Opinion
Case No. 2:17-cv-00822-AC
04-19-2019
KENNETH LEE, Plaintiff, v. JERRI TAYLOR; LANCE ALBERT; RON MILES; DAVE LILIENTHAL; DWIGHT HAWKINS and NINA SOBOTTA, Defendants.
FINDINGS AND RECOMMENDATION :
Introduction
Plaintiff Kenneth Lee ("Lee"), an inmate currently housed at the Eastern Oregon Correctional Institution ("EOCI") and appearing pro se, filed this First Amendment and Section 1983 lawsuit alleging various EOCI officers retaliated against him for exercising his right to seek redress for his complaints. Lee contends such retaliation violated his constitutional right to free speech afforded by the First Amendment. Currently before the court is the motion for summary judgment (ECF No. 30) filed by Jem Taylor, Superintendent of EOCI at that time ("Taylor"); Lance Albert, Correctional Captain ("Captain Albert"); Dwight Hawkins, Inmate Work Program Coordinator ("Hawkins"); David Lilienthal, Correctional Captain ("Captain Lilienthal"); Ron Miles, Correctional Counselor ("Miles"); and Nina Sobotta, Grievance Coordinator ("Sobotta") (collectively "Defendants") based on failure to exhaust administrative remedies. The court finds Lee adequately exhausted his administrative remedies. Accordingly, Defendants' motion for summary judgment should be denied.
Background
In his complaint filed May 25, 2017, Lee alleges Defendants retaliated against him for raising complaints: (1) regarding another inmate; (2) being denied incentive housing; and (3) attempting to obtain his job back. (Compl., ECF No. 2, at 3D.) The alleged retaliatory acts include giving preferential treatment to another inmate regarding an employment dispute, removing Lee from his incentive housing to a less ideal unit, and failing to restore Lee his job, or an equivalent one.
The court acknowledges Lee failed to verify his complaint pursuant to 28 U.S.C § 1746. Thus, the court relies on the complaint primarily for background facts and to the extent Defendants have also cited and relied on the complaint in their motion for summary judgment.
Lee worked as a welder in EOCI's Physical Plant from February through July 17, 2015. (Compl., at 3.) In February 2015, Lee complained to EOCI staff regarding another inmate who worked in the Physical Plant, "Inmate Gonzales." (Compl., at 3A.) In July of 2015, Inmate Gonzales accused Lee of "talking about access to escape tools," and Lee was placed in segregation while EOCI conducted an investigation. (Compl., at 3C.) Lee denies making such statement. (Compl., at 3C.) As a result of being placed in segregation, Lee lost his work assignment as a welder, his gate pass, and his placement in honors housing ("Incentive Housing"). (Compl. at 3C.)
It appears the gate pass functions as a security clearance for certain prison jobs.
From July 2015 until November 2015, Lee made many verbal complaints to Captain Albert, Miles, Captain Lilienthal, Hawkins, and Sobotta about his removal from incentive housing and lack of work assignment. (Compl., at 3D) (see also Sobotta Decl., ECF No. 31, Attach. 7 at 18-26.) On July 29, 2015, Lee was placed once again in Incentive Housing. (Compl., at 3D.)
However, still unsatisfied with his lack of a work assignment, Lee filed his first grievance on September 16, 2015 (the "First Grievance"). (Sobotta Decl. ¶ 22 at 5.) EOCI denied the First Grievance the same day because it was not filed within the thirty-day window for submitting grievances. (Sobotta Decl. ¶ 23.) Lee then submitted a new grievance (Grievance No. EOCI-2015-09-070), that was also received on September 16, 2015 (the "Grievance"). (Sobotta ¶ 24.) The Grievance provides a timeline of events beginning with Lee's conflicts with Inmate Gonzales and Lee's placement into segregation. (Sobotta Decl., Attach. 7 at 19-23.) The Grievance also outlines his various attempts to obtain a work assignment and ultimately, requested another work placement. (Sobotta Decl., Attach. 7 at 26-27.)
