The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
AARON DALE EATON, Case No. 2:20-cv-1251-SI
Plaintiff, OPINION AND ORDER
v.
TWO RIVERS CORRECTION
INSTITUTION GRIEVANCE
COORDINATOR EYNON, et al,
Defendants.
Aaron Dale Eaton. Plaintiff, Pro Se
Ellen F. Rosenblum, Oregon Attorney General, and Vanessa A. Nordyke, and Jill Conbere,
Assistant Attorneys General, OREGON DEPARTMENT OF JUSTICE, 1162 Court Street NE, Salem,
OR 97301. Of Attorneys for Defendants Blewett, Darcy, Eynon, Lemmon, Maney, Robinson,
Rossi, Stark, and Willis.
Scott G. O’Donnell and Trenton Joseph Andreasen, KEATING JONES HUGHES PC, 200 SW Market
Street, Suite 900, Portland, OR 97201. Of Attorneys for Defendant LeCloux.
Michael H. Simon, District Judge.
Plaintiff Aaron Dale Eaton (Eaton) is an adult in custody (AIC) at the Snake River
Correctional Institution (SRCI) and previously was in custody at Two Rivers Correctional
Institution (TRCI). Representing himself, Eaton alleges that Defendants violated his
constitutional rights under the First, Eighth, and Fourteenth Amendments, as well as his rights
under the Americans with Disabilities Act (ADA), by forcing him to use showers infested with
black mold and failing to provide him with appropriate medical care. Defendants are current and
former employees of the Oregon Department of Corrections (ODOC) at TRCI. Now before the
Court are four motions: two motions for summary judgment filed by Defendants (ECF 140 and
ECF 162), Eaton’s motion to incorporate certain documents (ECF 178), and Eaton’s two motions
to supplement the record (ECF 181 and ECF 186). For the reasons stated below, all five motions
are GRANTED. By separate Judgment, this case is terminated.
STANDARDS
A. Motion for Summary Judgment
A party is entitled to 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.”
Fed. R. Civ. P. 56(a). The moving party has the burden of establishing the absence of a genuine
dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court must view
the evidence in the light most favorable to the non-movant and draw all reasonable inferences in
the non-movant’s favor. Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th
Cir. 2001). Although “[c]redibility determinations, the weighing of the evidence, and the
drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling
on a motion for summary judgment,” the “mere existence of a scintilla of evidence in support of
the plaintiff’s position [is] insufficient . . . .” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252,
255 (1986). “Where the record taken as a whole could not lead a rational trier of fact to find for
the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986) (citation and quotation marks omitted).
B. Pro se Pleading Standard
A court must liberally construe the filings of a self-represented, or pro se, plaintiff and
afford the plaintiff the benefit of any reasonable doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th
Cir. 2010). Further, “a pro se complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.” Florer v. Congregation Pidyon
Shevuyim, N.A., 639 F.3d 916, 923 n.4 (9th Cir. 2011) (quotation marks omitted). “Unless it is
absolutely clear that no amendment can cure the defect, . . . a pro se litigant is entitled to notice
of the complaint’s deficiencies and an opportunity to amend prior to dismissal of the action.”
Garity v. APWU Nat’l Lab. Org., 828 F.3d 848, 854 (9th Cir. 2016) (alteration in original)
(quoting Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam)). Under Rule
8(a)(2) of the Federal Rules of Civil Procedure, however, every complaint must contain “a short
and plain statement of the claim showing that the pleader is entitled to relief.” This standard
“does not require ‘detailed factual allegations,’” but does demand “more than an unadorned, the
defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “A pleading that offers ‘labels
and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Id.
(quoting Twombly, 550 U.S. at 555).
BACKGROUND
Eaton’s Fourth Amended Complaint (ECF 96) is the operative complaint for purposes of
the pending motions. In that pleading, Eaton names ten Defendants, primarily using only their
last names and identifying their roles within ODOC. Fourth Am. Compl. (ECF 96) ¶¶ 8-17.
Defendant Stark was a manager of the TRCI Physical Plant. Id. ¶ 8. Defendant Darcy was an
assistant manager at the TRCI Physical Plant. Id. ¶ 9. Defendants Willis and Lemmon were both
employed as “unit [five] day officers” at TRCI. Id. ¶¶ 10-11. Defendants Rossi and Eynon were
TRCI grievance coordinators. Id. ¶¶ 12-13. Defendant Maney was a medical provider at TRCI.
Id. ¶ 14. Defendant Lieutenant Robinson is alleged to have been “employed as an agent of the
State of Oregon, assigned to the [TRCI.]” Id. ¶ 16. Defendant T. Blewett was the Superintendent
of TRCI. Id. ¶ 17. Collectively, the Court refers to these as the “State Defendants.” The
remaining Defendant is Cynthia LeCloux, who was one of Eaton’s medical providers at all
relevant times. Id. ¶ 15.
Eaton has been in the custody of ODOC since July 13, 2017 and has an “earliest release
date” of August 25, 2027. Eynon Decl. (ECF 141) ¶ 3. Eaton was housed at TRCI from
August 10, 2017, to July 1, 2021, at which time he was transferred to SRCI. Id. Eaton’s claims in
this lawsuit arise out of the alleged presence of black mold in the showers of Eaton’s unit at
TRCI. Fourth Am. Compl. ¶¶ 20, 24. During his time at TRCI, Eaton submitted more than 60
grievances, five of which concerned his allegations of black mold. See Eynon Decl. Ex. 4
(ECF 141-4) at 1-4.
