Snider v. Oregon Department of Corrections

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PENDLETON DIVISION

CASEY SNIDER et al.

Plaintiffs, Case No. 2:20-cv-00510-MK

OPINION AND

vs. ORDER

OREGON DEPARTMENT OF

CORRECTIONS et al.

Defendants,

_________________________________________

KASUBHAI, United States Magistrate Judge:

Plaintiffs, Darrel Carlson and Jerry Anderson (for purposes of this motion “Plaintiffs”)

brought this class action alleging that Defendants willfully and deliberately refused to protect

Plaintiffs and putative class members from known dangers of assault from other inmates.1 Third

1 At this time, there are fourteen named plaintiffs. Defendants’ partial motion for summary

judgment only concerns two of the named Plaintiffs, Carlson and Anderson. We limit our

discussion to the parties relevant to Defendants’ motion.

Am. Compl. ¶ 2, ECF No. 28 (“TAC”). Defendants moved for partial summary judgment. See

Defs.’ Mot. Partial Summ. J. 1-2, ECF No. 55 (“Defs.’ Mot.”). Plaintiffs opposed the motion.

Resp. Defs.’ Response, ECF No. 62. All parties have consented to jurisdiction by a U.S.

Magistrate Judge. ECF No. 24. For the reasons that follow, Defendants’ partial motion for

summary judgment is GRANTED in part and DENIED in part.

BACKGROUND

Plaintiffs are two Adults in Custody (“AIC”) within the Oregon Department of

Corrections (“ODOC”). TAC ¶¶ 5, 10, ECF No. 28. Plaintiffs allege that in Oregon prisons,

“gang members still participating in gang activities are referred to as ‘active,’” while those who

have “left the gang are called ‘dropouts.’” Id. at ¶ 53. Inmates that are classified as dropouts “are

subject to violence at the hands of active gang members.” Id.

Prior to 2019, in accordance with Oregon’s policies some of the prisons housed dropouts

and active gang members in separate units. Id. at ¶ 54. In 2019, that policy was discontinued. Id.

Under the new system, ODOC provided only general population housing and incentive housing.

Id. Because of that policy, dropouts and active gang members were housed in the same units. Id.

Since the change in housing policy, Plaintiffs have been assaulted on several occasions. Id. at ¶¶

74–87, 95–100.

I. Carlson

Carlson is an AIC at the Two Rivers Corrections Institution (“TRCI”). TAC ¶ 6, ECF No.

28. Eynon Decl. ¶ 3, ECF No. 56. Carlson has been incarcerated since September 2011. Eynon

Decl. ¶ 6, ECF No. 56. In 2019, inmates assaulted Carlson on two separate occasions—April 10

and July 31. Id. at ¶¶ 78, 80. A purported gang member committed one of the assaults. Id. at ¶

80. During the time between April and September, Carlson filed two grievances unrelated to the

two assaults. Eynon Decl. Ex. 8, ECF No. 54. Carlson did not file any grievances related to the

April 10 and July 31 assaults against him. Id. at 11.

II. Anderson

Anderson is an AIC at the Oregon State Penitentiary (“OSP”). Kidwell Decl. ¶ 3, ECF

No. 57. ECF No. 28. Anderson alleged that in 2019, inmates assaulted him on three different

occasions—August 6, August 16, and November 19, 2019. TAC ¶¶ 96–100, ECF No. 28.

Anderson alleged that gang members committed two of those assaults. Id. at ¶¶ 96, 100.

Anderson sent a grievance on November 19 regarding the November 14 assault. Kidwell

Decl. Ex. 9 at 11, ECF No. 57 (“Anderson’s Grievances”). The OSP grievance office received

the grievance on December 3, which is 14 days after Anderson sent the grievance. Id. It is

unclear from the record what delivery method Anderson used and what protocol the Defendants

use to process grievance forms. The Defendants offered evidence that they deem a grievance is

received on the date that a grievance form is stamped “received” with the date the stamp was

placed on the form. Id. at Ex. 3, Ex. 9. OSP’s grievance office denied Anderson’s grievance

because it did not receive the grievance within 14 days of the assault, as required by Oregon’s

Administrative Rules (“OAR”). Id. at 12. In January 2020, Anderson attempted to appeal that

decision twice. Id. at 13–14. In one of the appeals, Anderson asserted that he submitted the

appeal in a timely manner. Id. at 13. In response to both of the appeals, OSP’s grievance office

denied it because “[a] denied initial grievance or appeal cannot be appealed.” Id. at 15, 18.

