Opinion
2:19-cv-00376-AC
05-14-2021
STEPHEN EDWARD COX, SR. Plaintiff, v. COLETTE S. PETERS, Director of Oregon Department of Corrections; BRAD CAIN, Superintendent of Snake River Correctional Institution; L. BENJAMIN, Unit Officer of Mental Health Department; T. BUSTER, Behavioral Health Services Custodian Manager; RANDY GILBERTSON, Captain; JOSEPH BLACKWELL, Officer; BRYAN SUNDQUIST, Lieutenant; CINDY WAGGONER, Behavioral Health Services Counselor; ANNE MALLORY, Behavioral Health Services Specialist; and AMBER CAMPBELL, Inmate Work Skills Specialist. Defendants.
FINDINGS AND RECOMMENDATION
JOHN V. ACOSTA, UNITED STATES MAGISTRATE JUDGE
In the First Amended Complaint (“Complaint”), filed January 31, 2020, Stephen Edward Cox, Sr. (“Cox”), an inmate currently housed at Snake River Correctional Institute (“SRCI”), filed this Section 1983 lawsuit seeking damages for injuries he suffered during an April 20, 2017 attack and for protection from being at risk of subsequent attacks. (Complaint, ECF No. 49 (“Compl.”), ¶ 4.) Cox contends SRCI's failure to protect him and minimize his exposure to known risks of harm violates his constitutional right to be free from cruel and unusual punishment under the Eighth Amendment. (Compl. ¶¶ 64-70.) Defendants filed a motion for summary judgment (“Motion”) based on Cox's failure to exhaust his available administrative remedies. (State Defs.' Mot. for Summ. J., ECF No. 56 (“Mot.”), at 2.) The court finds Cox is relieved from his duty to exhaust available administrative remedies due to his physical and mental incapacitation. Accordingly, the Motion should be denied.
Cox requested oral argument on his motion. The court finds this motion appropriate for disposition without oral argument, pursuant to LR 7-1(d)(1).
Background
The Oregon Department of Corrections (“ODOC”) initially admitted Cox to custody on February 12, 2009. (Decl. of Kelcie Wiley in Supp. of Defs.' Mot. for Summ. J., ECF No. 57 (“Wiley Decl.”), ¶ 24.) ODOC transferred Cox to SRCI on October 9, 2013 where he currently resides. (Id.) Cox is sixty-five years old, hard of hearing, and effectively blind without eyeglasses. (Decl. of Stephen Edward Cox Sr., in Opp'n. of Defs.' Mot. Summ. J., ECF No. 68 (“Cox Decl.”), ¶ 8.) An SRCI staff member noted Cox “lip reads and without [his eyeglasses] [she has] trouble communicating with him.” (Decl. of Erica A. Clausen in Supp. of Pl.'s Opp'n. to State Defs.' Mot. for Summ. J., ECF Nos. 69, 70 (“Clausen Decl.”), Ex. 4.) Because of his advanced age and diminished capacity, ODOC determined Cox required a full-time, live-in helper to meet his daily needs. (Id.) In the Complaint, Cox asserts on February 13, 2017, SRCI assigned David Robert Baker (“Baker”), an inmate at SRCI, to assist Cox. (Compl. ¶ 36.) Shortly thereafter, Baker began his job assignment as Cox's assistant and moved into a cell with Cox in the Mental Health Unit Complex 2, Unit MHD-13 (“MHD”). (Id.)
The Clausen Decl. is filed as ECF No. 69. The sealed exhibits referenced are identified and attached to the Clausen Decl. filed as ECF No. 70.
On April 20, 2017, Baker attacked Cox in their shared cell. (Cox Decl. ¶ 2.) Baker removed a twenty-five-pound steel drawer from a desk in their cell and hit Cox in the head repeatedly with the drawer before getting on top of Cox and hitting him with his fists. (Id.) According to SRCI Officer Brown, when he asked Baker what happened, Baker replied: “So I'm a paranoid schizophrenic and you fuckers want to keep fucking with me and laughing at me. That's okay, watch me go fucking crazy and beat up fools and kill motherfuckers!” (Clausen Decl. Ex. 5, at 6.) Baker proclaimed, “I didn't care if [Cox] lived or died!” (Id.) Cox added, “He beat me in the head more times than I could count.” (Cox Decl. ¶ 2.)