The process for grievances and appeals in Oregon is stated in Oregon Administrative
Rule (OAR) 291-109-0205. An AIC must submit his grievance within 14 calendar days of the
grieved incident or issue. OAR 291-109-0205(1). The facility shall respond within 35 (or, in
some circumstances, 49) calendar days. OAR 291-109-0205(2). If a grievance is denied, an AIC
wanting to appeal must submit an initial appeal no later than 14 days from the date the response
was sent. OAR 291-109-0205(3). The facility shall respond to an initial appeal within either 35
or 49 days, depending on certain circumstances. OAR 291-109-0205(4). An AIC may then
submit a final appeal within 14 days. OAR 291-109-0205(5). The facility shall respond to the
final appeal within either 35 or 49 days. OAR 291-109-0205(6).
The following is an overview of Eaton’s five relevant grievances and their respective
dispositions:
A. Grievance 1 (TRCI.2020.03.148)
On March 20, 2020, Eaton submitted to the Grievance Coordinator’s Office a grievance
alleging failure by “Physical Plant/Medical” staff to address “toxic black mold” that was
“discovered in most of the unit showers on or about [February 28, 2020].” Eynon Decl. Ex. 5
(ECF 141-5) at 9-12 (Grievance 1). The Grievance Coordinator’s Office responded on April 14,
2020, stating that the grievance did not meet the requirements of OAR 291-109-0210, due to
Eaton’s failure to “demonstrate[] misapplication of department policies, rules or other directives,
unprofessional actions of department employees, volunteers, or contractors, inadequate medical
or mental health treatment, sexual abuse or sexual harassment or excessive use of force by
department employees.” Id. at 13. Additionally, the response noted that Grievance 1 “contains
multiple issues—mold and medical treatment,” but that “[a]n AIC may only request review of
one matter, action, or incident per grievance.” Id. Grievance 1 was returned to Eaton for
corrections due to those deficiencies. Id. at 15-16. After Eaton twice resubmitted his grievance,
Defendant Stark responded on June 11, 2020, stating in relevant part:
Upon my recent visual inspection of the Unit 2 showers, nothing
visible was seen concerning this allegation. There was no visible
discoloration or other notable characteristics, including visible
textures or odor. The condition of the Unit 2 showers appear to be
maintained in an ordinary fashion. . . . Cleaning products are
regularly provided to each housing unit to ensure that the
cleanliness of the showers, as well as the entire unit, is maintained.
Additionally, during the current virus concerns of covid-19,
effective April 14, 2020, bleach has been provided to all housing
units as an additional cleaning agent. Housing unit staff have
reported hearing no complaints for several months about the
condition of the Unit 2 showers.
Id. at 8.
Eaton filed an initial appeal, objecting, among other things, that Stark was not qualified
to determine whether there was mold in the showers and that other staff, including Robinson, had
observed the showers and “verified the absolute presence of black mold.” Id. at 4-6. The appeal
was returned for correction and ultimately denied by Defendant Blewett, who wrote that
Robinson “stated that he never made a comment nor agreed that the showers had ‘black mold’ as
he is not a subject matter specialist.” Id. at 3. Blewett informed Eaton that the showers were
scheduled to be replaced soon. Id. Eaton filed a final appeal, asserting that “[t]he showers being
replaced now does not make my injuries go away,” and stating that he had sent samples of the
mold out for testing. Id. at 2. Mark Nooth, Eastside Institution Administrator, responded on
November 2, 2020, concurring with the initial denial of the appeal, and noting that this
“conclude[d] the grievance review process for this matter.” Id. at 1.
B. Grievance 2 (TRCI.2020.04.020)
On April 2, 2020, Eaton filed a grievance alleging that Defendant Rossi failed to respond
to Eaton’s communications. Eynon Decl. Ex. 6 (ECF 141-6) at 2 (Grievance 2). Grievance 2—
like Grievance 1—was returned to Eaton for non-compliance with OAR 291-109-0210. Id. at 1.
The record does not reflect that Eaton either resubmitted his grievance or appealed.
C. Grievance 3 (TRCI.2020.04.186)
On April 20, 2020, Eaton filed a grievance alleging that “Physical plant” staff “failed to
protect [him] from the mold in [the] unit 2 showers which you have been notified about.” Eynon
Decl. Ex. 7 (ECF 141-7) at 11 (Grievance 3). Grievance 3 was denied on April 27, 2020. Id. On
May 22, 2020, Grievance 3 was returned to Eaton by Defendant Rossi, on the grounds that it did
not qualify under OAR 291-109-0210 and that AICs were not permitted to submit more than four
AIC grievances per calendar month. Id. at 10. Eaton filed an initial appeal, arguing that Rossi
was “hindering, stopping, chilling, obstructing my protected right of the grievance process.” Id.
at 6. Rossi denied the appeal, noting that Eaton did not dispute that he had already submitted four
grievances that month. Id. at 4. Rossi additionally stated that Eaton’s “concerns have been taken
seriously and investigated by Physical Plant Manager Stark,” whose findings Rossi laid out. Id.
Eaton filed a final appeal, contending that, because one or two of his grievances from the month
of April had already been denied when he filed Grievance 3, he did not have four active
grievances pending, and so should not have been prevented from filing another. Id. at 2. Rossi
denied Eaton’s final appeal on July 1, 2020. Id. at 1.
D. Grievance 4 (TRCI.2020.05.036)
Eaton filed a grievance against “[t]he Director of ODOC” on May 10, 2020. Eynon Decl.
