Rodriguez v. Cain

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

JONATHAN JASON RODRIGUEZ, Ca se No. 2:19-cv-00087-AR

Plaintiff, OPINION AND ORDER

v.

BRAD CAIN, et al.,

Defendants.

_____________________________________

ARMISTEAD, Magistrate Judge:

Introduction

Plaintiff Jonathan Jason Rodriguez is an adult in the custody of Snake River Correctional

Institution (“SCRI”). Compl. ¶ 3, ECF No. 2. Rodriguez, who is representing himself, brings this

civil rights action under 42 U.S.C. § 1983, against nine Oregon Department of Corrections

(“ODOC”) officials employed at SCRI. Id. ¶¶ 4-14. He asserts numerous claims against the

defendants “in their individual and official capacities,” including violations of the First, Eighth,

and Fourteenth Amendments. Id. ¶¶ 96-107.

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The defendants’ motion for summary judgment is currently before the court. Def. Mot.

for Summ. J. (“Def. Mot.”), ECF No. 63. For the reasons set forth below, the motion is granted

in part and denied in part.1

Preliminary Procedural Matter

After the defendants moved for summary judgment on May 24, 2021, the court issued the

following notice to Rodriguez:

The defendants have made a motion for summary judgment (Motion for

Summary Judgment [63]) by which they seek to have your case dismissed. A

motion for summary judgment under Rule 56 of the Federal Rules of Civil

Procedure will, if granted, end your case.

Rule 56 tells you what you must do in order to oppose a motion for

summary judgment. Generally, summary judgment must be granted when there is

no genuine dispute of material fact−−that is, if there is no real dispute about any

fact that would affect the result of your case, the party who asked for summary

judgment is entitled to judgment as a matter of law, which will end your case.

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 Notice, ECF No. 65. The court mailed Rodriguez this notice and directed him

to respond to the motion by June 24, 2021. Id. After receiving three extensions of time,

Rodriguez timely filed his response in opposition to summary judgment. Pl. Opp’n to Def. Mot.

for Summ. J., (“Pl. Opp’n”), ECF No. 72.

1 The parties have consented to jurisdiction by magistrate judge as permitted by 28 U.S.C.

§ 636(c)(1). See ECF No. 43.

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To support his opposition brief, Rodriguez submitted two declarations: one from himself

and one from a fellow prisoner, Jesse Fanus. Decl. of Jonathan J. Rodriguez (“Rodriguez Decl.),

ECF No. 73; Decl. of Jesse Fanus (“Fanus Decl.”), ECF No. 74. Additionally, Rodriguez’s

Complaint is verified—it contains a sworn statement declaring, under penalty of perjury, the

allegations therein are true and correct in accordance with 28 U.S.C. § 1746. Compl. at 28.

Therefore, the court may consider the verified Complaint as an opposing affidavit under Rule 56,

but only to the extent it expresses personal knowledge of admissible facts. See Lew v. Kona

Hosp., 754 F.2d 1420, 1423 (9th Cir. 1985).

Background

I. Parties

Rodriguez is an adult-in-custody (“AIC”) at SRCI, a prison run by the ODOC. Decl. of

James Taylor in Supp. of Def. Mot. for Summ. J. (“Taylor Decl.”) ¶ 3, attach. 1, ECF No. 64.

After entering ODOC custody in February 2016, Rodriguez was housed at SRCI from March 9,

2016, to March 14, 2018, when he was temporarily transferred to a prison in Pendleton, Oregon.

Id. Rodriguez returned to SCRI on September 12, 2018. Id. His earliest tentative release date is

July 29, 2024. Id.

Following incidents at SCRI in November and December 2018, Rodriguez filed this

action on January 18, 2019.2 See Compl. ¶¶ 4-14. He asserts civil rights claims against nine

SCRI officials: (1) superintendent Brad Cain; (2) assistant superintendent Jason Bell; (3) special

housing captain Thomas Jost; (4) special housing lieutenant Charles Anderson; (5) sergeant

2 Rodriguez also unsuccessfully sought leave to file an amended complaint on three

occasions. See Mots. to Amend, ECF Nos. 7, 12, 17. On October 1, 2020, the court denied these

requests for noncompliance with Local Rule 15-1(d)(1). Order, ECF No. 24. Accordingly, his

original complaint is the operative complaint in this action.