Immediately following the attack, SRCI officials rushed Cox to a local hospital in Ontario, Oregon, before transporting him to a better equipped hospital in Boise, Idaho. (Cox Decl. ¶ 5.) Cox suffered severe and extensive injuries, including a right orbital blowout floor fracture, nasal septal fracture, scleral hemorrhage, lacerations to the face and body, and multiple fractures to the face. (Clausen Decl. Ex. 10, at 1-4.) The injuries required reconstructive surgery. (Id. at 2) Cox received general anesthesia to undergo a procedure for closed reduction of nasal bones and an open septoplasy. (Id.)
“Closed reduction” is a procedure in which broken bones are reset without an incision. “Open septoplasty” is a surgical procedure to repair a damaged septum.
After surgery, doctors prescribed Acetaminophen-Oxycodone, commonly known as “Percocet, ” a potent narcotic pain medication which can cause side effects including dizziness, headache, loss of appetite, nausea, stomach pain, unusual tiredness, or weakness. (Clausen Decl. Ex. 11, at 3; Ex. 12, at 11.) ODOC then transferred Cox to the SRCI infirmary, where he remained until May 19, 2017. (Cox Decl. ¶ 3.)
Cox claims the cumulative effects of the attack and the prescribed painkillers severely impaired his mental acuity. (Cox Decl. ¶¶ 3, 6, 7, 11.) He recalled being “extremely disoriented and [his] memory [was] not clear.” (Id. ¶ 3.) He did not remember his attack, trip to the hospital, or reason for imprisonment. (Id. ¶ 7.) Additionally, Cox found it nearly impossible to focus for more than a few moments. (Compl. ¶ 51.)
On May 4, 2017, an infirmary intern prepared and submitted Cox's first grievance over a new pair of eyeglasses (“First Grievance”). (Clausen Decl. Ex. 14.) In the First Grievance, the infirmary intern explained how Cox lost his eyeglasses, and added that without his eyeglasses, Cox is “totally blind.” (Id.) Because of Cox's hearing impairment, he depended on his eyeglasses to “[read] body language, gestures, and, to a lesser degree, their lips.” (Cox Decl. ¶ 8.) Cox recalled “somebody in the infirmary filled out some papers and gave them to me, saying I needed to sign them if I wanted to get new glasses.” (Cox Decl. ¶ 9.) The SRCI Grievance Office (“Grievance Office”) granted the First Grievance. (Wiley Decl. Attach. 5, at 3.) Nearly one month later, on May 18, 2017, Cox received a new pair of eyeglasses. (Cox Decl. ¶ 10.)
On May 19, 2017, Cox left the infirmary and returned to his cell in the MHD. (Cox Decl. ¶ 11.) He continued to feel “confused and disoriented” and recalls “suffering from the after effects of the attack itself, including significant trouble breathing, memory lapses, trouble focusing, a loss of equilibrium, and impaired vision.” (Cox Decl. ¶ 11; Clausen Decl. Ex. 15, at 1.) Cox struggled to recall details of the assault or remember friends who visited him while hospitalized. (Cox Decl. ¶ 7.) As a result of his weakened mental and physical condition, Cox took leave from his prison duty as an orderly. (Cox Decl. ¶ 12.) He did not “sufficiently recover” to resume his prison duty until May 27, 2017. (Id.)
Additionally, at the time Cox returned to his cell, he did not recall SRCI's grievance procedure or think to file a grievance within a specific timeframe. (Cox Decl. ¶ 13.) However, other inmates encouraged Cox to file a grievance addressing his attack. (Id. at ¶ 14.) The inmates even obtained the grievance forms for Cox. (Id.) Cox asserts he then immediately began working on another grievance. (Id.)