Defendants' motion for summary judgment contains two paragraphs numbered 21 and two paragraphs numbered 22. This cite refers to the second paragraph numbered 22.
EOCI accepted the second Grievance, and on November 18, 2015, Captain Albert responded to the Grievance. (Sobotta Decl., Attach. 7 at 17.) Captain Albert's grievance response (the "Response") stated he was conducting an investigation on Lee and "another Inmate who had threatened the safety of the institution and potentially the public by physically threatening harm to other inmates who would not follow along with [Lee's] program and ideas as the head welder." (Sobotta Decl., Attach. 7 at 17.) The Response also noted because of Lee's "past good conduct," Captain Albert decided to not issue Lee a misconduct report and assisted Lee in getting placed back into Incentive Housing. (Sobotta Decl., Attach. 7 at 17.) However, given the nature of the physical threats, Captain Albert recommended to the "Gate Pass Committee" ("Committee") they "should wait a while longer before restoring [Lee's] gate pass." (Sobotta Decl., Attach. 7 at 17.)
Though Lee did not specifically request to have his gate pass restored in his second Grievance, it is clear that a gate pass would be required in order for Lee to obtain a job similar to the one he lost.
Dissatisfied with the Response, Lee appealed the Response on November 22, 2015 (the "Appeal"). (Sobotta Decl., ¶ 26.) In the Appeal, Lee denied the allegations he was involved in "threatening harm." (Sobotta Decl., Attach. 7 at 2.) Lee also alleged that Captain Albert told Lee he "could work anywhere else such as the garment factory or call center." (Sobotta Decl., Attach. 7 at 5.) Further, Lee noted there was a Committee meeting in which Captain Albert was present, and where "the agreed outcome was that [Lee] would be allowed to receive a gate pass." (Sobotta Decl., Attach. 7 at 5.) Given that outcome, Lee questioned why Captain Albert recommended the Committee to wait longer before restoring his gate pass. (Sobotta Decl., Attach. 7 at 6.) Finally, Lee took issue with the difference in treatment between his inability to get reassigned to a new job, and Inmate Gonzales's ability to be assigned to "4 work assignments." (Sobotta Decl., Attach 7 at 6.)
Indeed, on or around September 23, 2015, Lee received a response to his Inmate Communication form inquiry regarding the restrictions of his work assignment. The response stated: "The committee indeed made the decision that you could have a gate pass, however you are restricted from the physical plant area." (Sobotta Decl., Attach 7 at 13.)
On December 10, 2015, Taylor responded to the Appeal (the "Appeal Response"). (Sobotta Decl., Attach. 7 at 1.) Taylor informed Lee that Captain Lilienthal had been assigned to investigate Lee's Appeal. (Sobotta Decl. Attach., 7 at 1.) Taylor reiterated that Captain Albert authorized Lee's release from segregation and determined "the violation did not rise to the level for submission of a major misconduct report." (Sobotta Decl., Attach. 7 at 1.) Regarding Lee's "gate pass," Taylor stated: "Your situation was reviewed with the Gate Pass Committee. You have been given a work assignment that did not require a gate pass . . . the actions taken by staff members are consistent with the Inmate Work Program / Gate Pass procedure." (Sobotta Decl., Attach. 7 at 1.) Finally, Taylor noted Captain Lilienthal advised Lee of his findings. (Sobotta Decl., Attach. 7 at 1.)
Lee did not appeal the Appeal Response because, he alleges, when he met with Captain Lilienthal, they agreed Captain Lilienthal "would assist [Lee] in obtaining another work assignment of equal or better awards that [Lee] would choose." (Lee Decl., ECF No. 45, at 1.) Lee agreed to "wait approximately a month for [Captain Lilienthal] to get on the gate pass comity [sic] before expecting him to fulfill his promises." (Lee Decl. at 2.) Lee contends during their meeting he "agreed that was 'about as fair a resolution as [he] was likely to get' and that [he] would 'trust [Captain Lilienthal].'" (Pl. Resp. to Mot. [Summ. J.], ECF No. 44 ("Pl. Resp."), at 2.) Lee brought this suit after Captain Lilienthal failed to keep his promise.
