1182 (9th Cir. 2015), the Ninth Circuit articulated the procedure for determining whether a prisoner exhausted available administrative remedies. First, a defendant must “prove that there was an available administrative remedy and that the prisoner did not exhaust that available remedy.” Id. at 1191 (citation omitted). “This burden is achieved by producing testimony from jail deputies that describe the jail's grievance procedure and provide an overview of the jail's record-keeping system.” Williams v. Gore, No. 15-CV-654, 2017 WL 1354695, at *5 (S.D. Cal. Mar. 24, 2017) (citing Morton v. Hall, 599 F.3d 942, 944 (9th Cir. 2010).
“Then, 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 by ‘showing that the local remedies were ineffective, unobtainable, unduly prolonged, inadequate, or obviously futile.'” Williams, 775 F.3d at 1191 (quoting Albino, 747 F.3d at 1172). The Supreme Court has recognized “three kinds of circumstances in which an administrative remedy, although officially on the books, is not capable of use to obtain relief”: when (1) “an administrative procedure . . . operates as a simple dead end-with officers unable or consistently unwilling to provide any relief to aggrieved inmates”; (2) the “administrative scheme [is] so opaque that it becomes, practically speaking, incapable of use”; and (3) “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Ross v. Blake, 136 S.Ct. 1850, 1859-60 (2016) (citations omitted). When one of these circumstances exists, “an inmate's duty to exhaust ‘available' remedies does not come into play.” Id. at 1859.
While the plaintiff has the burden of proving that remedies were effectively unavailable, “failure to exhaust is an affirmative defense under the PLRA.” Jones v. Bock, 549 U.S. 199, 216 (2007). Thus, the “ultimate burden of proof . . . remains with the defendant.” Williams, 775 F.3d at 1191 (citing Albino, 747 F.3d at 1172).
A motion for summary judgment is the proper means to raise an AIC's failure to exhaust administrative remedies. Albino, 747 F.3d at 1166. “If undisputed 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.
B. Analysis
1. Available Administrative Remedy and Failure to Exhaust
To satisfy his initial burden under Williams, defendant has submitted the declaration of Nina Sobotta, EOCI's Grievance Coordinator. Sobotta Decl. ¶ 1, ECF 21. In her declaration, Sobotta describes the EOCI grievance process and explains that grievances are processed in accordance with the Oregon Administrative Rules (“O.A.R.”), Chapter 291, Division 109. Id. ¶ 5. AICs are encouraged to communicate with line staff as the primary means of resolving disputes but advised that they may file a grievance if it complies with the administrative rules and there is no other review process available. Id. ¶ 6 (citing O.A.R. §§ 291-109-0100, 291-109-0210(4)(d)). This information is provided in the orientation packet that all inmates receive when they arrive at an ODOC facility. Id. It is also contained in the AIC handbook, and grievance forms containing instructions are available in all housing units. Id.
An AIC may file a single grievance concerning any incident or issue regarding institutional life that directly and personally affects the AIC. Id. ¶ 8 (citing O.A.R. 291-109-0210(3)(a)-(e)). If the AIC is dissatisfied with the response, the AIC may appeal to the functional unit manager by completing a grievance appeal form and filing it with the grievance coordinator within 14 calendar days from the date the grievance coordinator sent the response to the AIC. Id. ¶ 9 (citing O.A.R. 291-109-230). An AIC may submit a final appeal by completing a grievance appeal form and filing it within 14 days of the date the initial appeal response was sent to the AIC. Id. ¶ 10 (citing O.A.R. 291-109-0235). This final grievance appeal is not subject to further administrative review and completes the grievance process. Id. ¶ 10 (citing O.A.R. 291-109-0235).
Defendants have attached the following exhibits pertaining to plaintiff's grievance, #EOCI 2020-04-086:
(1) On April 16, 2020, plaintiff submitted a Grievance Form stating: “I was walking to the Westgate to my call out & [defendant] came screaming at me with an aggressive manner. I turned & asked him to please not yell at me. He became even more aggressive . . and hit me with the door, shaking a can of mace pointed towards me & pursued me & an altercation took place. Then the next thing I know I'm on the floor, continuously being punched numerous times through the ordeal.” Sobotta Decl., Attach. 5, at 6, ECF 21.