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Daniel Banner; (6) sergeant George Kautz; (7) corrections officer Nicholas Hansen; (8)

corrections officer Nathan Main; and (9) hearings officer Frank Serrano. Id. For simplicity, the

court will refer to defendants collectively or individually by their last names.

II. Underlying Incidents, Grievances, and Related Claims

A. November 20, 2018 – Alleged Assault (SCRI 139 and SCRI 009)

Rodriguez alleges that, on the afternoon of November 20, 2018, he met with an Oregon

State Police detective to discuss criminal activity that occurred while he was housed in

Pendleton, Oregon. Compl. ¶¶ 15-22. Defendants Kautz and Hansen escorted Rodriguez to and

from that meeting. Id. ¶ 17, 23-25. As they escorted him back to his cell, Rodriguez alleges that

Kautz and Hansen became angry, threatened Rodriguez to keep his head facing forward, and

“propelled [him] face first . . . into the edge of the steel doorframe” of his cell.3 Id. ¶¶ 22-25;

Rodriguez Decl. ¶ 2. Rodriguez alleges that, after he struck the doorframe, multiple officers

pinned him to the ground with their full body weight and kicked, kneed, and elbowed him into

submission. Compl. ¶¶ 26-28. Anderson was present, and Rodriguez alleges the incident was

filmed. Id. ¶¶ 30, 34. Following that beating, Rodriguez was placed in a leg restraint chair and

allegedly slammed into a wall as he was taken to an intake area, where he was stripped of most

of his clothing and placed in a holding cell. Id. ¶¶ 40-42. There, two nurses checked on his

injuries, and Rodriguez spoke with a behavioral health services counselor. Id. ¶¶ 44-50.

3 Defendant Kautz submitted an employee response to the grievance system describing this

incident from his perspective. See Taylor Decl. ¶ 14, attach. 5, at 7-8. Although Kautz’s response

differs from Rodriguez’s characterization of the incident, these disputed facts are immaterial to

the two issues—exhaustion and qualified immunity—raised in defendants’ summary judgment

motion. For clarity, where an underlying fact appears disputed, the court couches that fact in

terms of an “allegation” by either party.

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Rodriguez alleges that, despite his requests, SCRI staff refused to photograph his injuries. Id. ¶¶

57, 66, 79, 89.

After that incident, Rodriguez filed two grievances: SRCI 2018.11.139 (“SCRI 139”) and

SCRI 2018.12.009 (“SCRI 009”).4 Rodriguez filed this action on January 18, 2019, while his

first-level appeals of SCRI 139 and SCRI 009 were still pending. Id. ¶¶ 20, 36. Based on these

grievances, Rodriguez alleges that Kautz and Hansen used excessive force against him in

violation of the Eighth Amendment by “repeatedly slamming him face first into the wall and

doorframe.” Compl. ¶¶ 97, 98. He also alleges that Anderson, Banner, Bell, and Cain violated his

Eighth Amendment right to be free from excessive force by negligently failing to supervise and

correct the actions of their subordinates. Id. ¶¶ 99-102.

B. November 20, 2018 – Return to Empty Cell (SCRI 003)

Rodriguez alleges that, when he was returned to his cell the evening of November 20,

2018, he found that “everything except [his] mattress was taken.” Id. ¶ 53. He also contends that

Hansen had been “touching, playing with, and eating the food off of [his] dinner tray,” and that,

when Rodriguez asked for pain medication, Hanson stated he could get some from the supply

cart the next afternoon. Id. ¶¶ 54-55. These allegations are supported by the declaration of

another AIC, Jesse Fanus. Fanus Decl. ¶ 1-2. Fanus declares that he witnessed Officers Main and

Hansen removing property from Rodriguez’s cell, and that he saw “[H]ansen eating off one of

4 Rodriguez also attempted to file a grievance against the entire “HUSO response team” for

use of “excessive and unnecessary force.” See Taylor Decl. ¶ 29, attach. 9, at 19. The record

reflects that this grievance was “combined into one incident” with SCRI 009. Id. (explaining

Rodriguez cannot grieve the entire HUSO response team in a single grievance); see also, Compl.

¶ 93 (alleging he submitted five grievances based on incidents described in complaint).

