Opinion
2:22-CV-01288-YY 2:22-CV-01311-YY 2:22- CV-01395-YY
07-30-2024
ENRIQUE ZACARIAS DIAZ, Plaintiff, v. D. LOYA, Defendant. ENRIQUE ZACARIAS DIAZ, Plaintiff, v. OREGON DEPARTMENT OF CORRECTIONS, and J. DOUGLAS, Correctional Officer, Defendants. ENRIQUE ZACARIAS DIAZ, Plaintiff, v. SPELMAN,Defendant.
FINDINGS AND RECOMMENDATIONS
Youlee Yim You United States Magistrate Judge
FINDINGS
Pro se plaintiff Enrique Diaz, an adult in the custody of the Oregon Department of Corrections (“ODOC”), has filed three 42 U.S.C. § 1983 actions, which have been consolidated. Plaintiff claims his equal protection rights under the Fifth and Fourteenth Amendment were violated as follows:
• In Case No. 222-cv-01311-YY, he alleges that on May 22, 2022, a corrections officer, J. Douglas, “was acting very unprofessional” during “phone sign up,” told plaintiff to “speak the fuck up,” and called plaintiff a “spic” as he was walking away.
• In Case No. 2:22-cv-01288-YY, plaintiff alleges that, on August 4, 2022, a corrections officer, D. Loya, was picking up dinner trays and called him a “spic” after breathing on his dinner tray for the third week in a row.
• In Case No. 2:22-cv-1395-YY, plaintiff alleges that on August 26, 2022, another corrections officer, Spelman, “started harassing me about my belongings in my window,” and when plaintiff asked the corrections officer for his name, the officer called plaintiff a “retard,” and also called plaintiff a “spic” as he was walking away.
Defendants have filed consolidated motions for summary judgment in which they argue that all of plaintiff's claims must be dismissed because plaintiff failed to exhaust his administrative remedies before filing suit. Because plaintiff indeed failed to exhaust his administrative remedies, the motion for summary judgment should be granted.
See Mot. Summ. J., ECF 22, in Case No. 2:22-cv-1288-YY, Mot. Summ. J., ECF 24, in Case No. 2:22-cv-1311-YY, and Mot. Summ. J., ECF 23, in Case No. 2:22-cv-1395-YY. All citations to the docket in these Findings and Recommendations reference documents that were filed in the lead case, Diaz v. Loya, 2:22-cv-1288-YY.
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)).
In determining what facts are material, the court considers the underlying substantive law regarding the claims. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). Otherwise stated, only disputes over facts that might affect the outcome of the suit preclude the entry of summary judgment. Id. A dispute about a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Id. at 248-49. A “scintilla of evidence” or “evidence that is merely colorable or not significantly probative” is insufficient to create a genuine issue of material fact. Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). 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 resolved against the moving parties and inferences are drawn in the light most favorable to the non-moving party.” Addisu, 198 F.3d at 1134 (citation omitted).
II. PLRA Exhaustion Requirement
The PLRA prescribes that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e. Exhaustion is a precondition to an inmate bringing any lawsuit challenging prison conditions. Woodfordv. Ngo, 548 U.S. 81, 85 (2006). Under the PLRA, exhaustion is mandatory and the court lacks discretion to consider claims challenging prison conditions. Id. 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. Id. at 89.
“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.
III. Plaintiff's Failure to Exhaust
As defendant correctly contends, plaintiff never filed a grievance regarding the incident that allegedly occurred on August 4, 2022. Thus, this claim is unexhausted for that reason.
Regarding the incidents that allegedly occurred on May 22, 2022, and August 26, 2022, plaintiff filed initial grievances, but they were denied because plaintiff had exceeded the number of grievances allowed per the Oregon Department of Corrections grievance review system.
O.A.R. 291-109-0215 provides in pertinent part as follows:
(1) An AIC cannot have more than four active complaints (grievances, discrimination complaints, or appeals of either) at any time. Any grievance or appeal submitted that exceeds that limit will be found to be an improper use of the grievance review and discrimination complaint review systems and returned to the AIC with a statement of the rule.
(2) An AIC cannot submit more than a combined total of four initial AIC grievances and discrimination complaints per calendar month. ...
(4) Any grievance or discrimination complaint (or appeal of either) received that causes the AIC to exceed the limits described in OAR 291-109-0215(1) or (2) will be considered an improper use of the grievance review and discrimination complaint review systems.These rules do not apply to do not apply to emergency grievances, sexual harassment grievances or sexual abuse grievances. O.A.R. 291-109-0215(5).
Plaintiff's grievance related to the May 22, 2022, No. 2022-08-111, was returned to him with the notation that he could not have more than four active complaints at any time and could not have more than a combined total of four initial grievances and discrimination complaints per calendar month. Main Decl., Ex. 10 at 38, ECF 23. The August 26, 2022 incident, No. 2022-08142, was returned to plaintiff for the same reason. Id. at 24. In fact, plaintiff had filed 47 grievances between February 8, 2022, and September 9, 2022, complaining of things such as that he wanted better toenail clippers, he was forced to make his bed and clean his cell, he wanted the television turned more toward the left and the staff to change the channels more often, and he wanted nine different corrections officers or medical staff to be fired or disciplined. Id., Ex. 9, ECF 23 at 38-40. Under similar facts, courts have found that the plaintiff failed to properly exhaust administrative remedies. See, e.g., Eckardv. Glebe, No. C14-5898 RJB-KLS, 2015 WL 6507233, at *8 (W.D. Wash. Oct. 5, 2015), report and recommendation adopted, No. C14-5898 RJB-KLS, 2015 WL 6507519 (W.D. Wash. Oct. 27, 2015) (finding that the plaintiff did not properly exhaust his administrative remedies when his grievance was returned to him where he had “flooded the system with grievances” and exceeded the grievance limit).