Ex. 8 (ECF 141-8) at 8-10 (Grievance 4). Eaton alleged that ODOC Director Colette Peters1
failed to provide for his safety, as required by Oregon law, based on the presence of black mold
in the unit two showers. Id. Defendant Stark responded to Grievance 4 on June 10, 2020, with
the same information that he provided in his response to Grievance 1. Id. at 7; see also Eynon
Decl. Ex. 5 (ECF 141-5) at 8. Specifically, Stark assured Eaton that there was no observable
mold in the showers, that appropriate cleaning products were provided, and that heightened
cleaning procedures had been implemented because of the COVID-19 pandemic. Eynon Decl.
Ex. 8 (ECF 141-8) at 7. Eaton filed an initial appeal, id. at 5-6, which Defendant Blewett denied,
id. at 4. Eaton then submitted a final appeal, id. at 2-3, which Nooth denied on August 26, 2020,
id. at 1.
E. Grievance 5 (TRCI.2020.05.077)
Eaton submitted his fifth relevant grievance on May 8, 2020, against “Medical Provider.”
Eynon Decl. Ex. 9 (ECF 141-9) at 8-10 (Grievance 5). Grievance 5 alleged that medical staff had
1 Eaton has not named Colette Peters as a Defendant in this lawsuit.
“failed to treat, and or test [Eaton]” for certain respiratory conditions caused by black mold, and
Eaton requested “adequate health and medical care for persons confined.” Id. at 8. He requested
to “have the provider not a nurse see me.” Id. at 10. Grievance 5 was returned to Eaton for non-
compliance with a variety of rules, id. at 12, and ultimately responded to substantively on June
24, 2020, id. at 7. The response stated that “[d]ocumentation shows [Eaton’s] long history of
asthma and COPD, with corresponding and successful treatments. [Eaton has] not presented any
additional symptoms that would indicate other than exacerbation of either condition.” Id. at 7.
The response noted that “[n]urses are capable of assessing very effectively and consulting with
Providers to assure needs are met,” and also found that Eaton had “been seen, assessed and
treated appropriately as indicated.” Id. Eaton filed an initial appeal. Id. at 4-6. Deputy Medical
Director Dr. Warren Roberts, M.D., responded to Eaton’s appeal, and stated that
“[d]ocumentation confirms you are being seen and treated appropriately for the symptoms you
have referred to in your grievance appeal.” Id. at 3. Eaton filed a final appeal, stating that he had
trouble breathing and was in pain, and requesting treatment. Id. at 2. J. Bugher, Assistant
Director of Health Services, denied Eaton’s final appeal, stating again that Eaton had been
“evaluated appropriately by qualified Medical personnel and given treatment according to
Community Standards and Practices. You have been evaluated by Nurses at Sick Call, who
consulted with the Provider. You have been prescribed an Albuterol inhaler, and an additional
inhaler; Wixela, as well as received a dose pack of Prednisolone.” Id. at 1.
DISCUSSION
The Court first addresses Eaton’s three pending motions and then the two motions for
summary judgment filed by Defendant LeCloux and the State Defendants.
A. Eaton’s Motions to Incorporate Certain Documents and Supplement the Record
After completing his briefing on both of motions for summary judgment, Eaton filed a
one-page motion “Request[ing] the Court to Incorporate Declarations and Written Deposition”
on March 28, 2022. ECF 178. Attached to Eaton’s motion are two declarations by Eaton,
ECF 178-1, 178-2, and a copy of Defendant LeCloux’s written deposition, with notations made
by Eaton included on the document, ECF 178-3. Neither the State Defendants nor Defendant
LeCloux responded to that motion. After the time for responding to that motion concluded, Eaton
filed a motion asking to “add[] to the court record, new evidence that was just received by the
plaintiff.” ECF 181 at 1. Eaton attached to that motion his own declaration and what appears to
be a document detailing the side effects of certain medications. ECF 181 at 3-5.
The State Defendants responded, stating that they had “no objection to the untimely
motion to supplement.” ECF 182 at 2. On July 6, 2022, Defendant LeCloux responded that she
too had no objections. ECF 183. Eaton then filed on July 29, 2022, a motion to add evidence.
ECF 186. To that motion, Eaton attached a one-page document entitled “Oregon Department of
Corrections Progress Notes,” which detailed Eaton’s medical history. Id. at 2. The document
states that Eaton has “[m]oderately severe to severe obstructive lung disease,” recommends that
Eaton continue to use albuterol, and concludes that no further testing was necessary at the time
of the writing of that report. Id. The State Defendants filed a response, indicating that they again
had no objection to the “untimely motion to supplement.” ECF 188.
The Court GRANTS Eaton’s motion to incorporate certain documents (ECF 176) and his
two motions to supplement the record (ECF 181 and ECF 186). Thus, in deciding Defendants’
motions for summary judgment, discussed next, the Court has considered all evidence submitted
by Eaton.
B. Motions for Summary Judgment
Eaton’s Fourth Amended Complaint asserts four claims, alleging violations of his
constitutional rights under: (1) the Eighth Amendment; (2) the First Amendment; (3) the
Fourteenth Amendment; and 4) the ADA. Although Eaton’s Complaint states that he brings each
of his four claims against all Defendants, only his first and fourth claims—Eighth Amendment
violations and violations of the ADA, respectively—relate to Defendant LeCloux’s conduct.