Anderson did not file any grievances relating to the first two previous assaults.

STANDARD OF REVIEW

Summary judgment is appropriate if the pleadings, depositions, answers to

interrogatories, affidavits, and admissions on file, if any, show “that there is no genuine dispute

as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). Substantive law on an issue determines the materiality of a fact. T.W. Elec. Servs.,

Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). Whether the evidence is

such that a reasonable jury could return a verdict for the nonmoving party determines the

authenticity of the dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The moving party has the burden of establishing the absence of a genuine issue of

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.

Special rules of construction apply when evaluating a summary judgment motion: (1) all

reasonable doubts as to the existence of genuine issues of material fact should be resolved

against the moving party; and (2) all inferences to be drawn from the underlying facts must be

viewed in the light most favorable to the nonmoving party. T.W. Elec., 809 F.2d at 630.

DISCUSSION

Plaintiffs bring two claims for relief against Defendants. First, Plaintiffs allege that

individually named defendants, in violation of 42 U.S.C. § 1983 and the Eighth Amendment,

failed to protect Plaintiffs by exposing them to violence. TAC ¶¶ 156–61, ECF No. 28. Second,

Plaintiffs allege that the ODOC negligently exposed Plaintiffs to known dangers. Id. at ¶¶ 162–

72. Defendants move for partial summary judgment on both claim because (1) Plaintiffs failed to

exhaust their administrative remedies and (2) Plaintiff’s second claim is barred by sovereign

immunity. Defs.’ Mot. 2–3, ECF No. 55. The Court addresses those arguments in turn.

I. Exhaustion of Administrative Remedies

Defendants contend Plaintiffs failed to exhaust their administrative remedies under OAR

291-109-0140(2). Plaintiffs agree that they either did not file a grievance or that the grievance

was untimely. Pls.’ Response 2, ECF No. Plaintiffs, however, argue that they should be excused

from the Prison Litigation Reform Act’s, (“PLRA”), 42 U.S.C. § 1997e, exhaustion requirement

because no administrative remedy was effectively available.

A. PLRA Exhaustion Standards

Under the PLRA, inmates must exhaust all available administrative remedies before

filing a federal action to address prison conditions or incidents. See 42 U.S.C § 1997e(a) (“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.”). The exhaustion requirement is

mandatory and requires compliance with both procedural and substantive elements of the prison

administrative process. Woodford v. Ngo, 548 U.S. 81, 85, 91 (2006) (stating that the PLRA

exhaustion requirement requires “proper” exhaustion and compliance “with an agency’s

deadlines and other critical procedural rules”); McKinney v. Carey, 311 F.3d 1198, 1199-1200

(9th Cir. 2002) (per curiam). Inmates must exhaust available administrative remedies before

filing a § 1983 action, including appealing grievance decisions to the highest level. Jackson v.

Fong, 870 F.3d 928, 933 (9th Cir. 2017).

If the defendant shows that the inmate did not exhaust an available administrative

remedy, “the burden shifts to the prisoner 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.” Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014);

see also Sapp v. Kimbrell, 623 F.3d 813, 822 (9th Cir. 2010) (explaining that the PLRA does not

require exhaustion when administrative remedies are “effectively unavailable”); Brown v. Valoff,

422 F.3d 926, 937 (9th Cir. 2005) (stating that an administrative remedy must be available “as a

practical matter”). Courts review the evidence in the light most favorable to the non-moving

party and draws all reasonable inference in the non-moving party’s favor. Albino, 747 F.3d at

1168.

B. Relevant Changes to Grievance Process

ODOC grievances are processed in accordance with ODOC’s Administrative Rules

Chapter 291, Division 109. Eynon Decl. ¶ 7, ECF No. 56; Kidwell Decl. ¶ 7, ECF No 57.

ODOC’s grievance rules were amended effective October 18, 2019. Here, four of the assaults

occurred prior to the effective date of the amendment of October 18, 2019, and one assault

occurred after the effective date. The Court discusses the OAR applicable prior to October 18,

2019, and then discusses the relevant changes implemented after October 18, 2019.

1. OAR Applicable Pre-October 18, 2019

AICs are generally encouraged to communicate with line staff verbally or in writing as

their primary means of resolving disputes prior to filing a grievance in order to handle questions

and complaints. Eynon Decl ¶ 8, ECF No. 56; Kidwell Decl ¶ 8, ECF No 57. “If an inmate is

unable to resolve an issue through informal communications, the department encourages the

inmate to seek resolution of the issue by submitting a written grievance.” OAR 291-109-

0140(1)(a) (2014) (amended and renumbered OAR 291-109-0210).

