Blanscet v. Oregon Department of Corrections

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

WILLIAM BLANSCET, Ca se No. 6:21-cv-00301-AR

Plaintiff, OPINION AND ORDER

v.

OREGON DEPARTMENT OF

CORRECTIONS; OREGON STATE

PENITENTIARY; REED PAULSON, M.D.,

individually and in his personal capacity;

and DOES 1-3, individually and in their

personal capacity,

Defendants.

_____________________________________

ARMISTEAD, Magistrate Judge

Plaintiff William Blanscet, an adult in the custody of the Oregon Department of

Corrections (ODOC) and held at Oregon State Penitentiary (OSP), brings this action asserting

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four claims under Oregon common law and 42 U.S.C. § 1983.1 In Claims 1 and 2, Blanscet

alleges that defendant Reed Paulson, M.D.2 was negligent—and that ODOC and OSP were

vicariously liable for his negligence—by failing to order adequate imaging and medication for

his hip pain, discontinuing his prescription for anti-anxiety medication, ordering him to undergo

physical therapy, and failing to diagnose his prostate cancer in a timely manner. (Compl. ¶¶ 21-

29, ECF No. 1.) In Claims 3 and 4, he alleges that Paulson violated his Eighth Amendment right

to be free from cruel and unusual punishment by acting with deliberate indifference to his

medical needs and by delaying necessary medical treatment for his prostate cancer. (Id. ¶¶ 30-

45.)

Defendants move for summary judgment on all of Blanscet’s claims, arguing that he

failed to fully exhaust his administrative remedies as required by the Prison Litigation Reform

Act (PLRA) of 1955, 42 U.S.C. § 1997e(a). (Defs.’ Mot. Summ. J. at 6-7, ECF No. 44.)

Alternatively, they argue that summary judgment is appropriate on Claims 3 and 4 because

Blanscet has not raised a genuine dispute of material fact that Paulson acted with deliberate

indifference to his serious medical need.

As explained below, defendants’ motion is granted.3

1 The court has federal question jurisdiction over Blanscet’s § 1983 claims under 28 U.S.C.

§ 1331, and supplemental jurisdiction over his related state law claims under 28 U.S.C. § 1367.

2 Blanscet also brought this action against Does 1-3—whom he alleged were “individuals

acting within the course and scope of their employment [and under the color of state law] or in

the alternative in an agency capacity with ODOC and OSP.” (Compl. ¶ 4.) Blanscet has not

ascertained the identity of the Doe defendants and now appears to assert Claims 2 through 4

solely against Paulson.

3 The parties have consented to jurisdiction by magistrate judge as under 28 U.S.C. §

636(c)(1). (Full Consent, ECF No. 18.)

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BACKGROUND

A. Evidence

For purposes of this summary judgment dispute, the parties submitted a joint statement

stipulating to certain general facts about Blanscet’s medical history and the grievances that he

filed while in ODOC custody. (Joint Statement Agreed Facts, ECF No. 42.) The joint statement

is accompanied by five exhibits: (1) a record of physician’s orders made between June 2017 and

January 2019; (2) copies of Blanscet’s medical progress notes between May 2018 and January

2019; (3) a record of physician’s orders between January 2019 and March 2019; (4) copies of

progress notes taken between January 2019 and March 2019; and (5) a copy of a grievance

submitted by Blanscet in January 2022. (Id. ¶¶ 12-16, Exs. A-E.)

Defendants also submitted declarations from Elleanor Chin, the Senior Assistant

Attorney General for ODOC’s Trial Division, and Brent Erikson, the Discrimination Complaint

and ADA Coordinator at OSP. (Decl. of Elleanor Chin, ECF No. 44-1; Decl. of Brent Erikson,

ECF No. 44-2.) Erikson’s declaration is accompanied by three exhibits: (1) a copy of the ODOC

grievance form; (2) a copy of Blanscet’s Complaint Log History; and (3) a copy of a grievance

submitted by Blanscet in November 2018.

Blanscet submitted two declarations with his response opposing defendant’s motion for

summary judgment. First, he relies on the declaration of Susan Lawrence, M.D, who is prepared

to testify as an expert witness in this matter. (Decl. of Susan Lawrence, M.D. ¶ 1, ECF No. 55).