Defendant LeCloux moves for summary judgment against both of those claims, and the State
Defendants move for summary judgment against all four claims. The State Defendants
additionally move for summary judgment on the grounds that Eaton has not exhausted his claims
as required by the Prison Litigation Reform Act (PLRA) against certain State Defendants and
that Eaton has not demonstrated that State Defendant Blewett was personally involved in the
alleged constitutional violations. The Court first addresses the PLRA and personal involvement
arguments and then addresses the motions for summary judgment associated with each of
Eaton’s four claims.
1. Claims Two and Three
Eaton’s second and third claims allege that the grievance process proceeded in a manner
inconsistent with his First and Fourteenth Amendment rights, respectively. Fourth Am. Compl.
(ECF 96) ¶¶ 122-131. Although Eaton’s second and third claims specify that they are brought
against “all defendants,” id. at 21-22, those claims relate exclusively to Defendants Blewett,
Rossi, and Eynon, and do not mention any of the other defendants. For the reasons stated below,
the Court grants the motion for summary judgment in favor of Defendants Blewett, Rossi, and
Eynon with respect to Eaton’s First and Fourteenth Amendment claims.
a. First Amendment
Eaton makes three arguments under the First Amendment. First, he alleges that the TRCI
grievance procedure is inadequate and violates his First Amendment right “to petition ODOC for
redress of grievance[s]” and that “this policy alone is retaliatory” and “violates [Eaton’s] rights
under the First Amendment.” Id. ¶ 123. Second, he alleges that Defendants are “taking adverse
actions against [Eaton] because of [his] protected conduct” and that certain administrative rules
are “being abused” by Defendants such that Eaton’s exercise of his First Amendment rights have
been chilled. Id. ¶ 124. Third, Eaton alleges that Defendants Eynon and Rossi intentionally
delayed the grievance process to “hinder, stymie, [and] chill [Eaton’s] right to access the court
for redress of grievances thereby Violating the First Amendment.” Id. ¶ 126.
The First Amendment right to file prison grievances is “[o]f fundamental import to
prisoners.” Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2005). It is clearly established law in
the Ninth Circuit that “retaliatory actions taken against a prisoner for having exercised those
rights” violate the First Amendment. Id. To prevail on a First Amendment retaliation claim,
Eaton must demonstrate that “a state actor took some adverse action against an inmate because
of that prisoner’s protected conduct, and that such action chilled the inmate’s exercise of his First
Amendment rights and the action did not reasonably advance a legitimate correctional goal.” Id.
at 567-68 (cleaned up).
Eaton contends that the TRCI grievance procedure is inadequate and is, itself, retaliatory.
Fourth Am. Compl (ECF 96) ¶ 123. To the extent that Eaton claims that the grievance procedure
itself violates his constitutional rights, the Court considers that question below in addressing his
Fourteenth Amendment claim.2 For purposes of his First Amendment claim, however, Eaton has
not presented any evidence showing that the rules themselves constitute an adverse action
against him sufficient to maintain a First Amendment claim. At most, the evidence of adverse
actions in the record demonstrates only that Eaton’s grievances were denied. Nothing in the
record supports an inference that a TRCI employee retaliated against Eaton because of the
grievances he filed. Nor has he presented evidence suggesting that Defendants intentionally
delayed processing any of Eaton’s grievances. Accordingly, Eaton has not shown a genuine issue
for trial on his First Amendment claims against Blewett, Rossi, and Eynon.
b. Fourteenth Amendment
Eaton’s third claim alleges that Blewett, Eynon, and Rossi violated Eaton’s Fourteenth
Amendment rights by “originally denying [Grievance 1] then accepting it after a period of time,
[which] was intentionally done to delay, hinder, stymie, chill, [Eaton’s] right to access the court
for redress of grievances.” Fourth Am. Compl. (ECF 96) ¶ 128. Eaton also alleges that TRCI
rules and the actions of Defendants do not allow the Plaintiff due process, which is protected
conduct, and that this rule is being abused by Defendants. Id. at ¶ 129. As described above,
however, Eaton has not presented any evidence showing a genuine issue for trial that Blewett,
Eynon, and Rossi intentionally mishandled his grievances, such that their actions constitute a
violation of the Fourteenth Amendment. The Court notes that it is well established that “the
actions of . . . prison officials in reviewing . . . internal appeal[s] cannot create liability under
§ 1983.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003). Accordingly, Eaton cannot
prevail on his argument that Defendants were incorrect in their assessment of his grievances.
2 The Court notes that, in a separate case, it previously held that Eaton failed to state a
First Amendment claim under the theory that the TRCI grievance procedure is inadequate. See
Eaton v. Blewett, 2021 WL 3559462, at *3 (D. Or. Aug. 11, 2021).
Because he has not provided any additional evidence of Defendants’ allegedly wrongful
intentions, Eaton’s Fourteenth Amendment claim does not survive summary judgment.
2. PLRA Exhaustion
State Defendants Rossi, Darcy, Willis, Lemmon, Eynon, Maney, and Robinson argue that
they are entitled to summary judgment because the evidence, even when viewed in a light most
favorable to Eaton, “shows a failure to exhaust.” Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir.
2014). Because this Court has already determined that Defendants Rossi and Eynon are entitled
to summary judgment on the only two claims asserted against them, the Court does not consider
whether Eaton exhausted his remedies against these two defendants. Neither Defendant LeCloux
nor Defendants Stark and Blewett assert an exhaustion argument.
The Prison Litigation Reform Act, 42 U.S.C. § 1997e, provides in part:
No 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). This exhaustion requirement serves two primary purposes: to protect
agency authority by requiring adherence to agency procedures and by allowing agencies an
opportunity to correct their own mistakes and to promote efficient resolution of disputes.