On May 31, 2017, Cox filed a second grievance seeking to replace items lost from his cell following the attack (“Second Grievance”). (Wiley Decl. ¶ 24; Wiley Decl. Attach. 5, at 4.) In the Second Grievance, Cox complained he discovered several personal items missing when he returned to his cell after being released from the infirmary. (Wiley Decl. Attach. 5, at 4.) Cox listed the missing items and requested SRCI replace them. (Id.). On June 27, 2017, Sergeant Smith from SRCI responded to the Second Grievance and explained the Oregon State Police possessed some of Cox's missing items while other items had been replaced. (Wiley Decl. Attach. 5, at 6.)
Also, on May 31, 2017, Cox filed a third grievance over SRCI's failure to protect him from Baker (“Third Grievance”). (Clausen Decl. Ex. 15.) In the Third Grievance, Cox complained Defendants' failure to protect him resulted in his physical and mental injuries. (Id.) On June 6, 2017, an SRCI grievance coordinator rejected the Third Grievance, explaining Cox did not sign the form or submit it within thirty days of his attack. (Wiley Decl. Attach. 5, at 13.)
On June 7, 2017, when Cox learned he did not sign the Third Grievance, he filed a fourth grievance again generally addressing the failure to protect issues raised in the Third Grievance (“Fourth Grievance”). (Clausen Decl. Ex. 17.) On June 12, 2017, SRCI grievance coordinator, T. Greiner (“Greiner”), returned the Fourth Grievance for noncompliance with the Grievance Review System (“Grievance System”) stating: “grievances must be received by the designated [g]rievance [c]oordinator within 30 calendar days of the incident, [inmate] may not file more than one grievance regarding a single incident or issue, and [inmate] has not identified the staff.” (Clausen Decl. Ex. 18.)
On June 13, 2017, Cox appealed the rejection of the Fourth Grievance by submitting a first level grievance appeal (“Grievance Appeal”). (Clausen Decl. Ex. 19.) In the Grievance Appeal, Cox explained he could not file or sign the Fourth Grievance within thirty days of the attack, or identify the relevant staff, because of his mental impairments and medical treatments. (Id.) Greiner returned the Grievance Appeal on June 20, 2017, for non-compliance stating: “[t]his grievance has never been accepted. You cannot appeal a grievance that wasn't accepted.” (Clausen Decl. Ex. 20.) Cox did not appeal this response. (Wiley Decl. ¶ 34.)
However, on June 26, 2017, Cox re-submitted the Fourth Grievance and included an inmate communication form addressed to grievance coordinator, James Taylor (“Taylor”) (“Re-submitted Fourth Grievance”). (Wiley Decl. Attach. 5, at 18-19.) In the Re-submitted Fourth Grievance, Cox requested permission to file the grievance outside of the required thirty-day grievance period. (Id.) On June 26, 2017, Taylor denied the Re-submitted Fourth Grievance explaining, “I cannot accept your request for an extension to the 30 days allowed to file a grievance. You successfully filed a grievance on May 4, 2017, [referring to the First Grievance] which was within the 30 days demonstrating your ability.” (Wiley Decl. Attach. 5, at 20.)
Cox alleges Defendants' actions or inactions resulted in his harmful attack, injury, and exposure, in violation of his Eighth Amendment rights. (Compl. ¶¶ 64-70.) Cox claims he suffered permanent impairment as well as emotional and psychological harm as a result of his physical injuries, continued exposure to removable steel desk drawers, and unscreened live-in helpers (Id. ¶ 69.)
On May 13, 2020, Defendants filed the Motion in which they asserted Cox failed to properly exhaust his available administrative remedies, as set forth in Chapter 291 of the Oregon Administrative Rules (“OAR”) and required under the Prison Litigation and Reform Act (“PLRA”). 42 U.S.C § 1997e(a). On August 21, 2020, Cox filed his opposition to the Motion, seeking relief from the exhaustion requirement due to his physical and mental incapacity. (Pl.'s Opp'n. to State Defs.' Mot. for Summ. J., ECF No. 67 (“Opp'n”), at 2.)