Legal Standard
Granting summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a) (2018). The moving party bears the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. Catrett, 477 U.S. 317, 323 (1986). If the moving party demonstrates the absence of a genuine issue of material fact, the non-moving party must identify facts beyond the allegations in the complaint, that show a genuine issue for trial. Id. at 324. The court must view the evidence in the light most favorable to the non-moving party. Gibson v. Cty. of Washoe, 290 F.3d 1175, 1180 (9th Cir. 2002).
However, a mere "scintilla" of evidence will not overcome summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). To defeat summary judgment, the non-moving party cannot simply assert that a fact is not true or is genuinely disputed, rather the assertion must be supported with admissible evidence. FED. R. CIV. P. 56(c) (2018). If a rational trier of fact, considering the record as a whole, could not find for the non-moving party, there is no genuine issue for trial and summary judgment should be granted. Liberty Lobby, Inc., 477 U.S. at 248.
Discussion
Defendants move for summary judgment on Lee's claim, alleging he failed to exhaust his administrative remedies as set forth in Chapter 291 of the Oregon Administrative Rules ("OAR"). Lee contends he was satisfied with Captain Lilienthal's promised relief and therefore was not obligated to appeal the Appeal Response.
I. Failure to Exhaust Administrative Remedies
Under the Prison Litigation Reform Act (the "PLRA"), inmates are required to exhaust all available administrative remedies before filing a suit under Section 1983 to challenge prison conditions. Woodford v. Ngo, 548 U.S. 81, 85 (2006). To properly exhaust administrative remedies, prisoners "must complete the administrative review process in accordance with the applicable procedural rules." Id. at 88. Procedural rules are not defined by the PLRA, but rather by a prison's specific grievance process requirements. Jones v. Bock, 549 U.S. 199, 218 (2007). The purpose of mandating exhaustion is to allow "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 judgment under a failure to exhaust defense. Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). "Failure to exhaust under the PLRA is 'an affirmative defense that the defendant must plead and prove.'" Id. (quoting Jones v. Bock, 549 U.S. 199, 204 (2007)). Defendants have the burden of producing evidence to prove an inmate failed to exhaust all available administrative remedies. Id. Once a defendant has met that burden, "the burden shifts to the [inmate] to 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." Id. at 1172. If, when viewed in the light most favorable to the inmate, the evidence shows a failure to exhaust, the defendant is entitled to summary judgment under Rule 56. Id. "If summary judgment is not appropriate, the district judge may decide disputed questions of fact in a preliminary proceeding." Id. at 1168.
II. Administrative Procedures
OAR Chapter 291, provides the policies for the Oregon Department of Corrections, including grievance procedures for inmates. Inmates at EOCI are informed of the grievance review system during Admission and Orientation class when they first arrive to the facility. (Sobotta Decl., ¶ 8.) Inmates are also informed of the grievance procedures through the inmate handbook, as well as the grievance forms themselves. (Sobotta Decl., ¶ 10.)
Before pursuing a formal grievance, inmates are encouraged "to address their concerns informally with appropriate staff and managers through either dialog or by utilizing inmate communication forms." OR. ADMIN. R. 291-109-0100(3)(a). If informal communications are 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), 0550(2). The grievance must include a complete description of the complaint and include relevant documentation. OR. ADMIN. R. 291-109-0140(1)(b). Failure to use the prescribed form will result in the prison returning the grievance for proper resubmission. OR. ADMIN. R. 291-109-0140(1)(c).
Once an inmate has successfully filed a grievance, prison staff have forty-five days from the date the grievance was received to complete processing of the grievance and respond to the inmate (unless further investigation is necessary). OR. ADMIN. R. 291-109-0160(2)(a). An inmate who is unsatisfied with a prison's grievance response may appeal to the functional unit manager ("First Appeal Process") within fourteen days of receiving the grievance response. OR. ADMIN. R. 291-109-0170(1)(b). Finally, if an inmate's First Appeal is denied and the inmate is unsatisfied with the outcome, they may appeal the functional unit manager's decision to the Assistant Director within fourteen days. OR. ADMIN. R. 291-109-0170(2). The Assistant Director issues a response to the inmate; the Assistant Director's decision is final and not subject to further administrative review. OR. ADMIN. R. 291-109-1070(2)(e)-(f).
III. Exceptions to the Exhaustion Requirement
An inmate may not bring a suit in court until they have properly exhausted their grievance through all appropriate channels of administrative review. Woodford v. Ngo, 548 U.S. 81, 85 (2006). Exhaustion is required even if an inmate's "prayer for relief" does not conform exactly with the prison's possible administrative remedies. See Booth v. Churner, 532 U.S. 731, 739 (2001) (finding Congress meant to require procedural exhaustion regardless of the fit between a prisoner's prayer for relief and the administrative remedies possible). However, an inmate is only required to exhaust all available administrative remedies. Ross v. Blake, ___ U.S. ___, 136 S. Ct. 1850, 1856 (2016). If no pertinent relief is available through the prison's internal administrative process, then exhaustion is not required. Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005). In other words, "an inmate is required to exhaust those, but only those, grievance procedures that are 'capable of use' to obtain 'some relief for the action complained of.'" Ross, 136 S. Ct. at 1859 (quoting Booth v. Churner, 532 U.S. 731, 738 (2001)).
IV. Administrative Remedies Exhausted Due to Satisfaction
In the present case, Defendants argue Lee failed to appeal his Appeal Response to the second-level of review and thus, did not exhaust his administrative remedies. Lee counters he was not required to appeal the Appeal Response because he and Captain Lilienthal verbally negotiated a resolution that satisfied him. Ultimately, Defendants fail to meet their burden of showing Lee did not exhaust his administrative remedies.
Apart from being excused from exhaustion when a remedy is not "available," the Ninth Circuit also has held that an inmate's administrative remedies are deemed exhausted when an inmate is satisfied with the granted relief, or partial relief. Harvey v. Jordan, 605 F.3d 681, 685 (9th Cir. 2010). An inmate's satisfaction in the relief granted is not an exception to the exhaustion requirement; rather, it constitutes exhaustion. See Griffin v. Kelso, No. 2:10-cv-2525 MCE AC P, 2017 WL 2972483, at *7 (E.D. Cal. July 11, 2017) (noting that "the Ninth Circuit did not at any time refer to satisfaction as an exception to exhaustion" but instead stated that a satisfactory response exhausted the administrative process because the grievance was resolved).
In Harvey v. Jordan, the Ninth Circuit held the inmate "exhausted the administrative process when the prison officials purported to grant relief that resolved his due process grievance to his satisfaction." 605 F.3d 681, 686 (9th Cir. 2010). There, the inmate filed a grievance after not receiving a hearing within thirty days of getting "disciplinary charges," as prescribed by prison policy. Id. at 684. In his grievance the inmate complained that five months had passed without a hearing, and he needed a copy of the videotape of his alleged misconduct to prove the disciplinary charges were unfounded. Id. at 684-85. The prison responded to the inmate's grievance by granting his request and promising a hearing, as well as access to the videotape. Id. at 685. The inmate, satisfied with this response, did not appeal. Id.
However, the decision was labeled a partial grant because the inmate had also requested that in the alternative the charge be dismissed.
Five months passed and the prison still had not provided the inmate with the promised hearing or the videotape. Id. As a result, the inmate filed an appeal to complain he had not received the promised relief, but his appeal was deemed untimely and denied. Id. When the inmate brought suit in court, the defendants argued he had not exhausted his administrative remedies because he should have appealed the grievance response. Id. The defendants argued, in the alternative, the inmate "should have appealed the decision rejecting his 'reminder' grievance as untimely." Id. The Ninth Circuit rejected both arguments stating, "[a]n inmate has no obligation to appeal from a grant of relief or a partial grant that satisfies him, in order to exhaust his administrative remedies." Id. Because the inmate's "complaint had been resolved, or so he was led to believe . . . he was not required to appeal the favorable decision." Id. Further, the Ninth Circuit declined to find "that a prisoner has an obligation to appeal the rejection of a grievance that he has no obligation to file." Id.
Similarly, in Griffin v. Kelso, a case on remand from the Ninth Circuit, the court found the inmate was sufficiently "satisfied" with his promised relief and thus had exhausted his administrative remedies. No. 2:10-cv-2525 MCE AC P, 2017 WL 2972483, at *9 (E.D. Cal. July 11, 2017). The inmate in Griffin had filed a grievance, making a number of medical-related-requests, the principle one being a transfer to a medical facility. Id. at *5. After his grievance was partially granted and his request to move to a medical facility was promised, but never fulfilled by the prison, the inmate filed suit in court. Id. The defendants argued that the inmate could not claim he was satisfied because he had not received everything he requested. Id. at *7. The court, however, disagreed and reasoned that the defendants' "argument assume[d] that [a] plaintiff could only be satisfied by a grievance response if he got exactly what he asked for and that there was no possibility that an alternative form of relief could satisfy him." Id. at *8. Given the nature of the promised relief and the inmate's primary wish to be transferred to a medical facility, the court concluded he was sufficiently satisfied with the purported relief and thus had met the exhaustion requirement. Id. at *9.
V. Application
In response to Lee's argument, Defendants argue Lee "cannot escape his obligations under the PLRA to exhaust his claims by stating that he is satisfied with the relief he received where he obtained no relief." (Reply Supp. Def. Mot. Summ. J., ECF No. 50 ("Reply"), at 3.) Defendants cite three cases to support their argument, each is discussed in turn.
The first case Defendants cite is Oien v. Oregon, No. 2:17-cv-00978-HZ, 2018 WL 503259, at *1 (D. Or. Jan. 22, 2018), in which Judge Hernandez of this district concluded that the inmate had not exhausted his administrative remedies. However, Oien, bears little resemblance to the present case. In Oien, the court found that none of the grievances filed by the inmate were related to the complaints of sexual assault raised in his suit. Id. at *4. Further, every grievance filed by the inmate was returned to the inmate either because it lacked specific information, or it failed to mention a particular incident. Id. And, there was no evidence in the record to suggest the inmate ever took action to correct his deficient grievances. Id. The inmate argued he had exhausted his administrative remedies because he had called the prison Hotline, which he alleges resolved his complaints. Id. Specifically, the inmate asserted "there was no need to invoke the ODOC grievance procedure and file a grievance . . . because 'informal communications' and 'PREA Policy' were resolving the matter." Id. The defendants acknowledged that if the inmate's allegations were correct and his complaints had been resolved through the Hotline, then the inmate "might" have been excused from filing a grievance. Id. However, the court ultimately found there was no evidence the inmate ever called the Hotline to complain about the specific allegations, and the court dismissed his case for failing to exhaust administrative remedies. Id. at *5.
The second case relied upon by Defendants, Cleveland v. Lam, No. C 14-1369 CRB (PR), 2015 WL 628340, at *1 (N.D. Cal. Feb. 12, 2015), is equally unpersuasive. In that case, the court dismissed the suit because, although the inmate had properly exhausted his administrative remedies and appealed his grievance through the third, and final, level of appeal, the inmate filed his suit prematurely; the inmate filed suit before receiving a response to his third-level appeal, an automatic cause for dismissal. Id. at *3-4 (citing Vaden v. Summerhill, 449 F.3d 1047, 1051 (9th Cir. 2006). The inmate argued his suit was not premature because the grievance in question, along with his other filed grievances, were "partially granted at the first level of review." Id. at *4. Therefore, under Harvey, he was not obligated to appeal because he was satisfied with the medical examinations he received. Id. Comparing the inmate's requested relief to the partial relief he received, the court found the inmate never received what he truly sought — "namely removal from the high-risk medical classification" — therefore, the inmate could not claim he was satisfied. Id. The court explained, "Plaintiff's case is distinguishable from Harvey because at no point was Plaintiff led to believe that he would be removed from the high-risk medical classification and, as evidenced by his continued appeals . . ., at no point was Plaintiff satisfied by the partial grant of his appeals at the first level of review." Id.
The final case Defendants cite is Coles v. Cate, No. 2:10-cv-1996-KJN P, 2011 WL 6260372, at *1 (E.D. Cal. Dec. 15, 2011). In Coles, the inmate sought to convert to Judaism. Id. at *1. In the first level of review of his grievance, the inmate was informed inmates could not convert to Judaism while in prison. Id. at *3. The inmate appealed, and in his second-level of review response he was again informed he could not convert to Judaism, but the response stated, "you may continue to study and worship Judaism without fear of denial of your religious rights." Id. As a result, the inmate contended he was satisfied with the response and had no reason to pursue the grievance further. Id. The court disagreed, finding "the decision granted [the inmate] no concrete relief," thus he could not claim satisfaction. Id. at *5. The statement that he could continue to study and worship his faith merely informed the inmate of his "pre-existing right to freely exercise his chosen faith," and granted no substantive relief. Id. The court found he could not be excused from exhaustion simply by stating he was satisfied, when in reality the inmate did not receive anything close to the requested relief. Id. Therefore, the inmate was obligated to appeal the second-level response and because he had not, he failed to adequately exhaust his administrative remedies. Id.
At its core, Lee's lengthy Grievance and Appeal advances one main request — regaining his welding job or a comparable one. (Sobotta Decl., Attach. 7 at 7 (Grievance Appeal)); see also (Sobatto Decl., Attach 7, at 28, 29, 16, 31, 15, 34, 14, 13, 11, 10, 9) (Eleven Internal Communication Forms initiated by Lee requesting further information about his job placement, and inquiring about the availability of specific jobs to various departments.) To be eligible for the same job or a comparable one, Lee needed special clearance, or a "gate pass." Therefore, obtaining a gate pass would effectively help cure Lee's grievance.
In the Response, Captain Albert responded to Lee's grievance by informing him that he recommended to the gate pass committee that they should "wait a while longer before restoring [Lee's] gate pass." (Sobotta Decl., Attach. 7 at 17.) Unhappy with this result, Lee appealed the Response, reiterating that "[t]he problem can be solved by getting my job back OR an equivalent 14 pt. position . . . ." (Sobotta Decl., Attach. 7 at 2.) Defendants responded to the Appeal by writing the following:
Your situation was reviewed with the Gate Pass Committee. You have been given a work assignment that did not require a gate pass. You were moved by the Assignment Office to incentive housing approximately a week after being released from Segregation.(Sobotta Decl., Attach. 7 at 1.)
Thank you for bringing your concerns forward, however the actions taken by staff members are consistent with the Inmate Work Program / Gate Pass procedure. Captain Lilienthal advised you of his findings.
Had this response been the final form of communication exchanged between the parties, Lee might be deemed to have failed to exhaust all available administrative remedies, particularly because the partial relief granted in the Appeal Response did not grant Lee the relief he sought. However, Lee represents he subsequently conversed with Captain Lilienthal, and the Captain promised to help Lee obtain "at least an interview and a gate pass if [he] needed it." (Pl. Resp., at 2.) In his declaration, Lee describes in greater detail his conversation with Captain Lilienthal as follows:
3. It was agreed during my meeting with Cpt. Lilienthal that he would assist me in obtaining a gate pass to be able to go to the new work assignment if it was needed.(Lee Decl. at ¶ 3-7.)
4. It was agreed during my meeting with Cpt. Lilienthal that I would wait approximately a month for him to get on the gate pass comity [sic] before expecting him to fulfill his promises.
5. It was agreed during my meeting with Cpt. Lilienthal that I would not appeal my grievance further as acceptance of this Resolution.
6. After waiting the agreed month for Cpt. Lilienthal to be placed on the gate pass comity [sic], I informed him I would like a work assignment in the garment factory and would need a gate pass.
7. Cpt. Lilienthal ignored my request by written communication to get an interview at the garment factory and the return of my gate pass.
Lee states he thought the resolution proposed by Captain Lilienthal was "about as fair a resolution as [he] was likely to get," and, therefore, he was satisfied with the promised relief. (Pl. Resp., at 2.) In their reply brief, Defendants acknowledge Lee's alleged conversation with Captain Lilienthal, but provide no evidence to refute that the conversation took place or that Captain Lilienthal did not make the alleged promises. Instead, Defendants argue that even accepting Lee's allegation as true, Lee was not excused "from his obligation to exhaust his claims before filing this lawsuit," and cite the cases discussed previously to support their argument. (Reply at 2.)
The present case is distinguishable from the three cases upon which Defendants rely. First, unlike the inmate in Oien, the Grievance was not cancelled or rejected as deficient. (Sobotta Decl., Attach. 7 at 7.) Rather, Lee received a response to his grievance by Captain Albert on November 18, 2015. Next, in contrast to the inmates in Cleveland and Coles, Lee reasonably claims he was satisfied with the promised relief after his discussion with Captain Lilienthal. In Cleveland, the court dismissed the inmate's suit in part because he could not claim satisfaction when his main request to change his medical classification was denied. 2015 WL 628340, at *4. Finally, in Coles, the court deemed the defendants' remedy did not provide the inmate with "substantive relief," and "[a]bsent the granting of discrete substantive relief, plaintiff's satisfaction [was] irrelevant, and Harvey v. Jordan . . . d[id] not apply." 2011 WL 6260372, at *5.
Here, Lee's primary request — to obtain a job — was partially granted when Captain Lilienthal promised to help him find a job and, if necessary, obtain and a gate pass. Although Captain Lilienthal did not grant Lee's requested relief by handing him a job and a gate pass immediately, bis promises were unambiguous and provided Lee with substantive relief. See Griffin, 2017 WL 2972483, at *8 (noting that "the fact that the [promised relief] was not done 'immediately' does not mean that plaintiff was not satisfied with the relief he was purportedly promised") (citing Coats v. Fox, 481 Fed. App'x. 390, 391 (9th Cir. 2012). Whether Captain Lilienthal had the authority to make that promise or the power to see it through is irrelevant, and this is not a situation where Lee filed a "grievance in the vaguest possible terms, and after abandoning the appeal, claim[ed] he was satisfied with the response." See Coles, 2011 WL 6260372, at *5 (where the defendants argued that the inmate was just claiming to be satisfied to get around the exhaustion requirement). Lee's requested remedy was clear and his promised relief closely aligned with the remedy sought. Therefore, Lee was satisfied under the applicable standard.
Viewing the evidence in the light most favorable to Lee, the court finds Lee's case is more akin to Harvey and Griffin, than to the cases cited by Defendants. Similar to Harvey, Lee was promised relief that satisfied him. Lee's complaint regarding his job "had been resolved, or so he was led to believe [by Captain Lilienthal], and he was not required to appeal the favorable decision." Harvey, 605 F.3d at 685. In fact, according to Lee, he and Captain Lilienthal agreed that Lee would not appeal his grievance further, "as acceptance of [the] resolution." (Lee Decl., at ¶ 5.)
Therefore, Lee was not obligated to appeal the Appeal Response. See Harvey, 605 F.3d at 685 (stating that once prison officials purport to grant relief with which an inmate is satisfied, there is no obligation to appeal further; the exhaustion obligation has ended). Nor was Lee required to file a new grievance that Captain Lilienthal failed to keep his promise. See id. (rejecting the defendants' argument that the inmate had to appeal a grievance that he had no obligation to file in the first place). Thus, Lee properly brought this suit before the court and Defendants' motion for summary judgement should be denied.
Conclusion
Defendants failed to meet their burden to establish Lee did not adequately exhaust his administrative remedies. Therefore, Defendants' motion (ECF No. 30) for summary judgment should be DENIED.
SCHEDULING ORDER
The Court will refer its Findings and Recommendation to a district judge. Objections, if any, are due within fourteen (14) days. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within fourteen (14) days. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.
DATED this 19th day of April 2019.
/s/_________
JOHN V. ACOSTA
United States Magistrate Judge