As relevant to the parties’ arguments, an inmate may file a grievance concerning:

(a) The misapplication of any administrative directive or operational procedure;

(b) The lack of an administrative directive or operational procedure;

(c) Any unprofessional behavior or action which may be directed toward an inmate

by an employee, contractor, or volunteer of the Department of Corrections or the

Oregon Corrections Enterprises[.]

OAR 291-109-0140(2) (2014). However, OAR 291-109-0140(3) (2014) outlines what an inmate

may not grieve. As relevant here, OAR 291-109-0140(3)(b) (2014) provides that an inmate

cannot grieve “[i]ncidents or actions for which there exists a separate internal department appeal

or review process as identified by an OAR for which an inmate may take part in[.]”

The Pre-October 18, 2019 OAR provided that the grievance coordinator must receive an

inmate’s grievance within 30 calendar days of the date of the incident or issue. OAR 291-109-

0150 (repealed by DOC 16-2019).

2. Post-October 18, 2019 OAR Amendments

Many of the relevant provisions after the amendment remain in place. For instance, AICs

are still encouraged to communicate with line staff verbally or in writing as their primary means

of resolving disputes prior to filing a grievance in order to handle questions and complaints.

Eynon Decl ¶ 8, ECF No. 56; Kidwell Decl ¶ 8, ECF No 57. However, after the amendments, an

inmate “may file a single grievance concerning any incident or issue regarding institutional life

that directly and personally affects that AIC.” OAR 291-109-0210(3) (emphasis added). OAR

291-109-0210(3) provides a non-exhaustive list of examples, which include the

“[m]isapplication of departmental policies, rules, or other directives.”

Particularly relevant here, OAR 291-109-0150 was repealed and grievances must now be

received by the institution grievance coordinator or designee within 14 calendar days from the

date of the incident or issue being grieved. OAR 291-109-0205(1).

C. Availability of Remedy

Plaintiffs do not dispute that they failed to file grievance relating to the April 10 and July

31 assaults on Carlson, and the August 6 and August 16 assaults on Anderson. Pls.’ Response 2,

ECF No. 62. Plaintiffs provide two arguments in support of their position that a remedy was

unavailable. First, Plaintiffs assert that OAR 291-109-0140(2) (2014) does not provide a remedy

for Plaintiffs because “their claims do not fall within any of the grievable subject matter.” Id. at

4. Alternatively, Plaintiffs argue that even if the assaults were grievable, Plaintiffs were barred

from exhausting their administrative remedies under OAR 291-109-0140(3), which states that an

inmate may not file a grievance if “a separate review process” is available.

1. Whether a Remedy was Available under OAR 291-109-0140(2)

Defendants argue that Plaintiffs failed to exhaust their administrative remedies because

they failed to grieve the misapplication of any departmental policies, rules, or directions and

unprofessional actions of employees. Defs.’ Mot. 5, ECF No. 55. Plaintiffs respond that their

claims do not fall within any of the grievable issues outlined under OAR 291-109-0140(2)

(2014).

This lawsuit concerns “Defendants’ willful and deliberate refusal [to] protect Plaintiffs . .

. from known dangers of assault from other inmates.” TAC ¶ 3, ECF No. 28. The TAC alleges

that “ODOC, through its policies and practices as crafted, implemented and enforced by

defendants, [ ]failed to protect inmates that are likely to be assaulted.” Id. The remedy Plaintiffs

seek, among other things, is “an injunction requiring that defendants undertake steps to ensure

that inmates are safely housed and not assaulted.” Id. The TAC alleges that Defendants

misapplied the policy in keeping Defendants safe and alleges that a policy is required to house

dropouts and gang members separately, i.e. that there is a lack of an administrative directive or

procedure. Furthermore, Plaintiffs concede that it is the policy of ODOC to protect inmates. And

that “ignoring potential threats from other inmates when they are part of a group, as opposed to a

specific individual” is contrary to “what ODOC’s policy provides.” Pls.’ Response 4, ECF No.

62.

Plaintiffs TAC alleges the misapplication of an administrative directive or operation

procedure. Because OAR 291-109-0140 (2014) provides that an inmate may file a grievance as

to the misapplication of any administrative directive or operational procedure or

the lack of an administrative directive or operational procedure, Plaintiffs’ allegations are

grievable.