(2) On May 4, 2020, a Grievance Response Form was submitted to plaintiff. In the response, defendant stated he had called to plaintiff to stop at the Westgate where he was required to check in. Plaintiff initially refused to provide his name and told defendant, “You need to quit fucking with me” and “You don't know who the fuck I am.” Plaintiff opened the door, and attempted to enter the gate, which defendant perceived as threatening, so defendant stood up and took out his pepper spray. Defendant explains, “I then stepped out of the Westgate” and plaintiff “started to strike me in the face and the side of the head with a closed fist. I then started to defend myself by trying to wrap up your arms to control you. I applied approximately five closed fist strikes towards your head and upper body. . . . At no point did I strike you while you were on the ground or become aggressive towards you prior to your assaultive behavior upon me.” Id. at 5.
(3) On May 14, 2020, plaintiff submitted a Grievance Appeal Form stating: “I disagree with [defendant]'s statements in his response because they largely downplay the use of excessive force used by [defendant] to restrain me. The seargent's [sic] statements also contradict what actually happened.” Id. at 2.
(4) On May 18, 2020, Superintendent Sue Washburn sent plaintiff a response to his first-level appeal, noting that Lieutenant D. Linholm had investigated the incident and found that “force was used by staff to stop your assaultive behavior” and “[t]he use of force was found to be in compliance with OAR 291-013 (Use of Force).” Superintendent Washburn found that “EOCI staff performed their duties in accordance with ODOC rules, policies and procedures.” Id. at 1.
Plaintiff did not appeal the first-level appeal as required. See O.A.R. 291-109-0205(5) (“Final appeals must be received by the institution grievance coordinator or designee within 14 calendar days from the date the initial appeal response was sent to the AIC unless the AIC can satisfactorily demonstrate why the final appeal could not be timely filed.”). Thus, defendant has satisfied his initial burden by providing evidence of an existing grievance process and that plaintiff failed to exhaust an available administrative remedy. Williams, 775 F.3d at 1191.
2. Effectively Available Remedy
The burden shifts to plaintiff to prove the existence of facts that made the remedy effectively unavailable to him. Williams, 775 F.3d at 1191. Affirmative acts by prison officials that disrupt or prevent the exhaustion of administrative remedies may make those remedies effectively unavailable. See, e.g., Nunez v. Duncan, 591 F.3d 1217, 1224-25 (9th Cir. 2010); Ross, 136 S.Ct. at 1859-60.
Plaintiff contends that he suffers from bipolar disorder, post-traumatic disorder, and intermittent explosive disorder and that he cannot “sufficiently legally hold my own counsel.” Resp. 1, ECF 24. He claims that he was confused, scared, and overwhelmed, and “solely relied on the competence of the legal advice of the EOCI legal law library and therefore was misinformed and given the wrong steps to this legal process.” Id. at 1-2. Plaintiff contends that he did not comprehend the next step in the grievance appeal process, repeatedly asked what the next step was, and was told by a legal assistant that he “needed to fill out a 1983”:
I repeatedly asked what my next step was to therefore exhaust all remedies . . . I repeatedly sent numerous kytes . . . proving that I needed to know my next step in my grievance appeal process and I asked over and over what my next step was going to be? And the legal assistant William told me that I needed to fill out a 1983. As you can see through each kyte that I don't and didn't know nor comprehend my next step and although I repeatedly sent all the grievance documents to the Legal Library of EOCI that I kept being told wrongly and that I did exhaust all of my remedies.Id. at 3.
