# Monical v. Nofziger

> District Court, D. Oregon · January 2, 2025

URL: https://www.frixlaw.com/law-library/cases/10773471

## Case

- **Court:** District Court, D. Oregon
- **Decided:** January 2, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10773471

## How later opinions describe it (automated extraction)

- explaining that futility may support denial of a motion to amend if it is clear that the pleading, as amended, is subject to dismissal and cannot be cured by amendment

## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
EUGENE DIVISION

BRADLEY W. MONICAL,

Plaintiff,
Case No. 6:18-cv-02214-YY
v.
OPINION AND ORDER
J. ROCHESTER; JUDY GILMORE; and
TAYLOR,

Defendants.

YOU, Magistrate Judge.
Pro se plaintiff Bradley Monical, an adult in custody (“AIC”) at the Oregon State
Penitentiary, brings this civil rights action under 42 U.S.C. § 1983. Plaintiff’s initial complaint
asserted four claims for alleged due process violations, an equal protection claim, an Eighth
Amendment conditions of confinement claim, and a First Amendment claim alleging a violation
of his right to access the courts and retaliation. See Compl. 9–17, ECF 2.
The court granted plaintiff’s Application to Proceed In Forma Pauperis, but dismissed
with leave to amend plaintiff’s initial complaint at the so-called screening stage for failure to
state a claim. See Order to Dismiss (Oct. 29, 2016) 5–6, 14, ECF 7 (“A district court must
dismiss an action initiated by a prisoner seeking redress from a governmental entity or officer or
employee, if the Court determines that the action (i) is frivolous or malicious; (ii) fails to state a
claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is
immune from such relief.”) (citing 28 U.S.C. §§ 1915(e)(2) & 1915A(b)).
Plaintiff filed an Amended Complaint shortly thereafter, in which he asserted the same
claims and supplemented his factual allegations. See ECF 13. The court found that one of

plaintiff’s due process claims was sufficiently alleged and allowed it to proceed. Order (Jan. 13,
2020) 2, ECF 15. The court, though, dismissed all of plaintiff’s other claims. Id. The surviving
due process claim eventually proceeded to summary judgment, and the court granted summary
judgment in defendants’ favor. Opinion and Order (Sept. 30, 2021) 15, ECF 75. Plaintiff
appealed those rulings, and the Ninth Circuit affirmed in all aspects, except it remanded for
further proceedings plaintiff’s conditions of confinement claim and his First Amendment
retaliation claims that were initially dismissed at the screening stage. Memorandum (March 21,
2023) 5, ECF 79.
Plaintiff’s now-remanded claims are asserted against three former employees of Snake
River Correctional Institution (“SRCI”)—Assistant Superintendent Judy Gilmore, Grievance

Coordinator James Taylor, and Law Library Coordinator Janelle Rochester (collectively,
“remaining defendants”)—and are based on events that occurred while plaintiff was incarcerated
at SRCI between April of 2017 and January of 2018. See Mot. Summ. J. 1, ECF 171; First Am.
Compl. 12, ECF 13. Plaintiff’s condition of confinement claim asserts generally that defendants
Taylor and Gilmore subjected him to unconstitutional cruel and unusual punishment by
“refus[ing] to provide anything but shower shoes” for the period of eight months that he was
housed in the Intensive Management Unit of SRCI. First Am. Comp. 4, 25–27, ECF 13.
Plaintiff’s First Amendment retaliation claim against defendant Rochester asserts that, after he
filed a grievance regarding access to legal paper, she retaliated against him by requesting that
other officers at SRCI perform a search or “toss” of plaintiff’s cell. Id. at 28–31.
Currently pending is the remaining defendants’ motion for summary judgment, which
primary asserts that plaintiff’s claims fail as a matter of law because he failed to exhaust the

administrative remedies available at SRCI before bringing this suit, as required by the Prison
Litigation Reform Act (“PLRA”). See Mot. Summ. J. 2, ECF 171.1
I. Summary Judgment Standard
Under Federal Rule of Civil Procedure 56(a), “[t]he court shall grant 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.” 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).
Once the moving party does so, the nonmoving party must “go beyond the pleadings” and