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[Rodriguez’s dinner] trays and sticking his fingers in the food.” Id. ¶ 2. Fanus also states that he

heard Hanson refuse Rodriguez’s request for “tylenol.” Id.

To protest this incident, Rodriguez filed SCRI 2018.12.003 (“SCRI 003”) on November

28, 2018. Taylor Decl. ¶ 21, attach. 6, at 9. Based on that grievance, Rodriguez alleges that

Hansen and Main violated his Fourteenth Amendment right to Due Process by emptying his cell

of all possessions without warning. Compl. ¶¶ 103-104. He also alleges Hansen acted with

deliberate indifference by intentionally denying him access to medical care in violation of the

Eighth Amendment. Id. ¶ 105.

C. November 28, 2018 – Misconduct Hearing

Following the events of November 20, 2018, Rodriguez received two misconduct

charges. Compl. ¶¶ 56, 59. SCRI held a hearing on those charges on November 28, 2018, with

defendant Serrano presiding as the hearing officer. Id. ¶ 58. At the hearing, Rodriguez denied the

charges against him and asked Serrano to review “footage from the stationary cameras located in

the housing unit, sallyport, hallways, and staff office area.” Id. ¶ 61. Serrano declined this

request, and Rodriguez was found guilty of the charges. Id. ¶ 63. As a result, Rodriguez alleges

that he was issued a fine of $50.00 and 28 days loss of privileges. Id.; see also ODOC Loss of

Privileges Sanction Order, ECF No. 2-2. Based on Serrano’s refusal to review video evidence,

Rodriguez asserts that Serrano denied him due process in violation of the Fourteenth

Amendment. Compl. ¶ 106. There is no grievance associated with this claim because ODOC’s

Grievance Review System does not permit inmates to grieve “disciplinary hearings, findings and

sanctions.” See Taylor Decl. ¶ 9, attach. 2, at 5 (OAR 291-109-1040(3)(e)).

//

//

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D. December 7, 2018 – “Rat” Comment (SCRI 055)

Rodriguez alleges that, on December 7, 2018, he learned from another inmate that

Captain Jost referred to Rodriguez as a “rat” because he was “dropping kytes”—AIC written

communication forms—and filing grievances that were getting SCRI staff in trouble. Id. ¶ 90.

Based on that information, Rodriguez submitted SCRI 2018.12.055 (“SCRI 055”) on December

10, 2018. Taylor Decl. ¶ 37, attach. 10, at 8. In his complaint, Rodriguez alleges that Jost’s

comment constitutes unlawful retaliation against him for exercising his First Amendment rights

to free speech. Compl. ¶ 107.

III. Procedural History

Rodriguez took various steps to exhaust his administrative grievances, and the court

considers these efforts in greater detail below. Ultimately, however, Rodriguez opted to file his

complaint on January 18, 2019, before he had exhausted the related grievances. See Comp. ¶ 95

(admitting he had not yet exhausted the administrative remedies available to him). In a motion

for preliminary injunction, Rodriguez alleged that his decision to file this lawsuit before

exhausting his administrative remedies was due to “the severity of ongoing issues and threats to

[his] safety.” Id.; Mot. for Prelim. Inj., ECF No. 20. The court considered and denied that

motion, as well as two other requests for preliminary injunction in October and November 2020.

Order, ECF Nos. 26, 28, 35. Following several months of discovery, defendants moved for

summary judgment on May 24, 2021. Def. Mot., 16. Rodriguez opposes this motion.

Legal Standard

Summary judgment is appropriate where 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.” FED. R.

CIV. P. 56(a). The moving party has the burden of establishing the absence of a genuine issue of

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material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows 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. Id. at 324. A nonmoving party cannot

defeat summary judgment by relying on the allegations in the complaint, or with unsupported

conjecture or conclusory statements. Hernandez v. Spacelabs Medical, Inc., 343 F.3d 1107, 1112

(9th Cir. 2003). Thus, summary judgment should be entered against “a party who fails to make a

showing sufficient to establish the existence of an element essential to that party’s case, and on

which that party will bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322.