Woodford v. Ngo, 548 U.S. 81, 89 (2006). Exhaustion requirements are directed toward parties
who, “if given the choice, would not voluntarily exhaust.” Id. Thus, to satisfy the PLRA
exhaustion requirement, a prisoner must “properly” exhaust administrative remedies, including
“compliance with an agency’s deadlines.” Id. at 90-91.
A prisoner’s failure to exhaust administrative remedies may be excused “when
circumstances render administrative remedies ‘effectively unavailable.’” Sapp v. Kimbrell, 623
F.3d 813, 822 (9th Cir. 2010) (per curiam) (quoting Nunez v. Duncan, 591 F.3d 1217, 1226 (9th
Cir. 2010)). “To be available, a remedy must be available ‘as a practical matter’; it must be
‘capable of use; at hand.’” Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015) (quoting
Albino, 747 F.3d at 1171). Courts employ a burden-shifting framework in analyzing
administrative exhaustion. First, the defendant must “prove that there was an available
administrative remedy and that the prisoner did not exhaust that available remedy.” Williams,
775 F.3d at 1191. 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 may include a “‘showing that the local remedies were
ineffective, unobtainable, unduly prolonged, inadequate, or obviously futile.’” Id. (quoting
Albino, 747 F.3d at 1172). “The ultimate burden of proof, however, remains with the
defendants.” Id.
The State Defendants asserting failure to exhaust argue that Eaton is required to name
particular prison staff in his grievances in order to exhaust the administrative remedies against
those staff members. That is not a correct statement of the law. In Reyes v. Smith, the Ninth
Circuit considered whether a prisoner plaintiff “failed to exhaust administrative remedies
because his grievance did not name all staff members involved in his case.” 810 F.3d 654, 657
(9th Cir. 2016). The Ninth Circuit joined oher circuits in holding that, when prison officials
“decide an inmate’s grievance on the merits, the purposes of the PLRA exhaustion requirement
have been fully served: prison officials have had a fair opportunity to correct any claimed
deprivation and an administrative record supporting the prison’s decision has been developed.”
Id. at 658. Put another way: “The grievance process is only required to alert prison officials to a
problem, not to provide personal notice to a particular official that he may be sued.” Id. at 659
(cleaned up). Thus, “a prisoner’s failure to list all staff members involved in an incident in his
inmate grievance, or to fully describe the involvement of staff members in the incident, will not
necessarily preclude his exhaustion of administrative remedies.” Estrada v. California Corr.
Inst., 2021 WL 3268555, at *5 (E.D. Cal. July 30, 2021) (citing Reyes, 810 F.3d at 658). There
must, however, “be a ‘sufficient connection’ between the claim in the appeal and the unidentified
defendants such that prison officials can be said to have had ‘notice of the alleged deprivation’
and an ‘opportunity to resolve it.’” Estrada, 2021 WL 3268555, at *6 (citing Reyes, 810 F.3d
at 659). Thus, the operative question for defendants who were not named in the underlying
grievances is whether there is a sufficient connection between the alleged deprivation and the
unidentified defendant. With that analytic framework in mind, the Court considers whether Eaton
exhausted his administrative remedies with respect to Defendants Willis, Robinson, Maney,
Darcy, and Lemmon individually.
a. Willis
In Grievance 1, Eaton states that Defendant “Willis DID HIS DUTY calling for the bio-
hazard orderly.” Eynon Decl. Ex. 5 (ECF 141-5) at 9. Prison officials acknowledged this in
returning Grievance 1 to Eaton: “[A]side from Officer Willis, have you informed any other staff
of these concerns?” Id. at 15. Eaton does not, in any grievance, express dissatisfaction with
Willis, and rather indicated that Willis was the only TRCI employee with whom he was satisfied.
The Court is not persuaded that the laudatory comments here serve to put a prison employee or
official on notice of an alleged deprivation. Although Eaton need not name all the staff members
involved in the alleged deprivations, there must “be a ‘sufficient connection’ between the claim
in the appeal and the unidentified defendants such that prison officials can be said to have had
‘notice of the alleged deprivation’ and an ‘opportunity to resolve it.’” Estrada, 2021
WL 3268555, at *6 (citing Reyes, 810 F.3d at 659). Eaton’s grievances do not provide a
sufficient connection between Willis and the alleged deprivations, in which he appears to
explicitly acknowledge that Willis did not participate. Eaton’s grievances would not put either
Willis or any prison officials on notice that there was a matter to “resolve” with respect to Willis.
Thus, the Court grants Willis’s motion for summary judgment.
b. Robinson
Although not expressly listed as the grieved party on any of Eaton’s grievances,
Defendant Robinson named in documents filed by Eaton in several of his grievances. Eynon
Decl. Ex. 5 (ECF 141-5) at 5 (“L.T. Robinson came to the unit (2) . . . and verified the absolute
presence of black mold[.]”); Eynon Decl. Ex. 7 (ECF 141-7) at 2 (“And if there is no issue then
why is L.T. Robinson telling me that all showers in TRCI are having the tile removed due to
mold issues?”); Eynon Decl. Ex. 8 (ECF 141-8) at 5-6 (“[T]hese allegations [of black mold] have
been confirmed by L.T. Robinson on May 11th he took pictures of the mold . . . So you[‘re]
saying the pictures of the mold L.T. Robinson took is ‘ordinary’ hmm. .”); id. at 2-3
(“Mr. Stark’s review showed that anything discovered by L.T. Robinson was remedied so you
are clearly stating that L.T. Robinson was here first, hmm . . . Nope Mr. Stark was here first . . .
