Opinion
6:18-cv-00103-YY
09-12-2022
BRADLEY W. MONICAL, Plaintiff, v. MARION COUNTY, et al., Defendants.
FINDINGS AND RECOMMENDATIONS
Youlee Yim You United States Magistrate Judge
FINDINGS
Pro se plaintiff Bradley W. Monical is currently incarcerated at the Oregon State Penitentiary and brings this civil rights action pursuant to 42 U.S.C. § 1983 for constitutional violations that allegedly occurred during his incarceration at the Marion County Jail (“MCJ”) between December 16, 2015, and November 23, 2016. See Third Am. Compl. 17, ECF 58; Davis Decl. ¶ 4, ECF 134. Defendants are Marion County, Sheriff Jason Myers (retired), Jail Commander Tad Larson, Deputy Straus, Deputy Dunnbarr, Deputy Frieze, Deputy McGowan, Deputy Knospe, and Jail Nurse Cindy Gage (“County Defendants”), and Keefe Commissary Network LLC (“Keefe Commissary”).
Plaintiff alleges that while he was at MCJ, the County Defendants denied him access to the law library, did not distribute shoes for exercise and did not provide adequate exercise times, and that the shoes the County Defendants did distribute were inadequate and caused him to slip and fall on some stairs. Third Am. Compl. 16-30, ECF 58. Plaintiff also alleges that the County Defendants provided inadequate medical care for the injuries he suffered from the fall, and that the County Defendants failed to protect him from an assault. Id. at 30-37. Finally, plaintiff alleges that the County Defendants wrongly prevented him from communicating with his children, and that defendant Keefe Commissary and the County Defendants violated his First Amendment Rights by charging too much for certain postage. Id. at 37-42.
All parties have filed motions for summary judgment. Pl.'s Mot. Partial Summ. J., ECF 122; Keefe Mot. Summ. J., ECF 136; County Defs. Mot. Summ. J., ECF 137. The County Defendants and Keefe Commissary both assert the affirmative defense that plaintiff failed to exhaust his administrative remedies under the Prisoner Litigation Reform Act (“PLRA”). Keefe Mot. Summ. J. 5-7, ECF 136; County Defs. Mot. Summ. J. 11-13, ECF 137. Plaintiff has responded that he did exhaust the claim regarding contact with his children, and that his failure to exhaust administrative remedies related to his other claims should be excused because the administrative process was made effectively unavailable to him due to the fact that, among other things, deputies often refused to give out grievance forms when requested. Resp. 7-10, ECF 161.
After determining that there were genuine issues of material fact regarding whether plaintiff exhausted his administrative remedies, the court held an evidentiary hearing on June 6, 2022. ECF 200. Based on the testimony and other evidence presented at the hearing, as well as the other evidence in the record, Keefe Commissary's motion for summary judgment (ECF 136) and the County Defendants' motion for summary judgment (ECF 137) should be granted because plaintiff failed to exhaust the available administrative remedies for the claims he asserts in this suit:
(1) Plaintiff failed to file a grievance for his claims regarding: the law library; the conditions of confinement including the failure to issue exercise shoes, the lack of exercise opportunities, and the adequacy or safety of the issued shower shoes; the alleged failure to protect from assault; the alleged failure to provide adequate medical care; and the claim regarding nonlegal postage rates charged by Keefe Commissary;
(2) Plaintiff did not establish that the existing administrative process at MCJ was “effectively unavailable” for any of these claims because the testimony and other evidence that plaintiff presented at the hearing regarding the alleged refusal by deputies at MCJ to distribute grievance forms or to retaliate against inmates who filed grievances was inconsistent, unspecific, and contradicted by contemporaneous documentary evidence; and
(3) Plaintiff failed to complete the final step in the administrative appeal regarding the issue of communicating with his children, and thus also failed to properly exhaust that claim, and none of the evidence he presented at the hearing was sufficient to establish that he completed the final step in the administrative process by writing a separate appeal to the jail commander.
Because defendants' motions for summary judgment should be granted on the above grounds, plaintiff's motion for partial summary judgment (ECF 122) should accordingly be denied as moot.
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 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. Discussion
As noted, the County Defendants and Keefe Commissary both contend that plaintiff's claims are barred under the PLRA because he failed to exhaust his administrative remedies prior to filing suit. County Defs. Mot. Summ. J. 11-13, ECF 137; Keefe Mot. Summ. J. 5-7, ECF 136. Plaintiff maintains that he fully exhausted one claim related to visitation rights with his children. He also asserts that that his failure to exhaust his other claims should be excused because the County Defendants had a practice of refusing to distribute grievance forms and retaliating against inmates who filed grievances, and the grievance process could not provide an appropriate remedy regarding Keefe Commissary because the postage rates were set by contract with the County. Resp. 13-19, ECF 161.
A. Exhaustion Under the PLRA
Under the PLRA, “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 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)). A prisoner's failure to exhaust administrative remedies may, however, be excused “when circumstances render administrative remedies ‘effectively unavailable.' ” Sapp v. Kimbrell, 623 F.3d 813, 822 (9th Cir. 2010) (per curiam) (quoting Nunez v. Duncan, 591 F.3d 1217, 1226 (9th Cir. 2010)). “To be available, a remedy must be available as a practical matter; it must be capable of use; at hand.” Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015) (internal quotation marks and citation omitted).
Before further explaining the contours of the PLRA exhaustion requirement, it is necessary to dispense with one of plaintiff's arguments raised at the evidentiary hearing-that because he is no longer in custody at MCJ, he no longer needs to satisfy the PLRA exhaustion requirement as to any claims against Marion County. Obj. Order 175 at 5-12, ECF 177. Plaintiff cites numerous cases holding that the PLRA exhaustion requirement does not apply once a prisoner is no longer in custody. Id. (citing, among others, Jackson v. Fong, 870 F.3d 928, 936 (9th Cir. 2017) (“[O]nce a prisoner is no longer in custody, there is nothing to gain by forcing the prisoner through the administrative process.”)).
The controlling statute requires that every “prisoner” must exhaust administrative remedies before filing a lawsuit. 42 U.S.C. ¶ 1997e(a). “The language of the statute is plain and unambiguous,” Talamantes v. Leyva, 575 F.3d 1021, 1023 (9th Cir. 2009), and defines a “prisoner” as
[A]ny person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program.42 U.S.C. § 1997e(h) (emphasis added). The statute makes no distinction as to where a person must be incarcerated nor does it allow for plaintiff's theory here-that because he moved to another facility, the exhaustion requirement for claims arising at the former facility no longer applies. There is no dispute that plaintiff was moved from MCJ to the Oregon Department of Corrections, and is currently incarcerated at Oregon State Prison. Thus, the exhaustion requirement applies to his present claims arising from his incarceration at MCJ (and for that matter, any future claims he might bring while he remains “incarcerated or detained”). See Porter v. Nussle, 534 U.S. 516, 520 (2002) (“[Section] 1997e(a)'s exhaustion requirement applies to all prisoners seeking redress for prison circumstances or occurrences”).
Moreover, plaintiff's transfer to another facility did not render the administrative process effectively unavailable to him. As discussed below, plaintiff had the opportunity to grieve before he was transferred and he in fact filed a grievance one day before his transfer. Also, plaintiff has presented no evidence that his transfer to another institution precluded him from appealing to the jail commander at MCJ, a necessary step in the grievance procedure. The inmate handbook states that the appeal to the jail commander must merely be in writing-no special form is necessary- and there is no evidence that plaintiff could not have sent a written appeal from the ODOC facility to which he was transferred. Davis Decl., Ex. C at 13, ECF 134.
Having determined that exhaustion applies to plaintiff's claims, the next step is to employ the burden-shifting framework used 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, 775 F.3d at 1191. 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 “by showing that the local remedies were ineffective, unobtainable, unduly prolonged, inadequate, or obviously futile.” Id. (internal quotation marks and citation omitted). 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 1162, 1166, 1172 (9th Cir. 2014).
A motion for summary judgment is the proper means to raise exhaustion if the “defendant will have to present probative evidence” regarding the plaintiff's failure to exhaust. Id. at 1169 (overruling previous “unenumerated motion under Rule 12(b)” procedure). But if material facts are in dispute, the court “may decide disputed questions of fact in a preliminary proceeding,” which should most often take the form of an evidentiary hearing. Id. at 1168; see also Jackson v.Gorton, No. 3:19-cv-00427-YY, 2020 WL 6832066, at *4 (D. Or. Apr. 23, 2020), report and recommendation adopted, No. 3:19-cv-00427-YY, 2020 WL 6828740 (D. Or. Nov. 19, 2020) (collecting cases). One of the purposes of an evidentiary hearing is to “enabl[e] the finder of fact to see the witness's physical reactions to questions, to assess the witness's demeanor, and to hear the tone of the witness's voice.” United States v. Mejia, 69 F.3d 309, 315 (9th Cir. 1995). All of this assists the finder of fact, here the court, in evaluating the witness's credibility. Id.; Albino, 747 F.3d at 1170.
See Resp. 9, ECF 161 (asserting that defendants should have raised failure to exhaust via “FRCP 12(b)[.]”)
B. Administrative Process at MCJ
MCJ has a grievance procedure for inmates to “attempt to resolve issues and disputes.” Davis Decl., Ex. C at 13, ECF 134. Each inmate lodged at MCJ receives a copy of the Marion County Sheriff's Office Inmate Handbook (“Inmate Handbook”), which contains a description of the grievance procedure. Id. ¶¶ 8-9. The Inmate Handbook provides the “following . . . examples of grievable issues: telephone, mail, and visiting procedures; general classification procedure; religious practices; food service, PREA; conditions of confinement; participation in inmate programs; medical care; and inmate trust accounts[.]” Id., Ex. C at 13 (capitalization and other formatting modified).
Each inmate grievance form has a section titled “Reason for Grievance (check one)” that lists most of the same issues, and also includes the words: “other (be specific).” Id., Ex. C at 13, Ex. B at 1-3, 6. The Inmate Handbook explains the process inmates may use to file a grievance and, if necessary, appeal it up the chain of command. Id., Ex. C at 13. The Inmate Handbook expressly warns that “[i]If you want to have your grievance resolved, you must follow each step of the grievance procedure,” and that the “[f]ailure to follow the grievance procedure may void your grievance and cause it to be dismissed.” Id.
The grievance process requires the following steps:
1) Attempt to verbally resolve the problem with a deputy.
2) If you cannot resolve the issue with a deputy, or you have written proof that you tried to resolve an issue (like a denied inmate request form), you may send a grievance with a brief description to the deputy or appropriate party.
3) If you cannot resolve the issue with the deputy or appropriate party, and have written proof that you have tried to resolve the issue (like an unresolved inmate grievance form from a deputy), you may deny the proposed resolution.
4) If you cannot resolve the issue at the next highest level, and have written proof that you tried to resolve the issue, it will be forwarded to the next in command.
5) If your grievance has not been resolved after the administrative review, you may appeal the grievance to the Jail Commander. The appeal must be in writing, and on a separate document from the original grievance. A copy of
the grievance and the written request for appeal will be forwarded to the Jail Commander for review.Id. The grievance form also instructs inmates to “[f]ollow the rules in the Inmate Handbook regarding the facility's grievance procedures.” Id., Ex. B at 1- 3, 6.
C. Plaintiff's Grievances and Current Claims
Plaintiff filed four grievances while in custody at MCJ. Id. The first grievance concerns the jail's enforcement of an order from Eastern Oregon Correctional Institution (“EOCI”) prohibiting plaintiff from contacting his children. Id. at 1. The second grievance complains of a leaky toilet and the smell of raw sewage. Id. at 2. The third grievance is regarding the cost of postage for manilla envelopes, Id. at 3, and the fourth is a request for disinfectant to clean nail clippers. Id. at 6. According to the County Defendants, none of plaintiff's grievances were “pursued past the level of Administrator's Review, which is the second to last step in the Jail's grievance process” because plaintiff “did not appeal any of his grievances to the Jail Commander.” Id. ¶¶ 15-16.
Plaintiff brings five claims in this case. Only the grievance he filed regarding contact with his children is relevant to any of his present claims. In Claim One, plaintiff alleges violations of his right to access the courts. He claims that the law library was inadequate, nobody trained in the law was available to provide him with legal assistance, and he was denied physical access to the law library. Third. Am. Compl. 16-24, ECF 58. In Claim Two, plaintiff alleges constitutionally deficient conditions of confinement, including the lack of outdoor exercise, the lack of adequate footwear, and the shower sandals he was provided led him to slip and fall on the stairs in his cell block. Id. at 24-30. In Claim Three, plaintiff alleges he was assaulted by officers on November 21, 2016, and that other officers failed to protect him from the assault. Id. at 30-33. In Claim Four, plaintiff alleges the County Defendants neglected his serious medical needs by not providing adequate medical care related to his slip-and-fall on the stairs. Id. At 33-37. Claim Five has two parts. First, plaintiff alleges the County Defendants ordered him not to contact his children in violation of his First Amendment right to freedom of association. Id. at 37-39. Plaintiff filed a grievance on this issue, and as explained in more detail later, plaintiff asserts that he did in fact exhaust the administrative appeals regarding this claim. Resp. 8, ECF 161; Davis Decl. Ex. B at 1, ECF 134. Second, plaintiff alleges Keefe Commissary charged excessive postage for non-legal mail in violation of his First Amendment right to freedom of speech. Third Am. Compl. 39-42, ECF 58. Plaintiff asserts the issue of excessive postage for legal mail, the subject of the third grievance, is separate from the issue of excessive postage for non-legal mail, the subject of his claim against the Keefe Commissary. See Resp. 15, ECF 161.
Plaintiff's motion to strike (ECF 161) the County Defendants' description of plaintiff's attempted escape from MCJ, which led to the alleged assault by officers, was denied in a separate order. See ECF 203.
D. Claims One Through Four
There is no dispute that plaintiff did not file a grievance regarding: access to the law library; the conditions of confinement specific to the issuance of exercise shoes, availability of exercise, or the adequacy of the issued shower shoes; the alleged failure to protect him from assault; or the allegedly deficient medical care regarding his back. Id. at 7-10. Thus, defendants have carried their initial burden to prove that there was an available administrative remedy that plaintiff did not exhaust for these issues. Williams, 775 F.3d at 1191.
Plaintiff's fifth claim regarding contact with his children and the issue regarding non-legal mail through defendant Keefe Commissary is addressed separately below.
Next, the burden shifts to 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 “by showing that the local remedies were ineffective, unobtainable, unduly prolonged, inadequate, or obviously futile.” Id. (internal quotation marks and citation omitted).
Plaintiff alleges “no issue was grievable unless the deputy on duty said it was grievable and gave out the forms,” in various iterations throughout the Third Amended Complaint, the summary judgment briefing, and his declarations. E.g., Third Am. Compl. 9, ECF 58 (“only deputies on duty decide what can be grieved and only hand out forms if they deemed any issue qualified as grievable”); Resp. 9, ECF 161 (“Defendants remaining claims of non exhausted grievances is unfounded as they did not and do not issue grievances for issues not listed in the inmate handbook.”); Id. at 11 (“Plaintiff submitted many kites for [law library] access but was always denied because he had a registered attorney. Defendant's only granted access when plaintiff had fired his attorney.”).
Plaintiff also submitted a “combined declaration” signed by a group of inmates housed at MCJ at various times, which also states that deputies controlled the distribution of grievance forms and would not distribute forms for “non-grievable” issues. Monical Decl., Ex 5 at 4, ECF 162 (“If an issue is not specifically written in the inmate handbook as a grievable issue the deputy will not give you a grievance form.”). Several other individuals who served time at MCJ at some point submitted individual declarations echoing the same general theme. E.g., Monical Decl., Ex. 6 (Wood Decl.) ¶ 18, ECF 162 (“If my grieved issue was not one listed in the inmate handbook, I would not be given a grievance form.”); Monical Decl. Ex. 11 (Smith Decl.) ¶ 17, ECF 162 (“[T]he officer in the unit controlled all access to both kytes and grievance forms.... If they did not agree you're your issue was either one addressed through a kyte or grievance they would not allow you a form[.]”).
Plaintiff's declaration and the combined declaration created an issue of fact about whether the administrative remedy was “effectively unavailable” to plaintiff regarding his present claims. To resolve the factual dispute, an evidentiary hearing was held on June 7, 2022. Plaintiff testified, and called as a witness Daniel Thompson, who was incarcerated with plaintiff at MCJ during the relevant times. Davis Decl. ¶ 16; Ex. U at 1, ECF 190 (showing Thompson's time at MCJ). Defendants called Sergeants Davis and Peterson, who had personal knowledge about the grievance procedure at MCJ.
Regarding the specific issue of physical access to the law library or its materials, plaintiff testified as follows:
None of the parties ordered an official transcript of the evidentiary hearing. The court reporter has verified the accuracy of the excerpted testimony provided in this Findings and Recommendations.
So when I was at the jail, we were immediately locked down for pretty much four or five days a week all day long. All meals are eaten in the cell regardless. So, immediately, I had asked about receiving the law library materials, and they didn't provide law library materials within -- within the jail units or cells. And being on lockdown, they didn't provide any access to the legal library when I had an assigned attorney.
And I was given an inmate handbook upon arrival. Everybody watches a video upon arrival and then given a handbook at the same time. So that's not a question.
When I asked for grievance forms about these things, though, I was simply told over and over and over again, by the officers on duty, that if it wasn't in the grievance procedure and in the form, that I could not grieve it. There was no other options. You -- I couldn't get a kyte from the officer unless I asked what I was kyting for or who I was kyting for. Everything was in carbon copy form so they just didn't allow forms to be picked up by inmates.
...
So over the time I was there, I had grieved what I was allowed to grieve.On cross-examination, counsel for the County Defendants asked plaintiff:
Q. And just to be clear, you never submitted a grievance, whether on a grievance form or any other method, about your -- the alleged deficiencies for the law
library and access to the courts. Isn't that true?
A. I was not allowed to file a grievance.
As for plaintiff's conditions of confinement claim, which encompasses his request for exercise shoes, the denial of exercise time, and the adequacy of the shower shoes plaintiff was given, plaintiff testified as follows:
So over the time I was there, I had grieved what I was allowed to grieve. I would ask for grievance of shoes. I had not -- I had not exercised or been out of my cell for almost two and a half, three years prior to arriving at the Marion County Jail. So being out of my cell, I could barely walk. And so I -- it was very important to me at that time to be able to exercise and -- at least at some point, but you couldn't -- policy did not allow -- as you heard Mr. Thompson, you could not exercise inside the unit. The choice for exercise was in the morning 30 minutes, and you either had to shave and shower or get outdoor rec for that 30 minutes. So even then, it was five and a half hours maximum a week when we were out of the cells.
At any rate, when I asked to grieve those things, the officers just said those things are policy. There is no policy for exercise, period, within the inmate handbook. So those things were not grievable. They would not give a grievance form for those type of issues. If it wasn't listed -- it may say “examples of,” but that's not what the deputies on staff would do. They went strictly by this grievance procedure.
So over the time there, I -- like I said, I -- the four grievances that I grieved, I -those were the ones that were given to me and allowed.On cross-examination, though, plaintiff testified as follows:
Q. And you don't dispute that you never submitted a grievance regarding your claim about alleged inadequacies of outdoor exercise or lack of adequate footwear and a slip-and-fall incident. Isn't that true?
A. I was not aware that I was required to file a grievance on those issues.Plaintiff's testimony that he “was not aware” that he had to file a grievance on these issues conflicts with his other testimony that he asked for but was denied a grievance regarding footwear or the adequacy of exercise opportunities. Moreover, plaintiff's testimony that he “was not aware” that he needed to file a grievance for these issues is not credible. Plaintiff does not dispute that he was given a copy of the Inmate Handbook, or that he was generally familiar with the Inmate Handbook and the grievance procedure described in it. And plaintiff filed numerous grievances and kytes on other issues. Davis Decl. Ex. B at 1-6, ECF 134; Monical Decl. Ex. 17 at 1-4; Id., Ex. 18 at 1, ECF 162.
On plaintiff's third and fourth claims, which allege that the County Defendants failed to protect him from being assaulted and neglected his serious medical needs, plaintiff does not plead, much less prove, that he ever attempted to grieve these issues but was denied access to grievance forms or kytes. Nor did he testify at the evidentiary hearing that he requested grievance forms regarding the assault or medical care. That alone is sufficient to reject plaintiff's argument that the grievance procedure was “effectively unavailable” to him for these issues. See Sapp, 623 F.3d at 824 (rejecting inmate's argument that he should be excused from the exhaustion requirement because “he never even attempted to file any such grievance,” and thus “he could not have reasonably believed that he could not pursue the administrative appeals process any further”).
But other testimony and evidence from the hearing relevant to claims three and four is critically important in evaluating the remainder of plaintiff's efforts to exhaust remedies. On cross-examination, plaintiff testified as follows:
Q. You don't dispute that you never submitted a grievance regarding your claim about an alleged assault and an alleged failure to protect claim. Isn't that true?
A. That happened the two days before I left custody. So, no, I didn't have a chance to. They wouldn't give me a grievance form when I was in the hole for a transfer.
Q. You don't dispute that you never submitted a grievance regarding your claim about alleged indifference to your medical needs. Isn't that true?
A. No. I never filed anything about a medical grievance.Documentary evidence produced at the hearing and submitted into the record directly contradicts plaintiff's testimony that he was denied a grievance form while awaiting transfer, and further undermines his testimony that deputies did not issue grievance forms when requested on issues similar to the ones plaintiff seeks to litigate here. At the beginning of the hearing, counsel for the County Defendants stated that officers at MCJ had uncovered another grievance that plaintiff filed on November 22, 2016, while incarcerated there. Notably, the assault that plaintiff alleges the County Defendants failed to protect him from occurred on November 21, 2016, and plaintiff was transferred out of MCJ and into state custody on November 23, 2016. Davis Decl. ¶ 4, ECF 134; Ramsey Decl., Ex. J at 1, ECF 135. On the November 22, 2016 grievance, plaintiff wrote:
Being punished above and beyond standard TX being allowed only 1 blanket instead of 2, a smock blanket does not equal 2 wool blankets, no shower shoes, no eyeglass no towel to dry face/hands, food was spit in 2x, no legal paperwork.Monical Decl. Ex. 1, ECF 196 (punctuation and abbreviations in original).
The November 22, 2016 grievance was admitted as an exhibit offered in connection with Plaintiff's motion (ECF 195) for leave to submit updated information, which was granted in part and denied in part in a separate order. See ECF 204.
This contemporary documentary evidence directly contradicts plaintiff's testimony that defendants “wouldn't give [him] a grievance form when [he] was in the hole for a transfer.” Defendants gave plaintiff a grievance form one day before he was transferred, and on that form, he did not mention that deputies had “failed to protect” him from assault on the day before. See Third Am. Compl. 30-33, ECF 58. Nor did he complain that the County Defendants failed to provide him sufficient medical care in the wake of his slip-and-fall incident that occurred on November 1, 2016, which plaintiff alleges caused him to “live in constant excruciating pain for weeks on end.” Id. at 36. Importantly, on the November 22, 2016 grievance, plaintiff addressed the lack of shower shoes, and access to his legal papers, all of which are topically similar to, though not factually the same as, the issues for which plaintiff claims deputies would not issue a grievance. This is a serious blow to plaintiff's credibility regarding his testimony about the availability of grievance forms.
The various topics that the November 22, 2016 grievance contained and its timing at the end of plaintiff's incarceration at MCJ are also significantly important in evaluating plaintiff's credibility. Plaintiff complained about the lack of shower shoes and that he was missing his legal papers, but did not mention the lack of access to the library or the lack of exercise opportunities, the inadequacy of the now-missing shower shoes, or the lack of access to the library. The opportunity was there, and yet plaintiff makes no mention of these apparently ongoing issues. And on the November 22, 2016 grievance, plaintiff complained about the lack of shower shoes, which further undermines the credibility of his testimony that he was not aware he had to file a grievance about footwear.
Furthermore, the timing of this grievance right before plaintiff's transfer out of MCJ, and plaintiff's failure to raise any of the claims at issue in this suit, undercuts plaintiff's argument raised at the hearing that he should be excused from the grievance process because he did not have any way of asserting a grievance at MCJ after he was transferred out of the facility. The November 22, 2016 grievance was an adequate opportunity to raise his complaints, and the failure to do so forecloses plaintiff's arguments that the system was not available to him. Furthermore, it is undisputed that plaintiff did in fact receive and file four other grievances during his time at MCJ. See Wagoner v. Lemmon, 778 F.3d 586, 591 (7th Cir. 2015) (“The fact that [the prisoner] was able to exhaust two of his claims offers a reason to reject his claim that he was prevented from exhausting his other six.”). Plaintiff never raised the allegedly ongoing and widespread issue of lack of access to grievance forms in any of his other grievances or kytes. Davis Decl., Ex. B at 1-3, 6, ECF 134; Ramsey Decl., Ex. I at 1-10, ECF 135. This disconnect between what plaintiff actually wrote in his various grievance forms and kytes, and what he now claims happened at MCJ further undermines his credibility.
Other contemporaneous documents further call into question plaintiff's claim that he did not grieve the issues in this suit because deputies refused to distribute grievance forms or kytes. Resp. 11, ECF 161 (“Plaintiff submitted many kites for [law library] access but was always denied because he had a registered attorney. Defendant's only granted access when plaintiff had fired his attorney.”). Plaintiff requested physical access to the law library through a kyte on August 30, 2016. Ramsey Decl., Ex. I at 8, ECF 135. He was granted access the following day. Id. Plaintiff also requested and received materials from the law library and other information related to his various cases using numerous kytes. Id. at 1-10. Nowhere in these kytes does plaintiff mention any problem with previous access to the law library or that he was denied a grievance form regarding law library access. Even further damaging to plaintiff's credibility is plaintiff's testimony on cross-examination that he communicated in writing with the jail commander on issues that perhaps were outside of plaintiff's perceived scope of “grievable issues” and that implicated important inmate rights:
Q: [I]sn't it true that you wrote a letter to the jail commander, dated November 6, 2016, to give notice that you were preparing to file suit against Marion County Jail for discrimination of classified inmates with privileges in violations -- or alleged violations of ORS regarding inmate workers?
A. I don't recall the letter, specifically; but, yeah, the jail was violating state law by having inmate workers who had Measure 11 charges, who couldn't get good time, and having them work for free. So that was a violation of state law. So I just wrote a notification of that.
Q. To the jail commander; is that right?
A. I believe so.
Q. So you -- so if I understand you correctly, you had ability to write letters to complain about alleged nuances -- or nuanced instances of discrimination, but you never wrote to the jail commander that you were being denied grievance forms when requested. Isn't that true?
A. Yeah. I didn't know it was an option.Plaintiff did not mention that he was denied access to grievance forms in his letter to the commander or write to the commander separately on this issue. The absence of any complaint about the denial of grievance forms from any of the contemporaneous documents, if not direct evidence regarding the alleged practice, further supports the conclusion that plaintiff's after-the-fact testimony regarding his allegedly thwarted efforts to use the grievance procedure is not credible.
There is no other evidence in record that can rehabilitate plaintiff's credibility or otherwise prove that the administrative remedies at MCJ were not available to him for the claims in this suit. Daniel Thompson, who was an inmate at the Marion County Jail at the same time and in the same housing unit as plaintiff, testified that he recalled plaintiff asking about a grievance form related to the law library and that officers refused to give him a form:
Q. Did you ever witness me ask for grievance forms?
A. Yes.
Q. And do you recall exactly what I was asking for?
A. No. I just remember they wouldn't give you any.
Q. Okay. Do you recall hearing maybe me asking about the law
library?
A. Yes.
Q. How about grievance for a denial of being given a grievance form?
A: Well, yeah.This testimony elicited through a strongly leading question is not sufficient to rehabilitate plaintiff's severely damaged credibility on his allegation that he asked for but was denied grievance forms on his present claims. See Holland v. United States, No. CIV. S-83-1362-EJG, 1988 WL 179793, at *1 (E.D. Cal. Jan. 12, 1988), aff'd, 873 F.2d 1321 (9th Cir. 1989) (finding that answers to leading questions “further undercut” the witness's credibility); In reVanschoiack, 356 B.R. 56, 65 (Bankr. D. Idaho 2006) (holding that “evaluation of credibility was impacted by . . . consistently leading questions,” leaving “little testimony for the Court to evaluate”).
The combined declaration from other inmates is similarly not helpful in determining whether plaintiff attempted to grieve his complaints that are issue here. The assertions in the combined declaration, which appears to be written in plaintiff's hand, as well as plaintiff's testimony at times (“At any rate, when I asked to grieve those things, the officers just said those things are policy. There is no policy for exercise, period, with the inmate handbook. So those things were not grievable.”), is so vague and unspecific that it is unclear as to whether inmates actually requested forms from deputies and were refused, or simply believed that deputies would not distribute forms for issues not specifically listed in the Inmate Handbook or on the grievance form. See Monical Decl., Ex 5 at 4, ECF 162 (“If an issue is not specifically written in the inmate handbook as a grievable issue the deputy will not give you a grievance form.”). Even construing this declaration in plaintiff's favor, at best it shows that officers at MCJ controlled access to grievance forms and at least sometimes, or even often, did not distribute forms. But the combined declaration does not assert with any specificity that these inmates had personal knowledge that plaintiff, for example, requested a grievance form regarding his lack of exercise shoes but deputies refused to give him one for that issue.
Thompson testified at the hearing about one particular instance of requesting, but not receiving, a grievance form:
Q. And you personally heard people ask for grievance forms?
A. I actually tried to get grievance forms because they wouldn't let me take a shower for five months with that leg cast.
Q. So did you ask to grieve about not taking a shower for five months?
A. Yes.
Q. And they refused to give you a grievance?
A. (Nodding head.)And while that testimony is an arguably troubling example of the deputies' refusal to distribute forms to Thompson regarding shower access, it is not specific to the issues in plaintiff's current claims or plaintiff's attempt to grieve them. Pagan v. Westchester Cnty., No. 12 CIV. 7669 PAE JCF, 2014 WL 982876, at *14 (S.D.N.Y. Mar. 12, 2014) (“Absent specific details about who refused his grievance, [plaintiff's] allegation is insufficient for exhaustion.”); Butler v. Martin, 07 CIV. 521(FJS)(GHL), 2010 WL 980421, at *5 (N.D.N.Y. Mar. 15, 2010) (“Even if, as alleged, Plaintiff's grievances were discarded, Plaintiff offers no evidence that a particular officer discarded the grievances.”).
Moreover, a deputy's occasional refusal to distribute forms is not necessarily inconsistent with other evidence in the record about how the grievance process at MCJ is supposed to operate. The first step in the administrative procedure process is for the inmate and officer to “[a]ttempt to verbally resolve the problem,” and if the issue cannot be resolved, or the inmate has “written proof that [the inmate] tried to resolve an issue (like a denied inmate request form),” then the inmate can send a grievance form. Davis Decl. Ex. C at 13, ECF 134. In other words, the Inmate Handbook envisions at least some instances when deputies would work to resolve an inmate's issue verbally without immediately distributing a grievance form every time an inmate requested one. Without more specificity that plaintiff did in fact request a grievance on a particular issue but was denied and therefore he could not engage at all in the grievance process, the combined declaration and Mr. Thompson's testimony as to his experience does not carry plaintiff's burden to establish that the administrative system was “effectively unavailable” for his present claims.
Alternatively, plaintiff asserts that he did not grieve these issues because the County Defendants “retaliated” against inmates who filed grievances. Resp. 16-17, ECF 161. “[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.” McBridev. Lopez, 807 F.3d 982, 987 (9th Cir. 2015). In determining whether a threat rendered the grievance system 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. Plaintiff filed five grievances and numerous kytes while at MCJ, which belies any conclusion that he subjectively feared retaliation for filing grievances. 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. CV 21-3383-VAP(E), 2022 WL 3206422, at *12 (C.D. Cal. July 13, 2022) (rejecting plaintiff's “fear of retaliation” excuse from exhaustion because he filed, among other things, several other grievances during the relevant time). Furthermore, there is no specific evidence of retaliation in the record. The only instance of retaliation plaintiff describes is that after he filed his first grievance regarding communication with his children, officers “repeatedly issued plaintiff disciplinary violations for an[y] random issue.” Resp. 17, ECF 161. Plaintiff filed the grievance on January 14, 2016. His disciplinary record shows that he was issued a “warning” on March 3, 2016, for “excess books in cell.” Monical Decl., Ex. 3 at 1, ECF 162. The timing alone is not sufficiently close to infer causation. See Pratt v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995) (rejecting district court's finding that timing of prisoner-plaintiff's inter-prison transfer proved retaliatory motive: “True, timing can properly be considered as circumstantial evidence of retaliatory intent. In this particular case, however, there is little else to support the inference.”). Nor did plaintiff provide any specific testimony at the evidentiary hearing from which it could be concluded that defendants retaliated against him or other inmates who filed grievances. The only testimony about retaliation was as follows:
The date on plaintiff's grievance form is listed as January 14, 2015. Davis Decl., Ex. B at 1, ECF 134. It is clear from context that the correct year is 2016, as plaintiff was in custody at MCJ from December 16, 2015, to November 23, 2016. Ramsey Decl., Ex. J at 1, ECF 140.
The time that I had asked Mr. Frieze for a grievance form about being denied going to the law library, he specifically just -- when it comes to, like, retaliation -when you're only out of your cell for 30 minutes a day, seven days a week, or hour and a half a day, seven days a week, and you get celled in for talking too loud or walking too loud, those are retaliatory. Being locked down 24 hours a day is very, very traumatic for someone who's been locked down for years.Plaintiff also points to the combined declarations and other statements from fellow inmates which generically assert that “inmates will not use the grievance system as it is well known that any grievance about an officer will result in retaliation - ie endless cell-in's for any minor issue -talking above a whisper - having a left over juice packet from breakfast, anything that could be justified by opinion only[.]” Monical Decl., Ex. 5 at 4, ECF 162 (punctuation and spelling as written). This evidence is insufficient to establish retaliation because, as explained above, plaintiff's testimony is not credible, and because the evidence is not specific to any particular instance or threat of retaliation. Cf. Rodriguez v. Cnty. of Los Angeles, 891 F.3d 776, 793 (9th Cir. 2018) (finding that specific evidence of threat of retaliation included a warning that “for your own good, I'm going to forget you turned in this complaint. