Opinion
Case No. 3:20-cv-00146-CL
04-22-2021
GEORGE LEE MARSHALL, JR., Plaintiff, v. OREGON DEPARTMENT OF CORRECTIONS; KATE BROWN; STUART YOUNG; ROGER HAEFER; S. WATSON; DOES 1-10, Defendants.
FINDINGS AND RECOMMENDATION :
Plaintiff, an inmate in the custody of the Oregon Department of Corrections (ODOC), filed suit pursuant to 42 U.S.C. § 1983 and alleged retaliation and infringement of his right to religious freedom under the First Amendment and the Religious Land Use and Institutionalized Persons Act (RLUIPA). The Court previously dismissed plaintiff's claims against ODOC and Governor Kate Brown. The remaining defendants now move for summary judgment on grounds that plaintiff failed to exhaust available administrative remedies. For the reasons set forth below, defendants' motion should be granted.
DISCUSSION
Plaintiff alleges that defendants substantially burdened his religious beliefs by failing to provide meals that comply with the requirements of his faith. Cutter v. Wilkinson, 544 U.S. 709, 712 (2005); Shakur v. Schriro, 514 F.3d 878, 884-85 (9th Cir. 2008). Plaintiff also alleges that he received a misconduct report in retaliation for his complaints. Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). Defendants maintain that plaintiff failed to exhaust the prison grievance process for his claims.
To prevail on their motion for summary judgment, defendants must show there is no genuine dispute as to any material fact and they are entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) ("If undisputed evidence viewed in the light most favorable to the prisoner shows a failure to exhaust, a defendant is entitled to summary judgment under Rule 56."). The court must construe the evidence and draw all reasonable inferences in the light most favorable to plaintiff. Torres v. City of Madera, 648 F.3d 1119, 1123 (9th Cir. 2011).
Under the Prison Litigation Reform Act (PLRA), inmates must exhaust all available administrative remedies before filing a federal action to redress prison conditions or incidents. See 42 U.S.C § 1997e(a) ("No 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."). The exhaustion requirement is mandatory and requires compliance with both procedural and substantive elements of the prison administrative process. Woodford v. Ngo, 548 U.S. 81, 85, 90 (2006). If the defendant shows that the inmate did not exhaust an available administrative remedy, "the burden shifts to the prisoner 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." Albino, 747 F.3d at 1172; see also Sapp v. Kimbrell, 623 F.3d 813, 822 (9th Cir. 2010) (the PLRA does not require exhaustion when administrative remedies are "effectively unavailable").
ODOC employs a three-step grievance and appeal process. Or. Admin. R. 291-109-0100 et seq. Generally, the inmate must file a grievance within fourteen days of the alleged condition or incident. Id. 291-109-205(1). If a grievance is accepted, the inmate may appeal a response to the grievance within fourteen calendar days. Id. 291-109-205(3). A grievance that is returned to the inmate on procedural grounds may not be appealed. Instead, the inmate may resubmit the grievance within fourteen days if the procedural errors can be corrected. Id. 291-109-225(2). If an inmate's appeal to a grievance response is denied, the inmate may file a second appeal within fourteen days of the date the denial was sent to the inmate. Id. 291-109-205(5). A decision following a second appeal is final and not subject to further review. ODOC employs a similar administrative process for discrimination complaints. Id. 291-006-0050.
In Grievance No. CCIC_2019_11_014, received on November 19, 2019, plaintiff complained that he was not provided "with a kosher/Halal diet" at the Coffee Creek Correctional Facility (CCCF). Geddes Decl. Ex. 10 at 2. The grievance was accepted and a response was sent to plaintiff on December 4, 2019. Id. Ex. 10 at 3-4. Plaintiff did not appeal the response Id. ¶ 31.
In Grievance CCIC_2019 12_004, received on December 2, 2019, plaintiff complained that "the warden of CCCF ha[s] promulgated a system with policies, pattern, practices, and/or conduct of depriving Muslim inmates a religious diet" and cited November 15, 2019 as the date of the relevant incident. Id. Ex. 10 at 24. Plaintiff's grievance was denied because it was not received within fourteen days and inmates may not submit grievances while representing or acting as a spokesperson for other inmates. Geddes Decl. ¶ 31 & Ex. 10 at 23; Or. Admin. R. 291-109-0210(4)(i). Plaintiff did not resubmit this grievance or explain why it was not received within fourteen days of the incident.
In Grievance No. CCIC_2019 12_005, also received on December 2, 2019, plaintiff complained that the vegetarian meals provided by CCCF did not meet the requirements of Muslim inmates. Id. Ex. 10 at 28-29. Plaintiff's grievance was denied because it was a group grievance and duplicative of previous grievances. Id. Ex. 10, p. 27. Plaintiff did not resubmit this grievance with corrections. Id. ¶ 31.
In Grievance No. CCIC_2019_12_014, received on December 10, 2019, plaintiff complained that Chaplain Watson was "substantially burdening Muslim religious beliefs" and engaging in a "conspiracy to deprive Muslims of their constitutional rights" by consulting with an Iman who did not accurately represent Muslim beliefs and practices. Id. Ex. 10 at 17-21. The grievance was denied as a group grievance, and plaintiff did not resubmit it with corrections. Id. ¶ 31 & Ex. 10 at 16.
In Grievance No. PRCF 2019 12_004, received on December 23, 2019, plaintiff complained that he had been denied a "kosher/halal diet" at the Powder Creek Correctional Facility. Geddes Decl. Ex. 10 at 34-35. On January 28, 2020, a response was sent to plaintiff, and he did not appeal the response. Id. ¶ 31 & Ex. 10 at 32.
In Discrimination Complaint No. PRCF 2019 12_005, also received on December 23, 2019, plaintiff complained about Chaplain Haefer's explanation of ODOC's religious dietary accommodations and alleged that Chaplain Haefer issued a misconduct report in retaliation for plaintiff's grievances complaint about his "religious diet." Id. ¶ 31 & Ex. 10 at 40. Plaintiff's discrimination complaint was denied because it did not allege a pattern of bias and his dietary complaints were addressed though Grievance PRCF 2019 12_004. Id. Ex. 10 at 39.
In Grievance No. PRCF 2019_12_009, received on December 30, 2019, plaintiff complained that inmate-led Muslim services were not allowed without staff present and that Chaplain Haefer retaliated against him. Id. Ex. 10 at 43-44. Plaintiff's grievance was denied because inmates cannot submit more than four initial grievances and discrimination complaints per calendar month, and part of plaintiff's complaint was duplicative of another grievance. Id. ¶ 31 & Ex. 10 at 42; Or. Admin. R. 291-109-0215(2). Plaintiff attempted to resubmit this grievance, without corrections, on January 26, 2020, more than fourteen days after the denial was sent to him. Or. Admin. R. 291-109-225(2). Geddes Decl. Ex. 10 at 57-60. Further, plaintiff resubmitted the grievance after he filed suit in this action, and inmates may not grieve issues pursued in pending litigation. Id. 291-109-0210(4)(h).
In sum, of his accepted grievances, plaintiff did not appeal any of the responses to complete the grievance process. Of his denied grievances and discrimination complaint, plaintiff did not resubmit them in an attempt to correct the noted deficiencies. With respect to Grievance No. PRCF 2019_12_009, I recognize 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. In this case, however, plaintiff did not attempt to resubmit his grievance within the fourteen day deadline or prior to filing suit.
Accordingly, the record reflects that plaintiff did not complete the appeals process for his grievances and discrimination complaint. Further, plaintiff did not respond to defendants' motion or present evidence that the administrative grievance process was effectively unavailable to him. Based on this record, plaintiff did not properly exhaust his administrative remedies, and his claims are barred under the PLRA.
CONCLUSION
Defendant's Motion for Summary Judgment (ECF No. 38) should be GRANTED and this action should be DISMISSED without prejudice.
This Findings and Recommendation will be referred to a district judge. Objections, if any, are due within (14) days from service of the Findings and Recommendation. If objections are filed, any response is due fourteen (14) days after being served with a copy of the objections. The parties are advised that the failure to file objections within the specified time may waive the right to appeal the District Court’s final order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
DATED this 22 day of April, 2021.
/s/_________
MARK D. CLARKE
United States Magistrate Judge