The court must view the evidence in the light most favorable to the nonmoving

party. Bell v. Cameron Meadows Land Co., 669 F.2d 1278, 1284 (9th Cir. 1982). All reasonable

doubt as to the existence of a genuine issue of fact should be resolved against the moving

party. Hector v. Wiens, 533 F.2d 429, 432 (9th Cir. 1976). Where different ultimate inferences

may be drawn, summary judgment is inappropriate. Sankovich v. Life Ins. Co. of North America,

638 F.2d 136, 140 (9th Cir. 1981). However, deference to the nonmoving party has limits. A

party asserting that a fact cannot be true or is genuinely disputed must support the assertion with

admissible evidence. FED. R. CIV. P. 56(C). Therefore, where “the record taken as a whole could

not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for

trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587

(1986) (internal quotations omitted).

Discussion

Defendants do not address the merits of Rodriguez’s claims, but they contend summary

judgment on all claims is proper because (I) Rodriguez failed to exhaust the underlying

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grievances, and (II) to the extent Rodriguez sues defendants in their official capacities, the

Eleventh Amendment bars his claims. Id. at 2.

Rodriguez concedes that he did not exhaust his grievances before filing this action, but he

argues there is a genuine dispute as to whether his failure to exhaust should be excused. Pl.

Opp’n, 16. The court agrees with Rodriguez, in part.

I. Failure to Exhaust

In general, exhaustion under the PLRA is mandatory. McKinney v. Carey, 311 F.3d 1198,

1199 (9th Cir. 2002) (citing Booth v. Churner, 532 U.S. 731, 741 (2001)). To satisfy this

requirement, an AIC must comply with the prison system’s “critical procedural rules” and appeal

the grievance to its highest level within that that system before filing a § 1983 action in court.

Griffin v. Arpaio, 557 F.3d 1117, 1119 (9th Cir. 2009); Woodford v. Ngo, 548 U.S. 81, 95

(2006). Exhaustion is mandatory, however, only as long as “administrative remedies . . . are

available.” Ross v. Blake, 578 U.S. 632, 648 (2016). “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) (en banc) (internal quotation marks omitted)

Failure to exhaust under the PLRA is an affirmative defense “that must be pled and

proved by a defendant.” Id. at 1168. The defendant bears the burden to prove that “there was an

available administrative remedy, and the prisoner did not exhaust that available remedy.” Id. at

1172. Once a defendant has made such a showing, the burden shifts to the plaintiff 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.

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

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shows a failure to exhaust. Id. at 1166, 1172. When an AIC has not exhausted his administrative

remedies, the court should dismiss the related claims without prejudice. Wyatt v. Terhune, 315

F.3d 1108, 1120 (9th Cir. 2003), overruled on other grounds by Albino, 747 F.3d at 1166. If a

complaint contains both exhausted and unexhausted claims, the court should proceed with the

exhausted claims. Jones v. Bock, 549 U.S. 199, 218 (2007).

As evidence of the administrative remedy available to Rodriguez, defendants submitted

the declaration of James Taylor, a temporary Grievance Coordinator employed at SCRI. Taylor

Decl. ¶ 1. The declaration explains that inmate grievances at SCRI are processed in accordance

with the ODOC Administrative rules governing Grievance Review System (Inmate), found in

Chapter 291, Division 109 of the Oregon Administrative Rules (“OAR”). Taylor Decl. ¶ 6,

attach. 2, at 7. Under those rules, “[i]f at any time the grievance coordinator determines the

inmate has pursued his/her issue through state or federal courts . . . the grievance process will

cease and the grievance will be returned to the inmate.” OAR 291-109-0160.

Defendants argue that Rodriguez’s claims are barred under the PLRA because he failed

to exhaust his administrative remedies before filing this action. Def. Mot., 2. Rodriguez does not

dispute that he filed his complaint before exhausting his administrative remedies. See Compl. ¶

95. Instead, he argues the court should excuse the exhaustion requirement because (1) an

emergency required him to file this action before he fully exhausted SCRI 139 and SCRI 009;

and (2) there is a genuine dispute that the grievance system was “effectively unavailable” to him

for SCRI 003 and SCRI 055. Pl. Opp’n, 8, 11. The court is unpersuaded by Rodriguez’s first

argument but persuaded by his second.

//

//

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A. Rodriguez failed to exhaust SCRI 139 and SCRI 009

The Supreme Court has expressly held that exhaustion under the PLRA is mandatory

unless the pertinent administrative remedies are “unavailable.” Ross v. Blake, 578 U.S. 632, 642

(2016). “[A]side from that exception, the PLRA’s text suggest no limits on an inmate’s

obligation to exhaust—irrespective of any ‘special circumstances.’” Id. at 639.