How can what Mr. Stark did fix L.T. Robinson and what L.T. Robinson found?”). The crux of
Eaton’s claims is that TRCI staff knew of the mold and did not take actions to remedy it. Eaton’s
numerous references to Robinson’s alleged knowledge of the mold is sufficient to put prison
officials on notice of the alleged deprivations. The Court denies Robinson’s argument based on
lack of exhaustion.
c. Maney
In Grievance 5, Eaton named as the grieved party as “Medical Provider.” Eynon Decl.
Ex. 9 (ECF 141-9) at 8. He noted in a later filing related to that grievance that he had “no clue as
to the name of [his] provider.” Id. at 11. Although Grievance 5 does not name Maney
specifically, subsequent declarations make clear that Maney was one of Eaton’s medical
providers, along with Defendant LeCloux (who has not moved for summary judgment on the
basis of exhaustion), and that Eaton complained of mold issues to Maney. See ECF 174-1 at 38
(“Provider Maney has prescribed me inhalers due to breathing issues. Provider Maney has also
renewed prescriptions for inhalers.”); see also ECF 174-2 at 17 (AIC communication form
directed to Provider Maney complaining of mold); see also id. at 58 (“During my entire time at
[TRCI], I was never treated for the mold exposure that I repeatedly informed both Provider
LeCloux and Provider Maney of on multiple medical visits.”); see also id. at 63 (stating that
Maney issued inhaler prescriptions); see also id. at 65 (indicating that Eaton spoke to Maney and
LeCloux about his difficulties breathing); see also ECF 176 at 18 (“Any one of my T.R.C.I.
medical providers, LeCloux and Maney could have taken the following actions to abate the
exposure.”). Maney does not dispute that he was one of Eaton’s medical providers and that
Grievance 5 named Eaton’s “Medical Provider” as the grieved party. The fact that Eaton did not
name Maney specifically does not mean that he has failed to exhaust his claims, where it is
undisputed that Eaton properly grieved his “medical providers,” of which Maney was one. Thus,
the content of this grievance was sufficient to put Maney and prison officials on notice of
Eaton’s claims against Maney and to give an opportunity to resolve the issues. The Court denies
Maney’s argument based on lack of exhaustion.
d. Darcy
As with Maney, Darcy is not mentioned in any of Eaton’s five grievances. Eaton alleges
that Maney is the “Physical Plant asst. manager.” Fourth Am. Compl. (ECF 96) ¶ 9. There is no
evidence in the record, however, regarding Darcy or whether he is, in fact, the assistant manager
of Physical Plant at TRCI. Without any record evidence to that effect, the evidence does not
demonstrate that Eaton exhausted his administrative remedies with respect to Darcy and so the
Court grants Darcy’s motion for summary judgment on that basis.
e. Lemmon
The Court is not persuaded that Eaton’s grievances sufficiently put prison officials on
notice of his claims against Defendant Lemmon. Lemmon is not identified in any of the five
grievances or any of their supporting documents and it is not clear from the face of the complaint
what Eaton alleges Lemmon’s role was in the alleged deprivations. The evidence does not create
a genuine dispute of material fact as to Eaton’s failure to exhaust his available administrative
remedies against Lemmon. Therefore, the Court grants Lemmon’s motion for summary
judgment on that basis.
In summary, the Court grants the motion for summary judgment with respect to
Defendants Willis, Darcy, and Lemmon based on lack of exhaustion. The Court, however, finds
at least an issue of fact on the question of exhaustion regarding Defendants Robinson and
Maney.
3. Personal Involvement
State Defendant Blewett moves from summary judgment against all claims asserted
against him arguing “lack of personal involvement.” ECF 140 at 5.3 Blewett correctly states that
“[a] supervisor is only liable for constitutional violations of his subordinates if the supervisor
participated in or directed the violations, or knew of the violations and failed to act to prevent
them. There is no respondeat superior liability under section 1983.” Taylor v. List, 880
3 The heading of this section of State Defendants’ motion reads “Peters and Blewett
should be dismissed for lack of personal involvement.” ECF 140 at 5. “Peters” appears to refer to
Colette Peters, Director of the Oregon Department of Corrections. As noted, Colette Peters is
not, and never has been, a named defendant in this action. See n.1, supra.
Additionally, the Court notes that, although Defendant Blewett appears to move to
dismiss, the pending motion is one for summary judgment. The Court thus considers whether
there is exists a genuine dispute of material fact as to Blewett’s personal involvement, not
whether Eaton has failed to state a claim.
F.2d 1040, 1045 (9th Cir. 1989) (citing Ybarra v. Reno Thunderbird Mobile Home Village, 723
F.2d 675, 680-81 (9th Cir. 1984)). “A defendant may be held liable as a supervisor under § 1983
‘if there exists either (1) his or her personal involvement in the constitutional deprivation, or
(2) a sufficient causal connection between the supervisor’s wrongful conduct and the
constitutional violation.’” Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (quoting Hansen v.
Black, 885 F.2d 642, 646 (9th Cir. 1989)). The requisite showing can be established by
demonstrating that the supervisor: (1) set in motion a series of acts by others or knowingly
refused to terminate a series of acts by others, which the supervisor knew or reasonably should
have known would cause others to inflict constitutional injury; (2) had his or her own culpable
action or inaction in the training, supervision, or control of his or her subordinates; (3)
acquiesced in the constitutional deprivation by subordinates; or (4) engaged in conduct that
shows reckless or callous indifference to the rights of others. Id. at 1207-08; see also Felarca v.
