Opinion
3:21-cv-00229-SB
08-10-2023
TREMAYNE OMAR SLATER, Plaintiff, v. KATE BROWN et al., Defendants.
FINDINGS AND RECOMMENDATION
HON. STACIE F. BECKERMAN UNITED STATES MAGISTRATE JUDGE
Plaintiff Tremayne Omar Slater (“Slater”), a self-represented litigant formerly in the custody of the Oregon Department of Corrections (“ODOC”), filed this case in February 2021 against (former) Governor Kate Brown, ODOC, and two ODOC officials (together, “Defendants”), alleging constitutional violations related to Defendants' handling of the COVID-19 pandemic. (ECF No. 2.)
The Court certified a federal class action alleging similar claims in Maney et al. v. Brown et al., Case No. 6:20-cv-00570-SB. The Court stayed this action pending its class certification decision in Maney, but lifted the stay after certifying the Maney class action. (See ECF Nos. 12, 15.)
Now before the Court is Defendants' motion to dismiss. (See Defs.' Mot. Dismiss (“Defs.' Mot.”), ECF No. 32.) The Court has jurisdiction pursuant to 28 U.S.C. § 1331, but not all parties have consented to the jurisdiction of a magistrate judge under 28 U.S.C. § 636. For the reasons that follow, the Court recommends that the district judge grant Defendants' motion to dismiss Slater's claims.
Slater pleads these facts in his complaint and the Court assumes they are true for the purpose of deciding this motion. See Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010) (noting that when reviewing a motion to dismiss for failure to state a claim, a court must “accept as true all well-pleaded allegations of material fact, and construe them in the light most favorable to the non-moving party”).
Slater alleges in his complaint that while he was in ODOC custody, “the Superintendent failed to maintain a clean and sterile environment that caused [Slater] to contract COVID-19 [and d]uring all this caus[ed Slater] mental anguish as to when [he] would contract the disease.” (Compl. at 4.) Slater does not identify what relief he seeks from the Court. (See generally id.)
DISCUSSION
Defendants move to dismiss Slater's claims because, inter alia, he failed to exhaust administrative remedies. (See Defs.' Mot. at 4-6.) The Court agrees, and recommends that the district judge dismiss Slater's claims.
I. LEGAL STANDARDS
This case is subject to the Prison Litigation Reform Act (“PLRA”), which “requires [adults in custody (“AICs”)] to exhaust available administrative remedies prior to filing a . . . lawsuit challenging prison conditions.” Draper v. Rosario, 836 F.3d 1072, 1078 (9th Cir. 2016) (citations omitted). In Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014) (en banc), the Ninth Circuit held that the defendant bears the burden of proving that an administrative remedy was available to the AIC and that he failed to exhaust such remedy, because non-exhaustion is an affirmative defense. “Once the defendant has carried that burden, the [AIC] has the burden of production.” Id. “That is, the burden shifts to the [AIC] 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.
“The doctrine of exhaustion of administrative remedies is well established . . . and provides that no one is entitled to judicial relief for a supposed threat or injury until the prescribed administrative remedy has been exhausted.” Woodford v. Ngo, 548 U.S. 81, 88-89 (2006). “Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings.” Id. at 90-91.
II. ANALYSIS
In his complaint, Slater acknowledges that a grievance procedure was available to him but that he did not file a grievance concerning the facts relating to his complaint. (See Compl. at 3; see also Defs.' Mot. at 3.) Thus, it is undisputed that the grievance process was available to Slater and that he failed to exhaust any grievances related to his claims. Therefore, the burden shifts to Slater to demonstrate that the grievance process was effectively unavailable to him. Slater has not attempted to do so.
On June 1, 2020, this Court held in Maney that the plaintiffs in that case had “demonstrated that ODOC's grievance process is currently unavailable to grieve the systemic COVID-19 issues that [the p]laintiffs challenge[d.]” Maney v. Brown, 464 F.Supp.3d 1191, 1207 (D. Or. 2020). Unlike the plaintiffs in Maney, Slater has not alleged that the grievance process was unavailable to him.
Slater did not timely respond to Defendants' motion to dismiss. On April 4, 2023, the Court sua sponte allowed additional time for Slater to respond. (See Order, ECF No. 33.) When Slater failed to do so, the Court issued an order to show cause asking Slater to inform the Court of his intent to continue to prosecute this case. (See Order, ECF No. 34.) Slater responded via email on May 10, 2023, stating that he intended to continue to prosecute this case. (See Order, ECF No. 35.) Despite so stating, Slater failed to respond to Defendants' motion, which “is a concession [] on the merits” and is a separate ground for dismissal here. Yentz v. Nat'l Credit Adjusters, LLC, No. 3:20-cv-01364-AC, 2021 WL 1277961, at *4 (D. Or. Feb. 15, 2021) (citing Steger v. Peters, No. 6:16-cv-02093-YY, 2018 WL 3430671, at *2 (D. Or. 2018)), findings and recommendation adopted, 2021 WL 1270457 (D. Or. Apr. 6, 2021); cf. Carvalho v. Equifax Info.Servs., LLC, 629 F.3d 876, 888 (9th Cir. 2010) (“A plaintiff who makes a claim . . . in his complaint, but fails to raise the issue in response to a defendant's motion to dismiss . . . has effectively abandoned his claim[.]”).
For these reasons, the Court finds that the grievance process was available to Slater, but Slater did not file nor exhaust any grievances related to his claim. Accordingly, the Court recommends that the district judge grant Defendants' motion to dismiss. See Albino, 747 F.3d at 1169 (“[I]n those rare cases where a failure to exhaust is clear from the face of the complaint, a defendant may successfully move to dismiss under Rule 12(b)(6) for failure to state a claim.”); see also Fields v. Sec'y of CDCR, No. 221CV00548KJMEFBP, 2022 WL 2181997, at *4 (E.D. Cal. June 16, 2022) (dismissing AIC's claims related to COVID-19 because he failed to exhaust his administrative remedies), report and recommendation adopted, No. 221CV0548DADEFBPC, 2022 WL 4124865 (E.D. Cal. Sept. 9, 2022); Cox v. Daram, No. 220CV1295KJMDBP, 2021 WL 3662392, at *5 (E.D. Cal. Aug. 18, 2021) (dismissing AIC's claims related to COVID-19 because “at the time plaintiff filed his initial complaint in July 2020, he had not fully exhausted his administrative remedies for any of his claims”), report and recommendation adopted, No. 220CV01295KJMDBP, 2021 WL 5852606 (E.D. Cal. Dec. 9, 2021).
CONCLUSION
For these reasons, the Court recommends that the district judge GRANT Defendants' motion to dismiss (ECF No. 32).
SCHEDULING ORDER
The Court will refer its Findings and Recommendation to a district judge. Objections, if any, are due within fourteen (14) days. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within fourteen (14) days. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.
IT IS SO ORDERED.