To explain why he filed this action before exhausting his administrative remedies,

Rodriguez alleges that emergency circumstances, i.e., “the severity of ongoing issues and threats

to [his] safety” drove him to request preliminary injunctive relief. Compl. ¶ 95. However, in

considering that requested relief, U.S. District Judge Karin J. Immergut concluded that

Rodriguez “failed to establish that he currently faces the type of immediate and credible threat of

irreparable harm necessary to justify extraordinary injunctive relief.” Order, 4, ECF No. 26.

Given Judge Immergut’s Order, the court does not waive the exhaustion requirement based on

the alleged emergency circumstances.

Additionally, Rodriguez has not presented any evidence to suggest that the grievance

system was effectively unavailable to him for SCRI 139 and SCRI 009. Instead, the evidence

demonstrates Rodriguez was able to fully pursue his administrative remedies for these grievances

after he filed this action. In SCRI 139, Rodriguez describes how Kautz, Hansen, and other SCRI

staff allegedly used excessive force against him while escorting him to his cell. Taylor Decl. ¶

13, attach. 5, at 7. The record reflects that the grievance coordinator accepted this grievance and

followed the review procedures set forth in OAR 291-109-0140. Id. Rodriguez was able to

pursue SCRI 139 through first- and second-level appeals, and the grievance review process

terminated on April 22, 2019, when the Eastside Institutions Administrator reviewed

Rodriguez’s second-level appeal. Id. ¶¶ 17-19, attach. 5, at 1. In SCRI 009, Rodriguez asserts

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that, rather than controlling his subordinates, Lieutenant Anderson “direct[ed] and encourag[ed]

staff to assault” him on November 20, 2018. Id. ¶ 29, attach. 9, at 14-15. As with SCRI 139, the

grievance coordinator accepted this grievance and followed the proper review procedures. Id. ¶

30, attach 9, at 12. Rodriguez pursued SCRI 009 through a second-level appeal, and the review

process terminated on February 13, 2019. Id. Because Rodriguez was able to pursue SCRI 139

and SCRI 009 through a second-level appeal, there is no dispute that the grievance system was

available to him for these grievances. Thus, Rodriguez failed to properly exhaust SCRI 139 and

SCRI 009 by filing this lawsuit before completing the grievance process. His related Eighth

Amendment claims against Kautz, Hansen, Anderson, Banner, Bell, and Cain are dismissed

without prejudice. See Compl. ¶¶ 97-102.

B. The grievance system was “effectively unavailable” for SCRI 003 and SCRI 055

Although exhaustion is generally mandatory under the PLRA, a court may waive the

exhaustion requirement where there is a genuine dispute that the grievance system was

“effectively unavailable” to the plaintiff. Ross, 578 U.S. at 639. The Supreme Court has

identified circumstances where administrative remedies may be unavailable, including: (1) where

an administrative procedure “operates as a simple dead end—with officers unable or consistently

unwilling to provide any relief to aggrieved inmates”; (2) where an administrative process is “so

opaque that it becomes, practically speaking, incapable of use”; and (3) “when prison

administrators thwart inmates from taking advantage of a grievance process through

machination, misrepresentation, or intimidation.” Id. at 644-45.

Rodriguez has presented sufficient evidence to raise a genuine dispute that, for grievance

numbers SCRI 003 and SCRI 055, the grievance system was effectively unavailable to him.

//

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1. SCRI 003

In SCRI 003, Rodriguez alleges that, when he returned to his cell on the evening of

November 20, 2018, defendants Main and Hansen had removed all of his possession, and

Hansen had “messed with” his food tray and refused his request for pain medication. Taylor

Decl., ¶ 21, attach. 6, at 9. Rodriguez argues that the grievance system was effectively

unavailable to him for SCRI 003 because he never received an employee response from the

grievance coordinator. The court agrees.

When processing an inmate’s grievance, the grievance coordinator is required to “send

the inmate grievance and employee’s . . . response to the inmate and retain copies for the file.”