Cox's opposition to the Motion is sealed.
The parties agree Cox failed to timely exhaust his administrative remedies. (Mot. at 7; Cox Decl. ¶ 13.) Consequently, the sole issue before the court is whether Cox's physical and mental incapacity relieved him of the requirement to exhaust available administrative remedies.
Legal Standard
Summary judgment is appropriate where 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) (2019). The moving party must establish the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party establishes the absence of a genuine issue of material fact, the non-moving party can only defeat summary judgment by going beyond the allegations in the complaint to demonstrate a genuine issue for trial. Hernandez v. Spacelabs Medical, Inc., 343 F.3d 1107, 1112 (9th Cir. 2003). A “mere scintilla” of evidence will not defeat summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). Moreover, the non-moving party must support a factual assertion or genuine dispute with admissible evidence. Fed.R.Civ.P. 56(c) (2019). If the record, taken as a whole, would not lead a reasonable 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 omitted).
The court must view the evidence in the light most favorable to the non-moving party and all reasonable inferences must be drawn in favor of the non-moving party. Albino v. Baca, 747 F.3d 1162, 1168 (9th Cir. 2014). All reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party. Hector v. Wiens, 533 F.2d 429, 432 (9th Cir. 1976). Where different inferences may be drawn, summary judgment is inappropriate.Sankovich v. Life Ins. Co. of North America, 638 F.2d 136, 140 (9th Cir. 1981).
Discussion
I. Administrative Procedures
OAR Chapter 291 provides the policies for ODOC, including Grievance System procedures for inmates. Inmates at SRCI are informed of the Grievance System during an admission and orientation class when they first arrive. (Wiley Decl. ¶ 8.) Inmates are also informed of the Grievance System procedures through the inmate handbook, as well as the grievance forms themselves. (Id. ¶ 10.) If an inmate is unable to attend the admission and orientation class, makeup classes are offered. (Id. ¶ 9.) In addition, grievance instructions are provided along with grievance forms, and may be obtained from unit housing officers. (Id. ¶ 10.)
Inmates are encouraged to first address their concerns with ODOC staff through informal written or verbal communication. Or. Admin. R. 291-109-0100(3)(a) (2021). If informal resolution is unsuccessful, an inmate may initiate a grievance by filing an approved inmate grievance form within thirty days of the incident giving rise to the grievance. Or. Admin. R. 291-109-0140(1), 0150(2) (2018). Under the Grievance System, an inmate “may file a grievance past 30 days of the incident if the inmate can demonstrate why the grievance could not be filed within the timelines established by rule; i.e., physical incapacity, etc.” Id. at 291-109-0150(2)(a). An inmate unsatisfied with the initial grievance response may appeal to the functional unit manager within fourteen days of receiving the grievance response. Id. at 291-109-0170(1) (2018). If the first appeal is denied, an inmate can appeal the functional unit manager's decision to the Assistant Director, whose decision is final and not subject to further administrative review. Id. at 291-109-0170(2) (2018).
On October 10, 2019, ODOC repealed Or. Admin. R. 291-109-0140, 291-109-0150, and 291-109-0170. (See Permanent Administrative Order (U.S. SEC'Y of ST. & LEGIS. COUNS., 2019). However, because Cox's claim accrued and he filed the related grievances in 2017, these rules govern Cox's grievances.
II. Failure to Exhaust Administrative Remedies
Before filling a suit under Section 1983, the PLRA requires inmates to exhaust all available administrative remedies. Woodford v. Ngo, 548 U.S. 81, 85 (2006). Exhaustion must be proper, meaning the “grievant must use all steps the prison holds out, enabling the prison to reach the merits of the issue.” Griffin v. Arpaio, 557 F.3d 1117, 1119 (9th Cir. 2009) (citing 42 U.S.C. § 1997(e)(a)). To properly exhaust administrative remedies, inmates must proceed through the highest level within the Grievance System prior to filing an action in court. Woodford, 548 U.S. at 95 .
Procedural rules are not defined by the PLRA, but rather by a prison's specific grievance requirements. Jones v. Bock, 549 U.S. 199, 218 (2007). Mandating exhaustion allows “prison officials an opportunity to resolve disputes concerning the exercise of their responsibilities before being haled into court.” Id. at 204.
If an inmate files suit without first exhausting their administrative remedies, Defendants may move for summary judgement under a failure to exhaust defense. Albino, 747 F.3d at 1166. “Failure to exhaust under the PLRA is ‘an affirmative defense that the defendant must plead and prove.'” Id.(quoting Jones, 549 U.S. at 204). Defendants have the burden of producing evidence to prove an inmate failed to exhaust all available administrative remedies. Id. Once the defendant carries this burden, the inmate must provide evidence showing existing and generally available administrative remedies are effectively unavailable to him. Albino, 747 F.3d at 1172. If, when viewed in the light most favorable to the inmate, the evidence shows an excused failure to exhaust, the defendant is not entitled to summary judgment under Rule 56. Id. at 1171-72.
III. Exceptions to the Exhaustion Requirement
An inmate is required to exhaust only such administrative remedies as are available. Ross v. Blake, 136 U.S. 1850, 1856 (2016). The PLRA does not define the phrase “such administrative remedies as are available” in 42 U.S.C. § 1997e(a). Underwood v. Wilson, 151 F.3d 292, 294 (5th Cir. 2001). Thus, these terms are construed with their ordinary meaning. Id. Webster's New International Dictionary defines “available” as “immediately utilizable, ” and “is accessible or may be obtained: personally obtainable.” Id.
Certain circumstances may excuse the exhaustion requirement. Carter v. Paramo, et al., No. 3:17-cv-1833-JAH-AGS, 2018 WL 4579854, at 5* (D. Cal. Sept. 28, 2018). For example, in a medical emergency or afterward, an inmate's physical or mental incapacitation may prevent him from utilizing a grievance process. Kincaid v. Sangamon County, 435 Fed.Appx. 533, 536 (7th Cir. 2011). In that instance, the inmate's incapacitation excuses his failure to exhaust administrative remedies. (Id.)
IV. Medical Incapacity Exception to the Exhaustion Requirement
As previously indicated, physical and mental incapacity are valid reasons for failure to exhaust available administrative remedies. McCoy v. Gilbert, 2 70 F.3d 503, 510-11 (7th Cir. 2001). “Administrative remedies are deemed unavailable when (1) an inmate's untimely filling of a grievance is because of a physical injury and (2) the [G]rievance [S]ystem rejects the inmate's subsequent attempt to exhaust his remedies based on the untimely filling of the grievance.” Ollison v. Vargo, No. 6:11-cv-01193-SI, 2012 WL 5387354, at 2* (D. Or. Nov. 1, 2012) (citing Days v. Johnson, 322 F.3d 863, 868 (5th Cir. 2003)) (internal quotation marks omitted). While the Ollison court considered physical injury, the reasoning applies as easily to mental incapacitation. Although it does not appear the Ninth Circuit addressed the issue of whether an inmate's physical or mental condition could render an administrative remedy “effectively unavailable, ” other circuits recognize an administrative remedy may not be “personally attainable” when an inmate is prevented from seeking internal recourse under circumstances beyond his control. Ollison, 2012 WL 5387354, at 2* (discussing Days, 322 F.3d at 867-68).
In the Fourth Grievance, Cox explained he experienced “a lot of mental issues, diminished vision, increased equilibrium problems, and post-traumatic stress” after his attack. (Clausen Decl. Ex. 17.) When the Grievance Office returned the Fourth Grievance to Cox for non-compliance, namely untimeliness, Cox sought to appeal the decision based on his nearly thirty days of post-attack hospitalization. (Clausen Decl. Ex. 19.) Cox added, even after his return to SRCI, he could not timely file “because of all the medical problems.” (Id.) Further, Cox explained he experienced traumatization due to “mental and medical problems” resulting from his attack. (Id.) In response, the Grievance Office rejected Cox's explanations on grounds he “successfully filed a grievance on May 4, 2017, [referring to the First Grievance], which was within the 30 days demonstrating your ability.” (Wiley Decl. Attach. 5, at 20.)