Lawrence reviewed Blanscet’s ODOC medical records, the transcript of Blanscet’s deposition on

November 12, 2021; the transcript of Paulson’s deposition on December 27, 2021; and ODOC’s

radiology policies and procedures. (Id. ¶ 5.) Blanscet also submitted the declaration of his

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counsel, Amanda Reilly. (Decl. of Amanda Reilly, ECF No. 56.) Reilly’s declaration is

accompanied by five exhibits: (1) excerpts of Blanscet’s deposition; (2) excerpts of Paulson’s

deposition; (3) a copy of a progress note written by Paulson on December 17, 2018; (4) copies of

AIC communication forms that Blanscet sent to Paulson and OSP staff during the relevant

period; and (5) excerpts of Blanscet’s relevant medical records. From those materials, the court

constructs the following timeline of Blanscet’s medical history.

B. Relevant Medical History

Blanscet is an adult-in-custody (AIC), who arrived at OSP on January 16, 2007. (Joint

Statement ¶¶ 2-3.) OSP is an ODOC institution located in Salem, Oregon. Paulson is an Oregon-

licensed physician employed by ODOC Health Services.

In May 2018, Blanscet complained of hip pain to Health Services. (Id. ¶ 7.)

Subsequently, on June 14, he submitted a kyte—an AIC written communication form—stating

that he “heard [his] hip pop while playing softball” and was unable to walk downstairs due to hip

pain. (Reilly Decl. ¶ 5, Ex 4 at 1). He was scheduled to see a nurse. (Id.) One week later, he

requested a follow-up appointment, stating that he was able to walk downstairs again. (Id. ¶ 5,

Ex. 4 at 2.) He saw Paulson, and an x-ray was performed on June 27, which was read as showing

“developing osteoarthritis.” (Id. ¶ 3, Ex. 2 at 36 (Dep. of Reed Paulson); Lawrence Decl. ¶ 8.)

On July 20, Blanscet communicated that his hip pain had worsened and inquired about “shots for

ongoing, protracted pain.” (Reilly Decl. ¶ 5, Ex. 4 at 3.) Paulson saw Blanscet, and Blanscet

received a cortisone shot to treat his pain. (Id. ¶ 2, Ex. 1 at 19 (Dep. of William Blanscet).)

Blanscet sent another kyte to Paulson on October 10, 2018, stating that his hip pain had

worsened. (Id. ¶ 5, Ex. 4 at 4.) At the next appointment, Paulson recommended physical therapy,

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and Blanscet underwent PT evaluation on November 7. (Id. ¶ 6, Ex. 5 at 22.) Clinical notes from

PT dated November 28, 2018, December 12, 2018, and January 2, 2019, reflect that Blanscet’s

pain did not improve and reportedly worsened. (Id. at 16-21.)

On December 16, 2018, Blanscet stated that he was experiencing “UNBEARABLE

PAIN,” and regression from physical therapy and that he feared “permanent injury.” (Id. ¶ 5, Ex.

4 at 5.) He was scheduled for pain assessment. At an appointment with Paulson on December 17,

2018, Blanscet expressed frustration that his medical needs were not being taken seriously and

stated that he “might have to retain a lawyer.” (Id. ¶ 2, Ex. 1 at 6.) Paulson advised him that

“legal threats could be considered a form of extortion” and noted “subtle legal threats –

counselled re: extortion” in his progress note for that appointment. (Id. ¶¶ 3-4, Exs. 2-3.)

On January 15, 2019, Blanscet submitted a kyte stating that he was in agony and

expressing frustration that his “current physical condition has fallen on deaf ears” and that the

“lack of empathy for [his] pain [was] disconcerting.” (Id. ¶ 5, Ex. 4 at 6.) At an appointment on

January 18, Paulson ordered crutches, a Torodol injection for pain management, and an x-ray of

Blanscet’s pelvis. (Id. ¶ 6, Ex. 5 at 10; Lawrence Decl. ¶¶ 13-14.)

In a kyte dated February 18, 2019, Blanscet stated that the Torodol injection relieved his

pain for only 24 hours and that the “stairs to my cell are becoming [a] problem and my current

level of pain is intolerable.” (Reilly Decl. ¶ 6, Ex. 5 at 7.) He had an appointment with Paulson,

and an MRI was performed on February 26, 2019. Following a CT guided biopsy performed on

March 18, 2019, Blanscet was diagnosed with Stage IV metastatic prostate cancer. (Id. ¶ 16;

Joint Statement ¶ 9).