Id. ¶ 7, attach 2, at 7 (OAR 291-109-0160). This step is important because, when appealing a

grievance, the inmate must submit “the original grievance, attachments, and staff response(s)”

with the appeal form. Id. ¶ 10, attach. 2, at 8 (OAR 291-109-0170).

Here, the grievance coordinator’s accepted SCRI 003 on December 4, 2018, and issued a

notice stating that the grievance was sent for response. Id. ¶ 22, attach. 6, at 8. The online system

used to track grievances reflects that the office received a response from Anderson on December

26, 2018. Id. at 7. However, a copy of the response was neither scanned into the system nor

apparently sent to Rodriguez. Id. at 7, 10. On January 20, 2019, Rodriguez inquired why he had

not received a response for SCRI 003. Id. ¶ 21, attach. 6, at 10. The grievance coordinator replied

that Rodriguez had “no overdue responses” in the system. Id. After receiving that reply,

Rodriguez attempted to file a first-level appeal, explaining on the appeal form that, because he

had not received an employee response despite his inquiries, he was treating the nonresponse as a

denial of his grievance. Id. ¶ 25, attach. 6, at 7. His appeal was denied. Id. In the accompanying

notice, the grievance coordinator explained that Rodriguez’s appeal was deficient because it

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failed to include the original employee response and was not filed “within 14 days” after

Rodriguez allegedly received that response. Id. at 6. Rodriguez resubmitted his firs- level appeal,

explaining that he could not comply with those rules because he had not received an employee

response. Id. ¶ 26, attach. 6, at 5. His appeal was denied on the same grounds. Id. Rodriguez

attempted to file a second-level appeal on July 10, 2019, which was again denied for failure to

attach the related staff response. Id. ¶ 27, attach. 6, at 1-2.

The evidence presented by both parties shows that, with respect to SCRI 003, the

grievance system was effectively unavailable to Rodriguez. Through no fault of his own and

despite his inquires, Rodriguez did not receive a copy of a staff response to this grievance, as

required by OAR 291-109-0160. Because he did not receive a response, he was unable to

successfully appeal SCRI 003, and the grievance system operated as a “simple dead end.”

Accordingly, the court finds cause to waive the exhaustion requirement for SCRI 003 and its

associated claims for relief. Rodriguez’s associated claims—his Fourteenth Amendment Due

Process claim against Hansen and Main and his Eighth Amendment deliberate indifference claim

against Hansen—survive defendants’ exhaustion argument. See Comp. ¶¶ 103-105.

2. SCRI 055

In SCRI 055, Rodriguez alleges that he “received information [that] Special Housing

Captain Jost is slandering my name [by] calling me a ‘rat’ for grieving” the incidents of

November 20, 2018. Taylor Decl. ¶ 37, attach. 10, at 8. Rodriguez argues that there is a genuine

dispute that the grievance system was effectively unavailable to him for SCRI 055 because the

grievance officers mischaracterized and wrongly refused to process his grievance. Pl. Opp’n, 18.

The court agrees.

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The grievance coordinator’s office received SCRI 055 on December 10, 2018, but it

denied the grievance and returned it to Rodriguez two days later. In the notice accompanying that

denial, the grievance coordinator explained that SCRI 055 was deficient because Rodriguez was

“[n]ot directly involved in the incident” and failed to demonstrate “unprofessional conduct or

error that has affected [him].” Id. at 7. Rodriguez attempted to resubmit SCRI 055, explaining

that the incident did “involve him” because the conversation was about him and a “subtle attack

on [his] right to seek redress.” Id. He also requested that the grievance coordinator provide a

fuller explanation if the grievance was again denied. Id. Soon after, his grievance was denied for

the same stated reasons. Id. at 4. Similarly, when Rodriguez attempted to appeal the grievance,

his appeal was denied on the grounds that inmates “[c]annot appeal a denied grievance.” Id. ¶ 38,

attach. 10, at 1.