2. Whether an Administrative Remedy was not Available because a Separate

Review Process Existed

Alternatively, Plaintiffs argue that an administrative remedy was unavailable because a

separate review process existed under OAR 291-046 or, alternatively, OAR 291-069. However,

under OAR 291-046-0100, an AIC may file a petition for administrative review if they have been

involuntarily placed into protective custody and under OAR 291-069-0280, an AIC may file a

petition for administrative review if ODOC designates them a “high alert” management inmate.

Plaintiffs have not alleged that they were involuntarily placed into protective custody or that

ODOC designated them as high alert management inmates. The exception listed under OAR

291-109-0140(3)(b) (2014) is not applicable because Plaintiffs did not have a “separate internal

department appeal or review process.” Plaintiffs were required to grieve under OAR 291-109-

0140 (2014). Plaintiffs failed to file a grievance. Plaintiffs failed to exhaust their administrative

remedies for the April 10, July 31, August 6, and August 16 assaults. The Court grants summary

judgment in favor of Defendants as to those assaults.

3. November 14 Assault Against Anderson

Because Defendants have demonstrated that there was an available administrative

remedy, “the burden shifts to the prisoner 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.” Albino, 747 F.3d at 1172; see also Sapp v. Kimbrell,

623 F.3d 813, 822 (9th Cir. 2010) (explaining that the PLRA does not require exhaustion when

administrative remedies are “effectively unavailable”); Brown v. Valoff, 422 F.3d 926, 937 (9th

Cir. 2005) (stating that an administrative remedy must be available “as a practical matter”).

Here, Anderson sent a grievance five days after the November 14 assault. Anderson’s

Grievances, ECF No. 57. The OSP grievance office received the grievance 14 days after Plaintiff

sent it. Id. OSP’s grievance office denied the grievance because it did not receive the grievance

within 14 days of the incident. Id. at 12. The grievance process in place after October 18, 2019,

requires that grievances be received within 14 calendar days from the date of the incident. OAR

291-109-0205(1). Defendants do not dispute that Anderson sent the grievance on November 19,

2019. Anderson attempted to appeal that decision twice in January 2020. Anderson’s Grievances,

¶¶ 14, 17, ECF No. 57. Both times, OSP’s grievance office denied it because “[a] denied initial

grievance or appeal cannot be appealed.” Id. at 15, 18.

Anderson sent a grievance well within the 14-day window for the grievance to be

received. The Court is unpersuaded by the evidence in the record that where the Defendants

acknowledge that Anderson sent the grievance within five days of the incident, and where the

Defendants are in control of the process through which grievances are sent and then processed,

then they could not have received the grievance within the limited time the rules require. If the

Defendants are to require grievances to be filed within fourteen days of an incident, then they

must ensure a more robust process for receipt of grievances if they cannot accommodate receipt

of grievances nine days after they are sent. The Court finds a remedy was effectively unavailable

under these circumstances.

II. Sovereign Immunity

Defendant ODOC asserts that the Eleventh Amendment bars Plaintiffs from bringing

their state law claims to this Court for adjudication. Defs.’ Mot. 8, ECF No. 55. A state may

waive its immunity to suit in federal court by express consent. Pennhurst State School and Hosp.

et al. v. Halderman, 465 U.S. 89, 99 (1984). Without such waiver or an abrogation of immunity

by Congress, a federal court lacks jurisdiction over a state for violation of its own laws. Id. at

121. When a court determines that it lacks subject-matter jurisdiction, it “must dismiss the

action.” Fed. R. Civ. P. 12(h)(3).

Plaintiffs do not dispute Defendants’ contention that state law governing Plaintiffs’ state

law claims do not provide the express consent necessary for waiver of immunity. Pls.’ Response

7, ECF No. 62. However, Plaintiffs expressly oppose Defendants’ partial motion to dismiss in

order to preserve their right to refile the claims in state court. See ORS 12.220(1)(allowing

plaintiff to commence a new action within 180 days of an involuntary dismissal without

prejudice). The Court grants Defendants motion for summary judgment. ODOC is dismissed as a

defendant.

CONCLUSION

For the reasons above, Defendants’ motion for partial summary judgment (ECF No. 55)

is GRANTED in part and DENIED in part. The Court grants Defendants’ motion for summary

judgment arising out of Darrel Carlson and Jerry Anderson’s claims, except Anderson § 1983

claim pertaining to the incident arising out of November 14, 2019. The Court grants Defendants’

motion for summary judgment as it relates to defendant ODOC.

DATED this 27th day of December 2022.

s/ Mustafa T. Kasubhai

MUSTAFA T. KASUBHAI (He / Him)

United States Magistrate Judge