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After his diagnosis, Blanscet received treatment for prostate cancer, including radiation

and chemotherapy. (Joint Statement ¶ 10.) On April 3, 2019, he was admitted to Salem Hospital

for pain crisis, where he was found to have a pulmonary embolism. (Reilly Decl. ¶ 6, Ex. 5 at 1-

5). He was discharged in stable condition on April 12 and returned to OSP. (Id.) Blanscet filed

this action on February 25, 2021. (ECF No. 1.) At that time, his prostate cancer was reportedly in

remission. (Joint Statement ¶ 11.)

C. Blanscet’s Grievances

Blanscet filed three grievances during his time in ODOC custody. (Joint Statement ¶ 4.)

He filed his first grievance, OSP 2018-10-00069, requesting anxiety medication in October 2009.

(Erikson Decl. ¶ 13.) Due to its retention policies, ODOC no longer has a copy of that grievance.

In his second grievance, OSP 2018-11-053A—which was received by the Grievance

Office on November 20, 2018—Blanscet reported that he had not received a specific anti-anxiety

medication. (Id. ¶ 15, Ex. 3 at 4.) His ODOC medical provider responded that the requested

medication was contraindicated for him and noted that he instead had agreed to an alternative

treatment plan prescribing two different anti-anxiety medications. (Id. at 3.) Blanscet filed an

initial appeal. (Id. at 2.) ODOC’s Chief Psychiatrist, responded to that appeal explaining that,

given Blanscet’s history of “misusing multiple substances,” it would be problematic to prescribe

the requested medication. (Id. at 1.) Blanscet did not file a second-level appeal.

Blanscet submitted his third grievance, OSP 2022-01-063, on December 5, 2021—nearly

ten months after filing this action. (Joint Statement ¶ 4, Ex. E.) In that grievance, Blanscet

requested a shoe lift that had been approved by a podiatrist and complained that the delay of this

medical device was a “perpetuation of the same pre-existing indifference to [his] well-being and

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[liberties] as a human being.” His grievance was accepted on January 18, 2022, and Blanscet’s

request for a shoe lift was approved. (Erikson Decl. ¶ 13, Ex. 2.)

LEGAL STANDARD

Summary judgment is appropriate if “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 party

moving for summary judgment bears the initial responsibility of informing the court of the basis

for the motion and identifying portions of the pleadings, depositions, answers to interrogatories,

admissions, or affidavits that demonstrate the absence of a triable issue of material fact. Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986).

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 (citing FED. R. CIV. P. 56(e)). 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). 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).

DISCUSSION

Defendants contend that Blanscet’s § 1983 claims4 should be dismissed because he did

not file any grievances regarding the alleged misconduct underlying those claims and therefore

4 In their summary judgment motion, defendants originally argued that all of Blanscet’s

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did not exhaust his administrative remedies as required by the PLRA. (Def.’s Mot. Summ. J. at

6-7.) Blanscet counters that he should be excused from exhausting administrative remedies

because defendants have not shown that the grievance process was available to him. As

explained below, the court agrees that Blanscet did not properly exhaust his administrative

remedies. Consequently, the court declines to address the parties’ arguments about the merits of

those claims.

A. § 1983 Claims and PLRA Exhaustion

The PLRA mandates that an AIC exhaust “such administrative remedies as are available”

before bringing an action “with respect to prison conditions under section 1983 of this title, or

any other Federal law.” 42 U.S.C. § 1997e(a). “Requiring exhaustion provides prison officials a

‘fair opportunity to correct their own errors’ and creates an administrative record for grievances

that eventually become the subject of federal court complaints.” Reyes v. Smith, 810 F.3d 654,

657 (9th Cir. 2016) (quoting Woodford v. Ngo, 548 U.S. 81, 94 (2006)). The PLRA requires

“proper” exhaustion, which means that an AIC “must complete the administrative review process

in accordance with the applicable procedural rules, including deadlines, as a precondition to

bringing the suit in federal court.” Woodford, 548 U.S. at 88. “[T]he obligation to exhaust

claims should be dismissed for failure to exhaust. (Def.’s Mot. Summ. J. at 7.) Blanscet

countered that the PLRA does not apply to his state law claims because it mandates exhaustion

only for actions concerning “prison conditions under section 1983 of this title, or any other

Federal law.” (Pl. Resp. at 5.) Defendants did not respond to that argument in their reply brief.