Birgeneau, 891 F.3d 809, 820 (9th Cir. 2018) (“The requisite causal connection can be
established by setting in motion a series of acts by others, or by knowingly refusing to terminate
a series of acts by others, which the supervisor knew or reasonably should have known would
cause others to inflict a constitutional injury.” (citing Starr, 652 F.3d at 1207-08)). “A plaintiff
must allege facts, not simply conclusions, that show that an individual was personally involved
in the deprivation of [the plaintiff’s] civil rights.” Barren v. Harrington, 152 F.3d 1193, 1194
(9th Cir. 1998).
Eaton, however, does not allege that Blewett is “liable for constitutional violations of his
subordinates.” Taylor, 880 F.2d at 1045. Rather, Eaton clarifies in his response that Blewett was
himself informed of the health risks posed by the black mold and had the authority to move
Eaton’s housing assignment but did not do so. ECF 174 at 14. This clarification is supported by
the Fourth Amended Complaint, which alleges that Eaton informed Blewett and others of
information regarding the mold exposure, Fourth Am. Compl. (ECF 96) ¶ 94, and that Blewett,
among other things, violated the ADA and Eaton’s Eighth Amendment rights when Blewett
himself failed “to remove [Eaton] from the housing unit” with the showers at issue, id. ¶ 136.
Eaton has presented evidence supporting his allegation that Blewett was aware of his complaints
that mold was present in the showers; in his responses to Eaton’s second request for admissions,
Blewett agreed that he was aware of Eaton’s complaints. ECF 174-1 at 50. In two “AIC
Communication Forms,” one dated July 27, 2020, and the other dated September 2, 2020, Eaton
specifically requested that Blewett address the shower mold issues. Id. at 46-47. The record
evidence sufficiently supports Eaton’s claim that Blewett was personally involved in the alleged
constitutional violations such that dismissal of Blewett from this action based on a lack of
personal involvement is not warranted.
4. Eighth Amendment
The Eighth Amendment’s prohibition against cruel and unusual punishment extends to
the “deliberate indifference to serious medical needs of prisoners.” Estelle v. Gamble, 429
U.S. 97, 104 (1976). To state a claim under § 1983 for a violation of the Eighth Amendment, a
prisoner must satisfy a two-part test. Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004).
First, the prisoner must allege that “that the prison official deprived the prisoner of the ‘minimal
civilized measure of life’s necessities.’” Id. at 1057 (quoting Hallett v. Morgan, 296 F.3d 732,
744 (9th Cir. 2002)). Second, the prisoner must allege that “the prison official ‘acted with
deliberate indifference in doing so.’” Id. (quoting Hallett, 296 F.3d at 744).
To allege that a prison official acted with deliberate indifference, the prisoner must allege
“(a) a purposeful act or failure to respond to a prisoner’s pain or possible medical need and (b)
harm caused by the indifference.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).
“Indifference ‘may appear when prison officials deny, delay or intentionally interfere with
medical treatment, or it may be shown by the way in which prison physicians provide medical
care.’” Id. (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1991)). But “[m]ere
negligence in diagnosing or treating a medical condition, without more, does not violate a
prisoner’s Eighth Amendment rights.” Hutchinson v. United States, 838 F.2d 390, 394 (9th
Cir. 1988).
a. Defendant LeCloux
Defendant LeCloux moves for summary judgment against Eaton’s Eighth Amendment
claim against her, on the ground that Eaton has not shown a genuine issue for trial that she acted
with deliberate indifference in providing him medical care. There is no genuine dispute of
material fact as to the care LeCloux provided to Eaton. LeCloux was a medical provider at TRCI
for two brief periods only—from August 25, 2020, to November 25, 2020, and from January 11,
2021, to March 19, 2021. LeCloux Decl. (ECF 163) ¶ 2. LeCloux saw Eaton twice—once on
September 23, 2020, and once on October 25, 2020. Id. ¶¶ 3-5. Eaton’s September appointment
was a regularly scheduled asthma and COPD visit. Id. ¶ 3.
At that appointment, Eaton informed LeCloux of the mold issue and complained of
trouble breathing. Id. ¶ 4. Based on those complaints, she scheduled him for a follow-up four
weeks later, rather than the typical four months. Id. At the October follow-up appointment,
LeCloux did not find anything of note but, based on Eaton’s continued complaints of mold and
trouble breathing, she ordered a Pulmonary Function Test to assess his lung function and a trial
of a Long-Acting Beta Agonist inhaler. Id. ¶ 5. Eaton asserts that LeCloux “could have moved
[him] with the easy actions of a medical move or even to let [him] shower down in the medical
depart[ment] . . . yet chose not to.” ECF 175 at 6. To prevail on a deliberate indifference claim,
however, requires more than a difference in opinion as to the proper course of treatment. See
Gordon v. Cnty. of Orange, 6 F.4th 961, 970 (2021) (“In cases involving choices between
alternative courses of treatment, plaintiff must show that the course of treatment the doctors
chose was medically unacceptable under the circumstances and that they chose this course in
conscious disregard of an excessive risk to plaintiff’s health.” (cleaned up)). Eaton has failed to
present evidence showing a genuine issue that Defendant LeCloux’s conduct amounted to
deliberate indifference to Eaton’s serious medical needs. See Estelle, 429 U.S. at 106. Thus, the
Court grants Defendant LeCloux’s motion for summary judgment against Eaton’s Eighth
Amendment claim.
b. State Defendants
The State Defendants also move for summary judgment against Eaton’s Eighth
Amendment claim, arguing that Eaton cannot show a deprivation of “the minimal civilized
measure of life’s necessities,” that Eaton received appropriate treatment for his respiratory
symptoms, and that Eaton cannot demonstrate that the remaining State Defendants acted with the
requisite mental state.