“designate ‘specific facts showing that there is a genuine issue for trial.’ ” Id. at 324 (citing FED.
R. CIV. P. 56(e)).
The court “does not weigh the evidence or determine the truth of the matter, but only
determines whether there is a genuine issue for trial.” Balint v. Carson City, Nev., 180 F.3d 1047,
1054 (9th Cir. 1999). “Reasonable doubts as to the existence of material factual issue are

1 Upon the case’s return to this court, plaintiff filed a large number of motions related to
discovery and other pre-trial procedural matters. See ECF 93, 97, 102, 113, 122, 130, 136, 142,
150, 161. Several of these motions are still pending in this case. Also, after the remaining
defendants filed the currently pending motion for summary judgment, plaintiff filed a motion for
leave to amend the complaint, which seeks to specifically name previously unidentified “John
Doe” defendants included in plaintiff’s First Amended Complaint. The resolution of these
pending motions is discussed below.
resolved against the moving parties and inferences are drawn in the light most favorable to the
non-moving party.” Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000).
II. PLRA Exhaustion
Under the PLRA, “[n]o action shall be brought with respect to prison conditions under

section 1983 . . . 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). Exhaustion under the PLRA is mandatory. McKinney v. Carey, 311 F.3d 1198, 1199
(9th Cir. 2002) (citing Booth v. Churner, 532 U.S. 731, 741 (2001)). The purposes of the
exhaustion requirement are two-fold: to protect administrative agency authority, by providing
agencies the opportunity to correct their mistakes before being brought into federal court, and by
encouraging adherence to agency procedures; and to promote efficiency because resolution by an
agency is typically faster and more economical than litigation in federal court. Woodford v. Ngo,
548 U.S. 81, 89 (2006).
“Failure to exhaust under the PLRA is ‘an affirmative defense the defendant must plead

and prove.’ ” Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (quoting Jones v. Bock, 549
U.S. 199, 204 (2007)). The court employs a burden-shifting framework to analyze administrative
exhaustion under the PLRA. First, the defendant must “prove that there was an available
administrative remedy and that the prisoner did not exhaust that available remedy.” Williams v.
Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015). 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 can include “showing that the
local remedies were ineffective, unobtainable, unduly prolonged, inadequate, or obviously
futile.” Id. An inmate need only exhaust those remedies that are available “as a practical matter,”
meaning that the remedy must be “capable of use; at hand.” Brown, 422 F.3d at 937.
Because exhaustion of remedies is an affirmative defense, the defendant has the burden
of raising and proving that an incarcerated plaintiff failed to satisfy the PLRA’s exhaustion

requirement. Jones, 549 U.S. at 216. Although the burden of proof remains with the defendant,
the defendant is entitled to summary judgment if undisputed evidence viewed in the light most
favorable to the prisoner shows a failure to exhaust. Albino, 747 F.3d at 1166, 1172.
The remaining defendants have satisfied their initial burden of showing that an
administrative remedy was available to plaintiff and that he failed to exhaust his claims. The
Oregon Department of Corrections (“ODOC”) grievance process is set forth in the Oregon
Administrative Rules. See OAR, Ch. 291, Div. 109. Under the version of the rules in place at the
time of plaintiff’s incarceration at SRCI, the grievance process consisted of three steps for
handling AIC complaints: filing a grievance within 30 days of the date of the incident giving rise
to the grievance, and two rounds of appeal. See Taylor Decl., Ex. 2 at 5–8, ECF 172.2 Plaintiff

filed two grievances related to his conditions of confinement claim regarding shoes. In Grievance
SRCI 2017-07-043, received on July 11, 2017, plaintiff asked for “a pair of shoes so [he] can
exercise[.]” Taylor Dec., Ex. 5 at 3, ECF 172; see also Monical Decl., Ex. 1 at 1, ECF 194. The
grievance was “accepted and sent for a response” on the same day. Taylor Decl., Ex. 5 at 2, ECF
172. Plaintiff and Lieutenant Jantz both signed a statement that this grievance was “considered
satisfied and requires no further action. Shoes Issued.” Id. at 1. Plaintiff did not appeal this
grievance. Taylor Decl. ¶ 25, ECF 172. In Grievance SRCI 2017-08-087, received on August 22,