(See generally, Defs.’ Reply, ECF No. 59.) The court treats defendants’ failure to respond to that

argument as a concession, and therefore, considers their exhaustion argument only as applied to

Blanscet’s § 1983 claims (Claim 3 and Claim 4).

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‘available’ remedies persists as long as some remedy remains available.” Brown v. Valoff, 422

F.3d 926, 935 (9th Cir. 2005) (emphasis in original).

In Williams v. Paramo, 775 F.3d 1182 (9th Cir. 2015), the Ninth Circuit articulated the

procedure for determining whether an AIC exhausted available administrative remedies. First, a

defendant must “prove that there was an available administrative remedy and that the prisoner

did not exhaust that remedy.” Id. at 1191 (explaining that a summary judgment motion is the

“proper procedural vehicle for determining whether administrative remedies have been

exhausted”). Once the defendant has made such a showing, the burden shifts to the plaintiff,

“who must show that there is something particular in his case that made the existing and

generally available administrative remedies effectively unavailable to him by ‘showing that the

local remedies were ineffective, unobtainable, unduly prolonged, inadequate, or obviously

futile.’” Id. (quoting Hiloa v. Estate of Marcos, 103 F.3d 767 (9th Cir. 1996)). Although an AIC

carries the burden of proving that administrative remedies were effectively unavailable to him,

the “ultimate burden of proof . . . remains with the defendant.” Id. (citing Albino v. Baca, 747

F.3d 1162, 1172 (9th Cir. 2014)).

To satisfy their initial burden under Williams, defendants submitted the declaration of

Brent Erikson, who has been employed by ODOC as the Discrimination Complaint and ADA

Coordinator at OSP since March 1, 2014. (Erikson Decl. ¶ 1, ECF No. 44-2.) In that capacity,

Erikson serves as a custodian of records for ODOC, processes and investigates Discrimination

Complaints, and assists the Grievance Coordinator in processing grievances filed by AICs.

Erikson explains that OSP’s grievances are processed according to regulations set out in

the Oregon Administrative Rules (OAR), Chapter 291, Division 109. (Id. ¶¶ 2, 5.) Under those

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regulations, AICs are encouraged to communicate with line staff verbally or in writing as their

primary means of resolving disputes. (Id. ¶ 6 (citing OAR §§ 291-109-0100).) If that

communication does not resolve the dispute, AICs are advised that they may file a grievance if it

complies with the administrative rules and there is no other review process available. (Id. ¶ 6

(citing OAR § 291-109-0210(4)(d)).) Information about the grievance process is provided in the

orientation packet that all AICs receive when they first arrive at an ODOC facility. Instructions

are also contained in the AIC handbook and on the grievance forms, which are available on all

housing units. (Id. ¶ 6, Ex. 1 (grievance form with instructions).)

An AIC may file a single grievance concerning any incident or issue regarding

institutional life that directly and personally affects that AIC, including “a) the misapplication of

department policies, rules, or other directives; b) unprofessional actions of employees,

volunteers, or contractors; c) inadequate medical care or mental health treatment; d) sexual

abuse or sexual harassment; and e) excessive use of force by department employees.” (Id. ¶ 8

(citing OAR § 291-109-0205(1) (emphasis added)).) To obtain review, the AIC’s grievance

generally must be submitted within fourteen calendar days of the date of the incident giving rise

to the grievance, unless the AIC can satisfactorily demonstrate why the grievance could not be

timely filed. (Id.)

Here, it is undisputed that Blanscet did not file any grievances relating to his § 1983

claims for inadequate medical care.5 Blanscet filed three grievances during his time in ODOC

custody: (1) an October 2009 grievance requesting anxiety medication; (2) a November 2018

5 For that reason, the court need not recount defendants’ evidence regarding the grievance

appeal process.

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grievance complaining that he had not been prescribed a specific anti-anxiety medication; and

(3) a January 2022 grievance requesting a podiatrist-approved shoe lift. (Joint Statement ¶ 4.)

None of those grievances pertain to his claims that Paulson “failed to take any meaningful steps

to diagnose [his] injuries for almost a year, ordered [him] to undergo physical therapy without

identifying the cause of [his] injuries, and failed to prescribe effective pain medications.”

(Compl. ¶¶ 34, 42.)