Instead of submitting a formal written response to the motion for summary judgment, plaintiff filed a declaration after the deadline to file the response had passed. Decl., ECF 27. In his declaration, plaintiff did not address defendants' argument that he had exceeded the limitation on the number of grievances that could be pending or filed. Instead, plaintiff explained that his grievance for the May 22, 2022 incident was three months late because he did not know the name of the corrections officer, who was not wearing a name tag. Id. With regard to the August 26, 2022 incident, plaintiff asserted that the corrections officer had provided him with an improper spelling of his name, which plaintiff “assum[ed]” was the reason it was not grieved. Id. Plaintiff did not address the August 4, 2022 incident at all.
Approximately one month after defendants filed a reply brief, plaintiff submitted a “Specific Written Objection” in which he acknowledged defendants' argument that he had more than four active complaints pending and had filed more than four complaints in a month, and that he could have withdrawn some of his complaints but elected not to do so. ECF 31. Plaintiff attested that he had “never asserted that he should be excused from fully exhausting his administrative remedies” and had “instead asked the court if one of the grievances['s] timeliness be excused as one of the correctional officers, Correctional Officer J. Douglas, does not wear his name tag” making it “difficult to obtain his name.” Id. Plaintiff went on to state, “[a]s for the other two they were timely and plaintiff offers no excuse or anything further as to this subject.” Id. Plaintiff specifically conceded, “[a]s to the denial of these grievances for having more than four active complaints at one time and during a time when he had already filed in excess of four complaints for the month[,] plaintiff offers no excuse to this .” Id. (emphasis added).
Plaintiff also asserted that “despite not withdrawing any grievances to have one of these grievances accepted a denied grievance cannot be appealed.” ECF 31. It is unclear what plaintiff is arguing here. Plaintiff does not expand on this argument or explain it, and cites to no administrative rule.
Thus, plaintiff offers no opposition in response to defendants' argument that he failed to exhaust his administrative remedies because he had four active grievances pending and had filed four grievances in one month. Plaintiff concedes that he “offers no excuse to this.” Therefore, defendants are entitled to summary judgment. See Marshall v. Oregon Dep't of Corr., No. 3:20-CV-00146-CL, 2021 WL 1897747, at *3 (D. Or. Apr. 22, 2021), report and recommendation adopted, No. 3:20 CV 00146-CL, 2021 WL 1895237 (D. Or. May 11, 2021) (finding the plaintiff failed to exhaust where his grievance was denied on the basis that he was not permitted to submit more than four grievances per month, and he failed to resubmit his grievance); Heilbrun v. Villanueva, No. 3:14-CV-1706-SI, 2017 WL 2432152, at *5 (D. Or. June 5, 2017), aff'dsub nom. Heilbrun v. Villianueva, 719 Fed.Appx. 706 (9th Cir. 2018) (finding the plaintiff failed to exhaust where he had already filed six grievances in a month and “could have, but did not, refile his grievance the following month”).
Dismissal without prejudice is the appropriate remedy where a claim is unexhausted. McKinney v. Carey, 311 F.3d 1198, 1200 (9th Cir. 2002).
Neither party addresses the Ninth Circuit's decision in Eaton v. Blewett, 50 F.4th 1240, 1246 (9th Cir. 2022), where the court found that the plaintiff had “demonstrated that questions of fact” . . . “as to whether he could have withdrawn an active grievance (1) in time to refile his mail-related grievance or (2) without forfeiting the claim underlying the withdrawn grievance.” Id. There, the plaintiff had “demonstrated that there were routine delays between [the prison's] processing of a grievance and sending notice of its decision to an AIC,” and “when he requested information about his active grievances, [he] did not receive information about the status of those grievances or options to substitute his mail-related grievance for one of the pending grievances.” Id.; see also Marshall, 2021 WL 1897747 at *3 (recognizing that “the monthly limit for filed grievances, when combined with the fourteen-day deadline for submitting initial grievances, potentially could result in the unavailability of the grievance process”). Here, despite his obligation to do so, plaintiff has not responded to the motion for summary judgment with any such facts. See Mosher v. Saalfeld, 589 F.2d 438, 442 (9th Cir. 1978) (“When a motion for summary judgment is made and supported by affidavits or other material, the adverse party may not rest upon the allegations of his pleadings. He must respond by affidavits or otherwise and set forth specific facts showing that there is a genuine issue for trial.” (simplified) (citing Fed.R.Civ.P. 56(e)). Therefore, Eaton is inapplicable.
RECOMMENDATIONS
Defendants' motions for summary judgment-ECF 22 in Case No. 2:22-cv-1288-YY, ECF 24 in Case No. 2:22-cv-1311-YY, and ECF 23 in Case No. 2:22-cv-1395-YY-should be GRANTED and the cases should be dismissed without prejudice.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Friday, June 28, 2024. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 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 Recommendations will go under advisement.
NOTICE
These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.