In support, plaintiff has attached written requests he made to the law library and an Inmate Communication Form, i.e, a “kyte, ” he sent to Sobotta:
An “inmate communication form” is an official ODOC form, “commonly referred to as a ‘kyte or kite, '” that is “designed for inmate use in communicating with employees, volunteers, or contractors and allows employees, volunteers, or contractors to respond in writing, when appropriate, to the inmate.” Tolle v. Oregon Dep't of Corr., No. 2: 11-CV-00980-MO, 2012 WL 775060, at *2 (D. Or. Mar. 6, 2012)
(1) On May 12, 2020, plaintiff submitted a Law Library Request Form asking to speak with a legal assistant and stating: “(1) request to file a 1983 packet (2) legal assistant “WILL” (3) I give permission for legal assistance to examine the documents & papers I sent & make a copy of them. Legal assistant for next week to go over please. The grievance appeal I have to send it to please make a copy and send it right back in!” Resp., Ex. A, ECF 24.
Law library staff scheduled a call with a legal assistant on May 19, 2020, and responded: “Mr. Provencio, please note the attached suggestions for resolving your grievance issue and the 1983 packet. We can talk more on 5-19-20.” Id.
(2) On May 19, 2020, plaintiff submitted a Law Library Request Form asking to speak with a legal assistant and stating: “I got the response back from Assistant Superintendent. Somebody told me that this is the final appeal? 291-109-0235 final appeal. Set up a legal assistant with “WILL” please to go over next step process?” Id., Ex. B.
Law library staff responded that plaintiff was scheduled for a call with a legal assistant on May 26, 2020. Id.
(3) On May 19, 2020, plaintiff filed another Law Library Request Form asking: “Did you stop the final appeal for grievance 291-109-0235???” Id., Ex. C.
Law library staff responded: “Mr. Provencio you need to kyte ‘Ms. Sobotta'--the grievance coordinator--using a regular kyte and ask her what the status is on your grievance appeal. When you get that response we can help you to move forward better.” Id.
(4) On May 21, 2020, plaintiff sent an Inmate Communication Form to Sobotta stating: “I would like to ask you what the status is on my grievance appeal?” Id., Ex. D.
On May 22, 2020, Sobotta responded: “The appeal EOCI 2020-04-086A was mailed to you on 5/19/20. A copy should have been handed to you on 5/22/20[.]” Id.
(5) On May 22, 2020, plaintiff submitted a Law Library Request Form requesting to speak with a legal assistant, to access legal research materials, and to obtain legal forms. He also stated, “I give legal law library permission to review, examine and make a copy of all documents enclosed. What is next? This [is] what the grievance coordinator sent me what is my next step? [G]rateful of your efforts.” Id., Ex. E.
The law library responded that plaintiff he was scheduled for a phone call with a legal assistant on May 26, 2020, and noted “Returned documents.” Id.
(6) On June 16, 2020, plaintiff submitted a Law Library Request Form asking to speak with a legal assistant and for access to legal forms, and stating: “I returned prison self help litigation manual tonight” and “I'm needing to talk with a legal assistant about my overall picture with whats at stake and need the perimiters of consequences should I go thru with my 1983 please should I let sleeping dogs lie[.]” Id., Ex. F.
The law library responded that plaintiff had a phone call with a legal assistant scheduled for June 25, 2020. Id.
(7) Plaintiff submitted six Law Library Request Forms between June 20, 2020, and July 19, 2020, asking to speak with a legal assistant, for access to legal research materials, and for guidance regarding filing a 1983 claim. Id., Exs. G-M.
In short, plaintiff claims his failure to exhaust was caused by misinformation he received from the law library and a legal assistant. However, plaintiff has not submitted an affidavit or sworn statement attesting to any facts, including what he was told, when, and by whom. On summary judgment, “[o]nce the moving party meets its burden of establishing the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial.” Cline v. Indus. Maint. Eng'g & Contracting Co., 200 F.3d 1223, 1229 (9th Cir. 2000) (citing Celotex, 477 U.S., at 323-24). Here, the court provided plaintiff with a Summary Judgment Advice Notice, which warned him of his obligation to respond to defendant's motion with evidence:
When a party you are suing makes a motion for summary judgment that is properly supported by declarations (or other sworn testimony), you cannot simply rely on what your complaint says. Instead, you must set out specific facts in depositions, documents, electronically stored information, affidavits or declarations, stipulations, admissions, interrogatory answers, or other materials, as provided in Rule 56(c), that contradict the facts shown in the defendants' declarations and documents and show that there is a genuine dispute of material fact for trial. If you do not submit your own evidence in opposition, summary judgment, if appropriate, may be entered against you. If summary judgment is granted, your case will be dismissed and there will be no trial.Summ. J. Advice Not., ECF 22. Yet, plaintiff has offered no sworn testimony in support of his response to defendant's motion for summary judgment.