Nevertheless, Blanscet argues that defendants have failed to satisfy their initial burden

under Williams because Erikson’s declaration does not “provide the minimum testimony

necessary to establish” the availability of an administrative remedy. (Pl.’s Resp. at 7-8.) His

arguments are unavailing. For instance, although Blanscet contends that Erikson lacks “practical,

personal knowledge of how an AIC can obtain and submit a grievance form,” he offers no

evidence to contradict Erikson’s testimony that he “assist[s] the Grievance Coordinator in the

processing of grievances,” and therefore draws from a “combination of personal knowledge and

[] reliance on ODOC records” to explain the grievance process. (Erikson ¶¶ 1-2.) Likewise,

Blanscet’s argument that Erikson’s declaration does “little more than quote the relevant Oregon

Administrative Rules” is not well-taken. Courts within this district routinely accept declarations

accompanied by “copies of the ODOC rules governing grievances, and the written explanation of

the grievance procedures given inmates on admission to ODOC custody” as sufficient evidence

that grievance procedures are available to inmates. See, e.g., Preuitt v. Oregon Dept. of Corr.,

Case No. 3:16-cv-00835-PK, 2017 WL 3498857, at *2 (D. Or. July 21, 2017); Warren v. Oregon

Dept. of Corr., Case No. 3:19-cv-00632-YY, 2021 WL 1723652, at *2 (D. Or. Apr. 30, 2021).

Blanscet does not meaningfully distinguish Erikson’s declaration from such evidence.

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Accordingly, the court finds that defendants have carried their initial burden of showing that

grievance procedures are generally available to AICs at OSP and that Blanscet did not properly

exhaust grievances relating to his federal claims.

Blanscet contends that, despite the general availability of an administrative remedy, he

should be excused from the PLRA’s exhaustion requirement because the grievance process was

effectively unavailable to him under the circumstances. (Pl. Br. at 8-9.). To require exhaustion,

an administrative remedy must be available to an AIC “as a practical matter; it must be capable

of use; at hand.” Albino, 747 F.3d at 1171 (quoting Brown, 422 F.3d at 927). The Supreme Court

has recognized “three kinds of circumstances in which an administrative remedy, although

officially on the books, is not capable of use to obtain relief”: (1) when the “administrative

procedure . . . operates as a simple dead end—with officers unable or consistently unwilling to

provide any relief to aggrieved inmates”; (2) when the “administrative scheme might be so

opaque that it becomes incapable of use”; and (2) when “prison administrators thwart inmates

from taking advantage of a grievance process through machination, misrepresentation, or

intimidation.” Ross v. Blake, 578 U.S. 632, 644 (2016).

Blanscet advances three arguments to support his position that the grievance process was

effectively unavailable to him between May 2018 and April 2019. First, he notes that Erikson’s

declaration does not specify the location of the grievance forms within the housing units and

implies that his mobility issues rendered him unable to access those forms. However, Blanscet

offers no evidence, such as a personal declaration, to establish that he could not access the

grievance form within the housing unit. Instead, the record reflects that he successfully filed a

grievance requesting a specific anxiety medication in November 2018. (Erikson Decl. ¶ 15, Ex. 3

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at 4; Joint Statement ¶ 4.) Thus, he has not raised a genuine dispute of material fact regarding the

accessibility of the grievance forms within the housing unit during the relevant period.

Next, Blanscet argues that defendants have not established the availability of the

grievance process during his hospitalization from April 3 to April 12, 2019, a period soon after

his March 18 prostate cancer diagnosis. (Pl. Resp. at 8.) The court notes, however, that despite

the apparent unavailability of grievance forms during that nine-day period, Blanscet was returned

to OSP custody in stable condition within the fourteen-day period generally provided for filing a

grievance. (Reilly Decl. ¶ 6, Ex. 5 at 1-5; Erikson Decl. ¶ 8 (citing OAR 291-109-0205(2)).)

Under those circumstances, he likely also could have “satisfactorily demonstrate[d]” why he

could not file a timely grievance related to his diagnosis or general medical care. (Id.) Because

Blanscet submits no evidence showing that he attempted to file a grievance during or following

his hospitalization, he has not raised a genuine dispute of material fact regarding the effective

availability of the grievance process during that period. Albino, 747 F.3d at 1171 (to overcome

defendant’s initial burden, plaintiff must “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”).

Finally, Blanscet contends that he was “thwarted” from using the grievance system

because he feared retaliation from Paulson following an appointment on December 17, 2018.