Viewing this evidence in the light most favorable to Rodriguez, there is a genuine dispute

of material fact that prison officials misrepresented and improperly denied SCRI 055. As an

initial matter, the court is not persuaded that Rodriguez “lacked direct involvement” in the

incident, such that denial of the grievance was proper. Under the Grievance Review System, an

inmate may file a grievance regarding a number of matters, including “[a]ny unprofessional

behavior or action which may be directed toward an inmate by an employee.” Id. ¶ 7, attach 2, at

4 (OAR 291-109-0140(2)(c)). Here, Jost’s alleged comment referring to Rodriguez as a “rat” to

another inmate arguably constitutes such unprofessional behavior. Moreover, while Jost was not

speaking to Rodriguez, his comment was “directed toward” Rodriguez, both in reference and

potential consequences. Thus, there is a genuine dispute of material fact that SCRI 055 was

improperly denied. This denial operated as a “simple dead end” that rendered the grievance

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system effectively unavailable for SCRI 055; therefore, Rodriguez’s First Amendment retaliation

claim against Jost survives defendants’ exhaustion argument.

II. Eleventh Amendment

As alternative grounds for summary judgment, defendants argue that, to the extent

Rodriguez’s remaining claims target each defendant in his official capacity, the claims are barred

by the Eleventh Amendment. Def. Mot., 14. Rodriguez does not respond to this argument, except

to note that he also asserts each claim against defendants in their individual capacities. Pl. Opp’n,

6. There is not a genuine dispute of material fact on this issue.

In the absence of consent by the state or express abrogation by Congress, the Eleventh

Amendment bars all suits brought in federal court against states and their agencies. See Seminole

Tribe of Florida v. Florida, 517 U.S. 44, 53-54 (1996). Because a suit against a state official in

his 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).

Accordingly, to the extent Rodriguez seeks monetary damages from each defendant in his

official capacity, the Eleventh Amendment bars his claims. Rodriguez’s remaining claims

survive only to the extent that each is directed at Hansen, Main, Jost, or Serrano in their

individual capacities.

III. Remaining Claims

Based on the foregoing discussion, the following claims survive defendants’ motion for

summary judgment:

//

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(1) a Fourteenth Amendment claim against Hansen and Main, in their

individual capacities, for “depriving [Rodriguez] of due process when [they]

allegedly removed all of [his] property outside of his cell” on November 20, 2018.

See Compl. ¶¶ 103-104.

(2) an Eighth Amendment deliberate indifference claim against Hansen, in

his individual capacity, for “intentionally denying [Rodriguez] access to the most

basic medical care” on November 20, 2018, when Hansen refused Rodriguez’s

request for pain relief medication. See Id. ¶ 105.

(3) a First Amendment retaliation claim against Jost, in his individual

capacity, for “indirectly threatening” Rodriguez by referring to him as a “rat” to

another inmate, after Rodriguez had filed several grievances about the incidents of

November 20, 2018. Id. ¶ 107.

(4) a Fourteenth Amendment claim against Serrano, in his individual

capacity, for depriving Rodriguez of due process at the hearing on November 28,

2018, when he “refused to obtain video evidence and investigate the rule

violations” with which Rodriguez had been charged. Id. ¶ 106.

In their motion for summary judgment, defendants neither addressed the merits of these

claims nor reserved any right to brief those merits. See generally, Def. Mot. The court

notes that it expects defendants to address the merits or to reserve that right if they

reasonably anticipate the need to brief the merits of any remaining claims. Nevertheless,

to conserve judicial resources, the court directs the parties to file supplemental briefing to

address the merits and evidence underlying these remaining claims. See Portsmouth

Square Inc. v. Shareholders Protective Committee, 770 F.2d 866, 869 (discussing that, in

the absence of a formal motion, the court may grant summary judgment sua sponte if the

parties have notice and an opportunity to respond); see also Celotex Corp., 477 U.S. at

326 (“[D]istrict courts are widely acknowledged to possess the power to enter summary

judgments sua sponte, so long as the losing party was on notice that [he] had to come

forward with all of [his] evidence.”). The parties are directed to file briefing on the merits

of Rodriguez’s remaining claims, as stated below.

Page 17 – OPINION AND ORDER

Conclusion

Defendants’ motion for summary judgment (ECF No. 63) is GRANTED IN PART and

DENIED IN PART, as stated in this opinion. Defendants are directed to file a supplemental brief

addressing the merits of Rodriguez’s surviving claims within 30 days of this Opinion and Order.

Rodriguez is directed to file a response in opposition 30 days thereafter.

IT IS SO ORDERED.

DATED May 17, 2022.

TRFPREW ARMISTEAD

United ‘States Magistrate Judge

Page 18 — OPINION AND ORDER