Nevertheless, even assuming plaintiff's assertions are true, the fact that a legal assistant “may have given [plaintiff] faulty advice about when and how to exhaust . . . is no excuse” for his failure to do so. Richmond v. Sauvey, No. 18-CV-530-JPS, 2018 WL 4100537, at *6 (E.D. Wis. Aug. 28, 2018). Plaintiff was not entitled to legal assistance, and his “reliance on an inmate assistant was strictly voluntary.” Amavisca v. Scribner, No. CV F 05-1632 SMSHC, 2006 WL 3635461, at *5 (E.D. Cal. Dec. 8, 2006).
This concept that an inmate cannot rely on “ignorance of the law or assistance by a jailhouse lawyer” for purposes of meeting filing deadlines is well established. Amavisca v., 2006 WL 3635461, at *5. In Amavisca, for example, the court rejected plaintiff claim that “he is a layman of the law, and was forced to seek assistance from a jailhouse lawyer” as excuses for failing to file a timely habeas petition. Id. (collecting cases).
Nor is there any evidence that a prison official misled plaintiff into failing to file a final appeal. Plaintiff filed his initial appeal on May 14, 2020, and on May 15, 2020, the EOCI grievance coordinator sent plaintiff a notification that his “Initial Appeal” was accepted and that he should expect a response within 35 days. Sobotta Decl., Attach. 5, at 2, 4, ECF 21. On May 21, 2020, plaintiff sent a kyte to Sobotta stating: “I'd like to ask you what the status is on my grievance appeal?” Resp., Ex. D, ECF 24. Sobotta responded to plaintiff on May 22, 2020: “The appeal EOCI 2020-04-086A was mailed to you on 5/19/20. A copy should have been handed to you on 5/22/20.” Id.Thus, Sabotta fully responded to plaintiff's question pertaining to his “grievance appeal.” Plaintiff did not ask Sabotta whether he needed to appeal the denial of his grievance appeal or what the next step was. And there was nothing in plaintiff's question, and the timing of his kyte, to suggest that plaintiff was asking Sobotta about anything other than the status of the initial appeal.
Additionally, plaintiff's “allegations of generalized fear are insufficient to excuse his failure to exhaust.” Little v. Mun. Corp., City of N.Y., No. 12 Civ. 5851 (KMK), 2017 WL 1184326, at *12 (S.D.N.Y. Mar. 29, 2017); see also Aviles v. Tucker, No. 14 Civ. 8636 (NSR), 2016 WL 4619120, at *4 (S.D.N.Y. Sept. 1, 2016) (conclusory allegations that plaintiff was afraid to file a grievance “cannot support a finding that the grievance process was unavailable”); Whitley v. Tourtelot, No. 15 Civ. 377 (GTS) (TWD), 2016 WL 4530740, at *5 (N.D.N.Y. Aug. 3, 2016) (rejecting plaintiff's argument that “his mental state could be construed as a special circumstance which justified his failure to exhaust administrative remedies . . . because the Supreme Court has squarely rejected the ‘special circumstances' exception to administrative exhaustion”), report and recommendation adopted, 2016 WL 4532150 (N.D.N.Y. Aug. 29, 2016). “While [p]laintiff's pain and/or mental distress may have made the grievance process more challenging, it was not out of reach to [p]laintiff so as to be rendered ‘unavailable' through no fault of his own.” Millner v. Biter, No. 13 Civ. 2029 (AWI) (SAB) (PC), 2017 WL 735688, at *7 (E.D. Cal. Feb. 24, 2017).
After briefing on the motion had closed, plaintiff filed a Motion to Introduce Plaintiff's Mental Health Record/Diagnosis. ECF 33. The court granted the motion and said it would consider plaintiff's evidence as a supplement to his response to defendant's motion for summary judgment. Order, ECF 34.