(Pl.’s Resp. at 9.) At that appointment, Blanscet expressed frustration that Paulson was not

responding to his concerns and stated that he “might have to retain a lawyer” to ensure that his

needs were met. (Reilly Decl. ¶ 2, Ex. 1 at 6.) Paulson responded by advising Blanscet that

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retaining legal counsel could be considered “a form of extortion” and “shut down the

appointment” with “no further communication.” (Id.)6

“[T]he threat of retaliation for reporting an incident can render the prison grievance

process effectively unavailable and thereby excuse a prisoner’s failure to exhaust administrative

remedies.” McBride v. Lopez, 807 F.3d 982, 987 (9th Cir. 2015). “In order for a fear of

retaliation to excuse the PLRA’s exhaustion requirement, the prisoner must show that (1) ‘he

actually believed prison officials would retaliate against him if he filed a grievance’; and (2) ‘a

reasonable prisoner of ordinary firmness would have believed that the prison official’s action

communicated a threat not to use the prison’s grievance procedure.’” Rodriguez v. Cnty. of Los

Angeles, 891 F.3d 776, 792 (9th Cir. 2018) (quoting McBride, 807 F.3d at 987).

Construing the facts in the light most favorable to Blanscet, his allegation that he

perceived Paulson’s discussion of extortion to be a threat not to use the prison grievance system

is sufficient to satisfy the subjective prong of the retaliation test. Beginning in May 2018,

Blanscet communicated on at least seven occasions—in kytes and at medical appointments—that

he was experiencing persistent, often worsening, pain in his hip. (See Reilly Decl. ¶¶ 5, Ex. 4 at

1-5.) Paulson responded to those complaints by ordering an x-ray and cortisone shot in June

2018 and physical therapy in November and December 2018. (Id.) In a kyte dated December 16,

2018, Blanscet reported that he was experiencing regression and feared “permanent injury” from

6 Paulson’s progress note from that appointment similarly documents “subtle legal threats

– counselled re: extortion.” (Reilly Decl. ¶ 4, Ex. 3.). When questioned about that note during his

deposition, Paulson testified: “I’ll write that [note] to document that I had counseled the person

about . . . not threatening me . . . as part of the medical visit.” (Id. ¶ 3, Ex. 2 at 13.)

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PT, stated that he needed to see Paulson “ASAP due to UNBEARABLE PAIN,” and expressed

frustration that Paulson’s lack of care was “starting to look like deliberate indifference to [his]

physical wellbeing.” (Id. at 5.) Given those communications, Blanscet could have subjectively

believed that Paulson’s discussion of extortion constituted a threat not to pursue legal action or

an administrative remedy regarding his medical care.

Blanscet has not satisfied the objective prong of the retaliation test, however. Although

the alleged threat of retaliation “need not explicitly reference the grievance system in order to

deter a reasonable inmate from filing a grievance, there must be some basis in the record from

which the district court could determine that a reasonable prisoner of ordinary firmness would

have understood the prison official’s actions to threaten retaliation if the prisoner chose to use

the grievance system.” McBride, 807 F.3d at 988 (internal citation omitted). Additionally, the

Ninth Circuit has recognized that the threat must be “specific” and of “sufficient severity to deter

a reasonable prisoner from filing a grievance.” Sealey v. Busichio, 696 Fed. Appx. 779, 781 (9th

Cir. 2017) (“Although circumstantial evidence can be sufficient to overcome summary judgment

in retaliation case, such evidence must be specific.”); Rodriguez, 891 F.3d at 792 (both prongs

satisfied for inmate who declared that the day he turned in a complaint, a sergeant came to his

cell, mentioned another inmate who had been badly beaten, stated “that’s how rats are treated

when they lie about my deputies,” and said “for your own good, I'm going to forget you turned in

this complaint. Keep your mouth shut.”).

Blanscet contends that, when Paulson stated that taking legal action could be considered

extortion, he reasonably “thought there was going to be some kind of retaliation where they were

going to ship [him] out” to another facility if he filed a grievance or acquired legal assistance to

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advocate for his medical care. (Reilly Decl. ¶ 2, Ex. 1 at 7.) However, he offers no evidence that

Paulson made any specific threat of retaliation to that effect. The Ninth Circuit has explained

that, without such evidence, there “is no reason to allow inmates to avoid filing requirements on

the basis of hostile interactions with [prison personnel] when the interaction has no apparent

relation to the use of the grievances system.” McBride, 807 F.3d at 988. Here, although the

appointment grew hostile and the mention of “extortion” was serious,7 there is no evidence that

