Johnson v. Garrett

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

SHAUN L. JOHNSON, a/k/a Shon La’Roy Case No. 3:20-cv-01935-JR

Johnson,

ORDER ADOPTING F&R

Plaintiff,

v.

PAT GARRETT; DIANA JIMENEZ;

PAUL S.F.; SERGEANT MONSON;

SERGEANT LOKE; CORRECTIONS

OFFICER STARR; and CORRECTIONS

OFFICER A. NOLI,

Defendants.

Shaun L. Johnson, SID No. 7235453, Snake River Correctional Institution, 777 Stanton Blvd.,

Ontario, OR 97914-8335. Pro se.

John Mansfield, Office of the Washington County Counsel, 155 N. First Avenue, MS24, Suite

340, Hillsboro, OR 97124. Attorney for Defendants Pat Garrett, Sergeant Monson, Sergeant

Loke, Corrections Officer Starr, and Corrections Officer A. Noli.

Vicki M. Smith and Helaina L. Chinn, Chinn Smith Winters LLP, 4248 Galewood Street, Lake

Oswego, OR 97035. Attorneys for Defendants Diana Jimenez and Paul S.F.

IMMERGUT, District Judge.

Plaintiff, proceeding pro se, brings this action under 42 U.S.C. § 1983 for alleged

violations of his First, Eighth, and Fourteenth Amendment rights while in pretrial custody at the

Washington County Jail. Amended Complaint, ECF 35. Plaintiff, who is Muslim, alleges that

Defendants failed to provide a halal diet, failed to adjust the meal schedule to allow him to

observe Ramadan, misled him into consuming pork, and retaliated against him for filing

grievances. Following a discovery dispute, Judge Russo granted Defendants’ motion to deem

admitted Defendants’ requests for admission. Order, ECF 90. Defendants Diana Jimenez and

Paul S.F. then brought the instant Motion for Summary Judgment (“Mot.”), ECF 78.1 Defendants

argue that Plaintiff’s claim against them fails because he “admitt[ed] all key elements of his

case.” Id. at 5.

Magistrate Judge Russo recommends that this Court grant in part and deny in part

Defendants’ motion. Findings and Recommendation (“F&R”), ECF 116 at 1. Both sides filed

objections, ECF 118, 119, and Plaintiff filed a response, ECF 125. This Court has reviewed de

novo the portions of the F&R to which the parties objected. For the following reasons, the Court

adopts Judge Russo’s F&R, and addresses the parties’ objections.

LEGAL STANDARDS

Under the Federal Magistrates Act (“Act”), as amended, the court may “accept, reject, or

modify, in whole or in part, the findings or recommendations made by the magistrate judge.”

28 U.S.C. § 636(b)(1)(C). If a party objects to a magistrate judge’s F&R, “the court shall make a

de novo determination of those portions of the report or specified proposed findings or

recommendations to which objection is made.” Id. But the court is not required to review, de

novo or under any other standard, the factual or legal conclusions of the F&R that are not

objected to. See Thomas v. Arn, 474 U.S. 140, 149–50 (1985); United States v. Reyna-Tapia, 328

F.3d 1114, 1121 (9th Cir. 2003) (en banc). Nevertheless, the Act “does not preclude further

1 Defendants Garrett, Loke, Monson, Starr and Noli did not file dispositive motions.

review by the district judge, sua sponte” whether de novo or under another standard. Thomas,

474 U.S. at 154.

DISCUSSION

This Court begins by elaborating upon the F&R’s assessment of the effect of Plaintiff’s

deemed admissions, then turns to the admissibility of Plaintiff’s verified complaint, and then

addresses Defendants’ affirmative defense of failure to exhaust administrative remedies. All

other portions of the F&R are adopted in full.

A. Effect of Plaintiff’s Admissions

Defendants argue in their motion that Plaintiff’s claim fails because he admitted (1) that

he failed to exhaust administrative remedies; (2) that Defendant S.F. is entitled to qualified

immunity; (3) that Defendants did not have the intent to deprive him of his rights; (4) that he was

not injured; (5) that he suffered no lost wages; (6) that he caused his own injuries, if any; (7) that

Defendant S.F. had no legal duty to provide food services to him; (8) that Defendant S.F. had no

control over his meals; and (9) that his meals were nutritionally adequate. Mot., ECF 78 at 5. As

the F&R notes, “[D]efendants provided no legal analysis in support of their motion beyond

stating that the deemed admissions establish numerous bases upon which the Court may grant

summary judgment.” ECF 116 at 6.

Judge Russo found that “several of the requests for admissions are beyond the proper

scope of normal discovery” because they asked Plaintiff to admit pure legal conclusions and

opine on Defendants’ motives, as well as implicating central facts in dispute. Id. at 7–8. This

Court agrees. But more importantly, the admission fails to provide facts necessary for this Court

to find as a matter of law that Plaintiff has indeed failed to exhaust his administrative remedies.

While not discussed in the F&R, this Court concludes that Defendants’ request that Plaintiff

concede his failure to exhaust is also beyond the proper scope of discovery.

First, this request improperly asks Plaintiff to admit a legal conclusion. The request

stated: “Admit you did not exhaust your administrative remedies prior to filing this lawsuit.”

Requests for Production, ECF 49-1 at 3. In essence, this request asks Plaintiff to concede

“exhaustion,” a term of art defined by the Prison Litigation Reform Act (“PLRA”) and by

Supreme Court and Ninth Circuit case law. See Jackson v. Fong, 870 F.3d 928, 932 (9th Cir.