Plaintiff offers as evidence a Psychiatry Admission Assessment performed by Oregon State Hospital on June 21, 2018, when he was admitted “for restoration of his competency to stand trial.” See ECF 33, at 3-7. Importantly, however, this document indicates that on April 6, 2018, a psychologist, Les Goldmann, Ph.D., concluded that plaintiff “is able to aid and assist.” Id. at 6 (emphasis added); see O.R.S. 161.360(2)(b) (“A defendant may be found incapacitated if, as a result of a qualifying mental disorder, the defendant is unable . . . [t]o assist and cooperate with the counsel of the defendant.”). Dr. Goldmann recommended that plaintiff be sent to the hospital “for evaluation and treatment” because he presented with “agitation, depression, and aggression as well as a number of psychotic symptoms including delusions and hallucinations, ” and Dr. Goldmann was concerned plaintiff “could deteriorate to the extent that he would no longer be competent to stand trial.” ECF 33, at 6. Under O.R.S. 161.365(1)(a)(B), a state court judge who has “reason to doubt” a defendant's fitness to proceed to trial may, upon “determine[ing] the assistance of a psychiatrist or psychologist would be helpful, ” commit the defendant to the state hospital “for purpose of an examination” and “for the duration necessary to complete the examination of the defendant, not to exceed 30 days.”
Although given the opportunity to reply, defendant did not submit any objection to the admissibility of this document.
During his assessment at Oregon State Hospital, plaintiff said he saw “lesser demons, ” but was uncertain whether it was in dreams, and reported no history of intrusive thoughts. Id. at 7. The hospital noted, that based on the April 2018 psychologist report, “there is a possibility of difficulty in directing the patient given suspected major neurocognitive disorder and concomitant disinhibition.” Id. at 6 (emphasis added). The hospital diagnosed plaintiff with “DSM-5 Criteria, with Posttraumatic Stress Disorder, with dissociation, moderate, chronic, Bipolar I disorder, most recent episode, depressed (provisional), Amphetamine Use Disorder, in partial remission, in a controlled environment, Alcohol Use Disorder, in partial remission, in a controlled environment, Opiate Use Disorder, in partial remission, in a controlled environment, R/O Intermittent Explosive Disorder, and Traumatic Brain Injury.” Id. at 7.
“[T]he bulk of authority . . . has consistently held that individuals with disabilities or mental illness must nonetheless comply with the PLRA's exhaustion requirements.” Johnson v. D.C., 869 F.Supp.2d 34, 39-40 (D.D.C. 2012) (collecting cases). “[T]here is no mental-capacity exception to the PLRA” exhaustion requirement. Williams v. White, 724 Fed.Appx. 380, 383 (6th Cir. 2018). In Ross, the “United States Supreme Court did not list a plaintiff's mental capacity as a possible ground for unavailability of an administrative remedy such that PLRA exhaustion may be excused. Indeed, the United States Supreme Court's examples focused on the characteristics of administrative remedies, not on the characteristics of potential plaintiffs.” Pratt v. Gamboa, No. 17-CV-04375-LHK, 2020 WL 2512407, at *6 (N.D. Cal. May 15, 2020) (citing Ross, 136 S.Ct. at 1859-60).
Nevertheless, here, Dr. Goldmann concluded that plaintiff was able to aid and assist, ECF 33, at 6, and the record contains no indication that plaintiff was ever determined unable to aid and assist or unfit to proceed to trial. In fact, at the hospital, plaintiff reported no intrusive thoughts, and plaintiff was able to attend to his activities of daily living. Id. at 5.