Defendants assert Cox's administrative remedies were “available” to him, as that term has been interpreted by the courts. Defendants acknowledge that physical and mental incapacitation typically are good cause for an untimely grievance filing, buth they argue such incapacitations are not good cause here because Cox successfully filed the First Grievance. (Id.). This, Defendants contend, demonstrate that administrative remedies clearly were available to Cox. (Id.).
Cox alleged the administrative remedies were unavailable to him because of his physical and mental incapacitation, which provide good cause for an untimely grievance filling. (Comp. ¶ 56.) Cox adds the infirmary staff, not he, prepared and filed the First Grievance while he suffered from the after-effects of his attack. (Cox Decl. ¶ 9.) Cox asserts that once he gained the mental acuity to file other grievances, he did so. (Id. at ¶¶ 14, 15.)
V. Application
The record supports Cox's assertion that he lacked the physical and mental capacity to meet SRCI's deadline for filing a timely grievance, and thus that he should be excused from satisfying the exhaustion requirement. Cox alleged he “suffered and continues to suffer from actual physical injuries and permanent impairments as well as psychological and emotional harm.” (Id.) The record establishes his physical injuries include “significant trouble breathing, memory lapses, trouble focusing, a loss of equilibrium, and impaired vision.” (Cox Decl. ¶ 11; Clausen Decl. Ex. 15, at 1.) Cox alleges his psychological and emotional harm include “nightmares, symptoms of post-traumatic stress, and other psychological effects.” (Compl. ¶ 60.) Additionally, Cox represents he did not “[recover] sufficiently, ” to resume his prison job for more than a month after the attack. (Cox Decl. ¶ 12.) Because of his incapacity, infirmary staff assisted Cox with his First Grievance by preparing and filing it for him.
Defendants acknowledge Cox was “unilaterally assaulted” and hospitalized. (Mot. at 4.)
Defendants argue that although Cox's injuries necessitated infirmary staff's assistance with his First Grievance, the staff's assistance actually confirms that administrative remedies were available to Cox. Defendants claim Cox's injuries “did not render [the] ODOC's grievance review process effectively unavailable to him because he timely accessed the system within 30 days of the assault to file a grievance that was related to the assault[, ] but unrelated to his claims in this lawsuit. [T]he grievance review process was not only available to plaintiff, but he also availed himself of it” (Reply in Supp. of Defs.' Mot. for Summ. J., ECF No. 75 (“Reply”), at 2), and Defendants cite two cases to support this argument.
Defendants first cite Days, involving an inmate who fell and broke his hand. Days, 322 F.3d at 864. Plaintiff claimed his broken hand prevented him from writing a timely grievance and, thus, “exhaustion of his administrative remedies was personally unobtainable.” Id. at 867. When Days filed an untimely grievance, prison officials returned it to him, unprocessed. Id. The Fifth Circuit concluded Days sufficiently satisfied his administrative remedies because his medical condition prevented him from accessing any remedy. Id.
Defendants distinguish Days's situation from Cox's here, contending Days's injury prevented him from filing any grievance in a timely manner while Cox's injury did not prevent him from timely filing the First Grievance. Id. But Days supports Cox's position because there, once plaintiff's broken hand healed, he sought to exhaust his administrative remedies by filing a grievance, albeit untimely. Days, 322 F.3d at 867. Under those circumstances, the court concluded Days “exhausted the administrative remedies that were personally or individually available to him.” Id. The same is true for Cox. When an inmate is incapacitated, the grievance process is not personally “available” to him. See Or. Admin. R. 291-109-0150. Kelsey v. Cain, No. 2:18-cv-01021-SI, 2019 WL 281282, at *3 (D. Or. Jan. 22, 2019) (explaining “an inmate may file a grievance past the 30 days of the incident if the inmate can demonstrate why the grievance could not be filed within the timeliness established by rule i.e., physical [or mental] incapacity, etc.”) Evidence that someone prepared a grievance form for the inmate, as infirmary staff did here, does not necessarily establish the grievance process is available to an inmate who is incapable of filing a grievance on his own. Days, 322 F.3d at 867 (explaining Days's injury rendered him incapable of filing in a timely manner and therefore, administrative remedies were not available to him).