2017) (“Interpretation of the PLRA is a question of law.”); Woodford v. Ngo, 548 U.S. 81,

(2006) (describing “exhausted” as a “term of art” in the PLRA). This request “do[es] not

reference of the facts of this case.” Holston v. DeBanca, No. CIV S-09-2954, 2012 WL 843917,

at *13 (E.D. Cal. Mar. 12, 2012). Defendants did not ask Plaintiff to concede any underlying

facts, like that he failed to timely file a particular grievance or to appeal it.

Second, the request is unreasonably vague. Although the request asked Plaintiff to admit

that he did not exhaust his “administrative remedies,” it did not define that term, such as by

referring to a specific jail grievance system. Requests for Production, ECF 49-1 at 3. Under the

PLRA, administrative remedies need only be exhausted if they are “available.” Ross v. Blake,

578 U.S. 632, 642 (2016). Even taking this request as admitted, it is unclear what administrative

remedies were available to Plaintiff or whether he failed to exhaust his administrative remedies

because they were unavailable.

Defendants argue that courts lack discretion to review admissions once admitted.

Defendants’ Objections, ECF 118 at 5–6. While it could be an abuse of discretion for a court to

sua sponte withdraw admissions without a proper motion, Layton v. Int’l Ass’n of Machinists,

285 F. App’x 340, 341 (9th Cir. 2008), the F&R did not withdraw the admissions. Instead, the

F&R clarified what Plaintiff was deemed to have admitted. A party cannot be deemed to have

admitted legal conclusions and other improper requests. See Denson v. UFI Transp. LLC, No.

21-CV-00722, 2022 WL 2162944, at *5 n.1 (C.D. Cal. Feb. 25, 2022). The F&R properly

analyzed whether the requests contained facts, or merely legal conclusions that are beyond the

scope of admissions.

B. Plaintiff’s Verified Complaint

The F&R considered various allegations in Plaintiff’s Amended Complaint as evidence

that administrative remedies were unavailable to him and that Defendants violated Plaintiff’s

First Amendment rights. F&R, ECF 116 at 5, 9. Defendants argue that it was improper to

consider the Amended Complaint as evidence because it is not a verified complaint. Defendants’

Objections, ECF 118 at 6.

Federal law provides that, for a complaint to be verified, it must be “in substantially the

following form”:

I declare (or certify, verify, or state) under penalty of perjury that

the foregoing is true and correct.

28 U.S.C. § 1746(2). Plaintiff’s complaint lacks the phrase “under penalty of perjury.” It states:

Pursuant to 28 U.S.C., Sec., 1746(2), I hereby verify and declare

that the foregoing is true and correct.

Amended Complaint, ECF 35 at 30. Defendants argue that an acknowledgment of the penalty of

perjury is “mandatory.” Defendants’ Objections, ECF 118 at 6–8.

Considering Plaintiff’s pro se status, the fact that his language “substantially” matches

that in the statute, and his explicit reference to 28 U.S.C. § 1746, this Court concludes that Judge

Russo properly found that Plaintiff’s Amended Complaint was verified. See Soto v. Castlerock

Farming & Transp., Inc., No. 9-CV-00701, 2011 WL 2680839, at *4 n.6 (E.D. Cal. July 8, 2011)

(finding that declaration was verified despite its omission of the language “under penalty of

perjury”). Plaintiff’s words “expressed the fact that he . . . [wa]s impressed with the solemnity

and importance of his . . . words and of the promise to be truthful, in moral, religious, or legal

terms.” United States v. Bueno-Vargas, 383 F.3d 1104, 1110 (9th Cir. 2004). The F&R properly

considered the allegations therein for the purposes of this motion.

C. Exhaustion

The F&R ultimately recommends that summary judgment based on Plaintiff’s alleged

failure to exhaust administrative remedies should be denied. F&R, ECF 116 at 6. This Court

agrees. As discussed above, the F&R properly considered Plaintiff’s verified complaint, in

determining whether Plaintiff exhausted his administrative remedies. But whether Plaintiff

presented sufficient evidence to carry his burden regarding exhaustion is ultimately beside the

point. Exhaustion is an affirmative defense, and Defendants failed to carry their initial “burden of

showing that an administrative process was available to [Plaintiff] and that [Plaintiff] failed to

exhaust it.” Fordley v. Lizarraga, 18 F.4th 344, 350–51 (9th Cir. 2021). Defendants did not

provide any evidence in support of their summary judgment motion, and thus have not

“establish[ed] the method by which a person in custody at the Washington County Jail must

complete the administrative review process in accordance with applicable procedural rules” to

grieve a dietary issue. F&R, ECF 116 at 5. Further, because this Court does not consider

Plaintiff’s improper admission, there is no evidence Plaintiff failed to exhaust any administrative

remedies. Thus, the burden never shifted to Plaintiff to show that any “generally available

administrative remedies [were] effectively unavailable to him.” Fordley, 18 F.4th at 351.

Summary judgment to Defendants is not warranted on their failure-to-exhaust affirmative

defense.

CONCLUSION

Judge Russo’s F&R, ECF 116, is ADOPTED as set forth above. Defendants’ Motion for

Summary Judgment, ECF 78, is GRANTED as to Plaintiff’s claim for cruel and unusual

punishment against Defendants Jimenez and S.F. and DENIED as to Plaintiff’s religious freedom

claim against Jimenez and S.F.

IT IS SO ORDERED.

DATED this 11th day of December, 2024.

/s/ Karin J. Immergut

Karin J. Immergut

United States District Judge