Moreover, even if plaintiff was unfit to proceed to trial in June 2018, that does not mean he was incompetent two years later when he was required to exhaust his administrative remedies. “[A]n individual's competency is not fixed, but may vary over time.” Johnson, 869 F.Supp.2d at 39-40 (citation omitted). There is no evidence that in May 2020, plaintiff was suffering from a serious mental illness such that, for example, he was housed outside of the general population or receiving treatment or medication for mental illness. See Washington v. Fresno Cty. Sheriff, No. 1: 14-CV-00129-SAB, 2018 WL 1033278, at *9-10 (E.D. Cal. Feb. 21, 2018) (finding plaintiff, who was found incompetent in his criminal case almost two years after the period to exhaust administrative remedies had passed, “has presented no evidence that he was not competent . . . when he was required to exhaust administrative remedies for the claims at issue in this action, ” and observing he was housed in general population and not receiving mental health treatment or medications).
“Further, the evidence in the record demonstrates that Plaintiff had the mental capacity to understand and pursue grievances” in May 2020. Id. at *10. Plaintiff was able to independently and successfully file the initial grievance and the first appeal, showing he was able to navigate the grievance process. In his initial appeal, plaintiff was able to clearly explain that he disagreed with defendant's response “because they largely downplay the excessive forced used by [defendant] to restrain me” and “also contradict what actually happened.” Sobotta Decl., Attach. 5, ECF 21. Plaintiff was aware of the pertinent administrative rule regarding final appeals, O.A.R. 291-109-0235, which he cited not once, but twice, in his communication with the law library. Resp., Exs. B, C, ECF 24. Plaintiff also had access to the prison's “self help litigation manual, ” which he had checked out of the law library. Id., Ex. F. Thus, there is no genuine issue of material fact that the grievance procedures were not “capable of use to obtain some relief for the action complained of.” Ross, 136 S.Ct. at 1859 (internal quotation marks and citation omitted).
If plaintiff, in fact, had been suffering from a mental impairment, he could have sought help through O.A.R. 291-109-0220(6), which provides that AICs who “cannot complete the grievance form due “physical or mental impairments or language barriers, ” may contact the legal library, institution grievance coordinator, or institution ADA coordinator “to request assistance.”
Because defendant has established there is no genuine issue of material fact that plaintiff failed to fully exhaust available administrative remedies, his case must be dismissed. See Jones, 549 U.S. at 211 (“There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court.”) (citation omitted).
III. Eleventh Amendment
Defendant alternatively argues that plaintiff's claim is precluded under the Eighth Amendment. It is unnecessary to reach this issue because plaintiff's claim is unexhausted for the reasons discussed above.
Where, as here, it is unclear from the complaint that a pro se plaintiff has sued the defendant in his individual or official capacities or both, the court liberally construes the complaint to conclude that he has sued the individual state official in his personal capacity. Rucker v. Jones, 933 F.2d 1015 (9th Cir. 1991). Thus, except to the extent plaintiff is suing defendant in his official personal capacity, his claim would not be barred by the Eleventh Amendment. The Eleventh Amendment to the United States Constitution bars all suits brought in federal court against states and their agencies in the absence of consent by the state or express abrogation by Congress within its authority. See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 53-54 (1996). Because a suit against a state official in his or her official capacity is a suit against the official's office, state officials sued in their official capacities are not persons subject to civil rights suits under 42 U.S.C. § 1983. Will v. Michigan Department of State Police, 491 U.S. 58, 64-66 (1989).
IV. Dismissal Without Prejudice
“If the district court concludes that the prisoner has not exhausted nonjudicial remedies, the proper remedy is dismissal of the claim without prejudice.” Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003), overruled on other grounds by Albino, 747 F.3d 1162; see also Carrea v. California, 551 Fed.Appx. 368, 369 (9th Cir. 2014) (remanding for the entry of dismissal without prejudice because the proper remedy for non-exhaustion is dismissal without prejudice) (cited pursuant to Ninth Circuit Rule 36-3). Even if plaintiff “can no longer exhaust administrative remedies as to the claims in this case” and “refiling his complaint . . . would be futile, ” this court is “bound by Wyatt v. Terhune” to dismiss this case without prejudice. Williams v. Oregon Dep't of Corr., No. 3: 10-CV-884-JO, 2013 WL 867181, at *2 (D. Or. Mar. 6, 2013).
RECOMMENDATIONS
Defendant's motions for summary judgment (ECF 20) should be GRANTED, and this case should be dismissed without prejudice.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Friday, April 30, 2021. 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.