Paulson issued a specific threat against Blanscet nor any argument connecting Paulson’s

extortion comment to Blanscet’s use of the grievance system. Moreover, following that

interaction, Blanscet continued to advocate for his medical care in kytes directed specifically to

Paulson, and there is no evidence that he was threatened or punished for that advocacy. See

Osborne v. Peters, Case No. 2:20-cv-02260-MC, 2022 WL 2904395, at *4 (noting “no evidence

that [prison] personnel threatened or punished plaintiff when he sought help through kytes” and

other informal communications with prison staff). Therefore, even viewing the hostile interaction

with Paulson in the light most favorable to him, Blanscet has not raised a genuine dispute of

material fact that “a reasonable prisoner would have understood [Paulson’s] statement to mean

that the prisoner would be retaliated against for filing a grievance.” See Sealey, 696 Fed. Appx.

at 781 (affirming court’s conclusion that “medical staff’s threat that if Sealey ‘caused any trouble

about the medical care, [he] would be transferred to another institution where really bad inmates

were and [he] would not receive any medical care” was insufficient to satisfy objective prong);

7 In Oregon, the crime of extortion is a Class B felony and requires, among other things,

the threat of violence or criminal activity to compel someone to provide a service to them. O.R.S.

§ 164.075. That is not what happened here. Blanscet expressed his belief that he may need a

lawyer to advocate on his behalf to have Paulson—likely the only medical care provider

available to him—take his medical needs seriously.

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McBride, 807 F.3d at 988 (in action alleging excessive force, inmate’s allegations that guards

threatened him after beating him by saying he was “lucky” because his injuries “could have been

much worse” fails to meet the objective prong because an inmate would not have reasonably

understood from the statement that the guards intended to retaliate if he filed an appeal).

Accordingly, Blanscet has not demonstrated that he should be excused from exhausting his

administrative remedies due to fear of retaliation.

In summary, because Blanscet did not file grievances relating to his § 1983 claims and

has not established that the grievance process was effectively unavailable to him under the

circumstances, there is no genuine dispute of material fact that he failed to properly exhaust

available administrative remedies as required by the PLRA. Accordingly, the court grants

summary judgment for defendants and dismisses Claims 3 and 4 without prejudice. See Wyatt v.

Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003) (“If the district court concludes that the prisoner

has not exhausted nonjudicial remedies, the proper remedy is dismissal of the claim without

prejudice.”), overruled on other grounds by Albino, 747 F.3d at 1166.

B. State Law Claims and Supplemental Jurisdiction

A district court may decline to exercise supplemental jurisdiction over a state law claim

where “the claim raises a novel or complex issue of State law” or the court has “dismissed all

claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c). After dismissing all federal

claims, the court’s decision whether to exercise supplemental jurisdiction over a remaining state

law claim is “purely discretionary.” Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639

(2009). The court’s decision is informed by values of “economy, convenience, fairness, and

comity.” Acri v. Varion Assocs., Inc., 114 F.3d 999, 1001 (9th Cir. 1997) (en banc). “[I]n the

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usual case in which all federal-law claims are eliminated before trial, the balance of factors...

will point toward declining to exercise jurisdiction over the remaining state-law claims.”

Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343 350 n.7 (1988).

After careful consideration, the court declines to exercise supplemental jurisdiction over

Blanscet’s remaining state law negligence claims—Claims 1 and 2. All of Blanscet’s federal

claims are dismissed, triggering the court’s discretion under 28 U.S.C. § 1367(c)(3). Moreover,

the unique framework of Oregon negligence law makes this case better suited for state court and

inconvenience to the parties is minimal because this case is at the summary judgment stage and

no trial date has been set. See Lima v. U.S. Dep’t of Educ., 944 F.3d 1172, 1178 (9th Cir. 2019)

(finding no abuse of discretion where district court declined to exercise supplemental jurisdiction

after granting summary judgment on all federal claims). The balance of factors therefore favors

declining to exercise supplemental jurisdiction in this case.

CONCLUSION

For the reasons stated above, defendants’ motion for summary judgment (ECF No. 44) is

GRANTED as to Blanscet’s federal claims. The court declines to exercise supplemental

Jurisdiction over Blanscet’s remaining state law negligence claims.

IT IS SO ORDERED.

DATED: January 31, 2023.

tthe,

United States Magistrate Judge

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