2 The current version of ODOC’s rules regarding the grievance process is largely the same,
though the timeframe for inmates to initiate the grievance process is now shorter (14 days).
See O.A.R. 291-109-0205.
2017, plaintiff stated that he was “not issued a pair of appropriate tennis shoes to perform
exercise in.” Taylor Decl., Ex. 6 at 3, ECF 172. Again the grievance was “accepted and sent for a
response” on the same day. Id. at 2. In responding to plaintiff, Taylor wrote that he “checked
with the Special Housing shift supervisor and they will ensure you have been issued appropriate

footwear for exercising. Thank you for bringing this to our attention.” Id. at 1. Plaintiff did not
appeal this grievance.
In his response to the motion for summary judgment, plaintiff points out that he “notified
[Gilmore] and [Taylor] many times with regards to the request for shoes to exercise in[.]” And it
is true that there are several “kytes” or other requests in the record about plaintiff’s footwear. See
Monical Decl., Exs. 1–11, ECF 194. But there is no evidence that plaintiff ever pursued a
grievance regarding his footwear to even the first level of appeal, much less that he properly and
fully exhausted the ODOC administrative process on the issue. Nor does plaintiff advance any
argument as to why his failure to exhaust these grievances should be excused. Resp. Mot. Summ.
J. 18–23, ECF 192. The remaining defendants are therefore entitled to summary judgment on

plaintiff’s conditions of confinement claim.
As for plaintiff’s First Amendment claim alleging that Rochester ordered plaintiff’s cell
to be searched in retaliation for plaintiff’s grievance regarding pleading paper, there is no
evidence in the record that plaintiff ever filed a grievance on the cell search. There are numerous
communications in the record starting roughly on September 15, 2017, and continuing through
October of 2017, whereby plaintiff requested additional pleading paper from the law library, and
to which defendant Rochester responded by, generally speaking, explaining that plaintiff had
already been issued the amount of pleading paper allowed by ODOC rules and furthermore, had
not substantiated his need for more pages. See, e.g., Monical Decl., Exs. 12–29, 31, 33, ECF 194.
Plaintiff filed a grievance regarding his request for pleading paper on September 26, 2017; that
grievance was returned several times for various procedural issues and corrections. See Taylor
Decl., Ex. 7 at 2–11, ECF 172. Plaintiff’s cell was searched on October 10, 2107, and during the
search officers discovered that plaintiff “ha[d] a supply of blank pleading paper.” Taylor Decl.,

Ex. 7 at 5, ECF 172; Monical Decl., Ex. 21, ECF 194. Plaintiff submitted another grievance on
October 31, 2017, in which he again repeated his request for additional pleading paper. Id., Ex.
16, ECF 164. What is missing, however, is any grievance that addresses plaintiff’s complaint
about the “cell search,” performed on October 10, 2017, or alleges that the cell search was in
retaliation for his requests for pleading paper or his previously-filed grievance on the issue. The
remaining defendants have therefore carried their burden to show that plaintiff failed to exhaust
his First Amendment retaliation claim.
Plaintiff asserts that his failure to exhaust this claim should be excused based on “the
retaliation for filing a grievance in itself.” Resp. Mot. Summ. J. 10, ECF 192. “[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 determining whether a threat rendered the
grievance process effectively unavailable, the court first considers whether the prisoner actually
believed the prison official would retaliate against him, and then considers whether the official’s
statements could reasonably be viewed as a threat of retaliation. Id. at 987–88.
Following the search of his cell, plaintiff continued to request pleading paper from the
law library, and as mentioned above, he filed a grievance regarding pleading paper on October
31, 2017. See Monical Decl., Exs. 15–17, In other words, there is no evidence that plaintiff
subjectively feared retaliation for attempting to file a grievance because he filed at least one
additional grievance after the allegedly “retaliatory” cell search and did not raise any issue
regarding the search or any retaliatory motive by Rochester. See Osborne v. Peters, No. 2:20-cv-
02260-MC, 2022 WL 2904395, at *4 (D. Or. July 22, 2022) (“There is also no evidence that any
TRCI personnel threatened or punished plaintiff when he sought help through kytes, reports to

BHS, conversations with TRCI officers, and letters to officials.”); Wilkins v. Corr. Officers, No.
2:21-cv-03383-VAP-E, 2022 WL 3206422, at *12 (C.D. Cal. July 13, 2022) (rejecting the
plaintiff’s “fear of retaliation” excuse because he filed, among other things, several other
grievances during the relevant time). Thus, plaintiff’s failure to grieve the issue of the cell search
or Rochester’s alleged retaliatory motive is not excused, and the remaining defendants are
therefore entitled to summary judgment on plaintiff’s First Amendment retaliation claim.
III. Other Pending Motions
As mentioned above, there are numerous outstanding motions filed by plaintiff in this
case. In several of the motions, plaintiffs seek discovery from defendants related to the merits of
plaintiff’s claims, such as video recordings from SRCI during the relevant time, the names of the

individual corrections officers who searched plaintiff’s cell, or a motion regarding depositions of
the remaining defendants. The determination that the remaining defendants are entitled to
summary judgment based on lack of exhaustion necessarily moots any outstanding motions
regarding discovery going to the merits of plaintiff’s claims. Therefore, plaintiff’s Motion to
Compel (ECF 136), Second Motion to Compel (ECF 142), and Motion for Issuance of
Subpoenas (ECF 150) are denied as moot.
Plaintiff’s Motion for Leave to File a Second Amended Complaint (ECF 180), which was
filed after the remaining defendants filed their motion for summary judgment, is denied because
it is futile. Although leave to amend under Rule 15 is to be granted with “extreme liberality,”
Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (citation omitted), it
is not automatically granted. Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990).
Leave may be denied “due to undue delay, bad faith or dilatory motive on the part of the movant,
repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the

opposing party, and futility of amendment.” Carvalho v. Equifax Info. Servs., LLC, 629 F.3d
876, 892–93 (9th Cir. 2010) (simplified).
The proposed Second Amended Complaint only seeks to identify previously unnamed
“Doe” defendants; it does not attempt to add any additional facts regarding the exhaustion of
plaintiff’s claims. See Mot. Amend 1, ECF 180; Proposed Second Am. Compl. 5, 8–15, ECF
180-1. The proposed changes thus would not change the analysis above regarding plaintiff’s
failure to exhaust. See United States v. Corinthian Colleges, 655 F.3d 984, 995 (9th Cir. 2011)
(explaining that futility may support denial of a motion to amend if it is clear that the pleading,
as amended, is subject to dismissal and cannot be cured by amendment) (citations omitted).
Finally, plaintiff has filed an Objection to Order 163 and Order 156, (ECF 167), and an

Objection to Order on Motion for Sanctions 164 (ECF 170). Because the parties have consented
to magistrate judge jurisdiction in this case, those “objections” are construed as motions for
reconsideration and are denied. Reconsideration under FRCP 59(e) is an “extraordinary remedy .
. . to be used sparingly in the interests of finality and conservation of judicial resources.” Kona
Enter. Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000). Plaintiff has not provided
newly discovered evidence, demonstrated that the court committed clear error, or pointed to an
intervening change in the controlling law that would justify changing the ruling in Orders 156,
163, or 164. See 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999) (citation
omitted).
ORDER
Defendants’ Motion for Summary Judgment (ECF 171) is granted, and plaintiff’s Motion
to Compel (ECF 136), Second Motion to Compel (ECF 142), and Motion for Issuance of
Subpoenas (ECF 150) are denied as moot. Plaintiff’s Motion for Leave to File a Second

Amended Complaint (ECF 180) is denied because it is futile. Plaintiff’s Objection to Order 163
and Order 156 (ECF 167) and Objection to Order on Motion for Sanctions 164 (ECF 170) are
construed as motions for reconsideration and are denied.
DATED January 2, 2025.

/s/ Youlee Yim You
Youlee Yim You
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10773471. Public record. Not legal advice.