Under the PLRA, a remedy is not “available” to a person who is physically unable to pursue it. Hurst v. Hantke, 634 F.3d 409, 412 (7th Cir. 2011) (considering the grievance procedure for federal prisoners, which provides “an extended period of time during which the inmate was physically incapable of preparing a Request of Appeal” is a “valid reason for delay” in filing a grievance). McCoy, 270 F.3d at 510-11 (explaining a remedy forfeited for failure to comply with a deadline which could not possibly be complied with is not “available” according to 42 U.S.C. § 1997e(a)). Here, the record shows Cox could not comply with the grievance review process without assistance, making the administrative remedy unavailable to him. Days, 322 F.3d at 867-68; 42 U.S.C. § 1997e(a) (explaining an administrative remedy would be forfeited for failure to comply when the circumstances would not provide for compliance or in other words, would not be “available”). Infirmary staff assisting Cox to file his First Grievance does not necessarily establish that administrative remedies were personally available to Cox were available. See Or. Admin. R. 291-109-0150(2)(a) (permitting an inmate to file a grievance thirty days after the incident if the inmate can demonstrate a rationale for the untimely filing, i.e., physical [or mental] incapacity).
Defendants next cite Verrilli v. Winchell, No. 1:09-cv-837 (FJS/RFT), 2010 WL 3909065, at *1 (N.D.N.Y. Sept. 29, 2010). In Verrilli, one inmate assaulted another inmate on July 26, 2008. Id. Because the assaulted inmate sustained severe injuries, prison officials removed him from general population for medical treatment until July 31, 2008. Id. at *2. Upon the inmate's return to prison, prison officials placed him in isolation. Id. On August 8, 2008, the inmate filed a disciplinary action appeal. Id. On August 18, 2008, prison officials again removed the inmate from the prison for additional medical treatment, and he did not return to the prison's general population on August 31, 2008. Id. On September 15, 2008, the inmate filed a grievance, which prison officials rejected the grievance as untimely. Id. The inmate filed suit in federal court.
The defendants moved for summary judgment on PLRA exhaustion grounds. Verrilli, 2010 WL 3909065, at *2. In response, the inmate claimed the grievance process was unavailable to him because of his injuries and his placement in isolation. Id. at *3. The court, however, rejected the inmate's argument based on evidence the inmate wrote and filed a separate appeal within the timeframe he claimed to be unable to file a grievance. Id. The court held that on the record in that case, the inmate's placement in isolation and his injuries did not render the grievance process unavailable to him when he retained the ability to file a grievance on his own behalf. Id.
Defendants contend Verrilli is similar to Cox's circumstances because both inmates filed a grievance on time despite their alleged incapacity or availability of the administrative remedies. The court disagrees. The circumstances are distinguishable because the inmate in Verrilli “wrote and filed an appeal” on his own, but Cox, because of his physical and mental in capacity -conditions the defendants do not dispute - needed assistance writing and filing the First Grievance. (Cox Decl. ¶ 9.)
Cox has provided evidence that he merely signed the First Grievance at the suggestion of infirmary staff and, because of his physical and mental condition, he could not access the grievance process on his own until May 31, 2017, more than a month after his attack. Because a material factual dispute exists as to whether Cox could avail himself of Grievance System remedies in a timely manner, summary judgment is inappropriate. Consequently, the court finds the evidence supports a reasonable inference that Cox, because of his incapacity, was relieved from exhausting administrative remedies due to his decreased physical and mental status.
Conclusion
The Motion (ECF No. 56) should be DENIED.
Scheduling Order
Findings and Recommendation will be referred to a district judge for review. Objections, if any, are due within seventeen (17) days. If no objections are filed, then the Findings and Recommendation will go under advisement on that date. If objections are filed, then a response is due within fourteen (14) days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.