The Court is persuaded that Eaton has not shown a genuine issue of material fact as to the
State Defendants’ mental state required to sustain his Eighth Amendment claim. The record does
not reflect that the State Defendants acted with deliberate indifference regarding Eaton’s
allegations of unsafe shower conditions. In fact, the record reflects that, following receipt of
Eaton’s complaints, TRCI staff used bleach to clean the showers in question. See ECF 140-1 at
3-4, ECF 141-5 at 8. Eaton does not appear to dispute that staff used bleach to clean the showers,
but argues that bleach is not the appropriate cleaning solution to use on black mold and that he
informed prison officials of that fact when he submitted a document entitled “Truth About Mold”
with one of his grievances. See ECF 141-7 at 7 (“DO NOT use bleach . . . on mold.” (emphasis
in original)). These actions do not suggest deliberate indifference; while the actions taken in
response to his complaints may, in Eaton’s view, be inadequate, the record before the Court on
these motions does not suggest that the State Defendants’ conduct rose to the level of deliberate
indifference. In the absence of evidence regarding the State Defendants’ mental state, Eaton has
not shown a genuine issue regarding his Eighth Amendment claim against the State Defendants.
The Court grants the State Defendants’ motion for summary judgment on Eaton’s Eighth
Amendment claim.
5. Americans with Disabilities Act
Title II of the ADA provides:
[N]o qualified individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied the
benefits of the services, programs, or activities of a public entity,
or be subjected to discrimination by any such entity.
42 U.S.C. § 12132. Title II covers discrimination against inmates in state prisons. Penn. Dep’t of
Corr. v. Yeskey, 524 U.S. 206, 210 (1998). The implementing regulations for § 12132 explain
that discrimination on the basis of a disability include instances when a prisoner with a disability
is “denied the benefits of, the services, programs, or activities of a public entity” because the
prison’s facilities are “inaccessible to or unusable by individuals with disabilities.” 28 C.F.R.
§ 35.152(b)(1).
To prevail on an ADA claim, Eaton must show that: “(1) he is a ‘qualified individual
with a disability’; (2) he was either excluded from participation in or denied the benefits of a
public entity’s services, programs, or activities, or was otherwise discriminated against by the
public entity; and (3) such exclusion, denial of benefits, or discrimination was by reason of his
disability.” Updike v. Multnomah County, 870 F.3d 939, 949 (9th Cir. 2017) (quoting Duvall v.
Cnty. of Kitsap, 260 F.3d 1124, 1135 (9th Cir. 2001), as am. on denial of reh’g en banc (Oct. 11,
2001)).4
a. Defendant LeCloux
As with his Eighth Amendment claim, Eaton’s ADA claim against Defendant LeCloux
rests primarily on Eaton’s disagreement with her choice of tests and treatments. See ECF 175
at 9 (“Defendant [LeCloux] . . . says [Eaton] was appropriately treated, yet even by Dr. Gulick’s
statements made to plaintiff . . . this is not true . . . Defendant [LeCloux] could have ordered
imaging, blood tests, outside consultant, in-house doctor, showers in medical, a move to another
unit [and] all this could have been completed by LeCloux.”). Eaton does not allege that
Defendant LeCloux treated him differently than other non-disabled inmates because of his
disability; rather, he merely argues that the care she provided was insufficient. This is not
sufficient to create a genuine dispute of material fact on Eaton’s ADA claim against Defendant
LeCloux. “The ADA prohibits discrimination because of disability, not inadequate treatment for
disability.” Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1022 (9th Cir. 2010). The Court
grants Defendant LeCloux’s motion for summary judgment as to Eaton’s ADA claim.
b. State Defendants
Eaton alleges that the State Defendants violated his rights under the ADA by effectively
preventing him from using the Unit 2 showers, when they failed to address the mold issue
4 As with his earlier versions of his complaint, Eaton’s ADA claim is asserted against all
Defendants “in their individual and or official capacities as applicable.” Fourth Am. Compl.
(ECF 96) at 2. “Although individual defendants may not be sued in their individual capacities
under Title II of the ADA, they may be sued in their official capacities because suing an
individual in his official capacity is treated the same as suing the entity itself.” Becker v. Oregon,
170 F. Supp. 2d 1061, 1066 (D. Or. 2001). Thus, the Court construes Eaton’s ADA claim as one
against Defendants in their official capacities. A plaintiff may simultaneously sue prison officials
in their official capacities for an ADA claim and in their individual capacities for a § 1983 claim.
Id.
adequately. The State Defendants argue that they did not exclude Eaton or deny his ability to use
the shower and that Eaton has presented no evidence that any exclusion or denial was by reason
of his disability. ECF 140 at 14-16. The Court agrees. The Court grants the State Defendants’
motion for summary judgment as to Eaton’s ADA claim.
CONCLUSION
The Court GRANTS Eaton’s motions to incorporate certain documents and to
supplement the record (ECF 178, ECF 181, and ECF 186). The Court also GRANTS both
Defendant LeCloux’s Motion for Summary Judgment (ECF 162) and the State Defendants’
Motion for Summary Judgment (ECF 140). By separate Judgment, this case is terminated.
IT IS SO ORDERED.
DATED this 30th day of August, 2022.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge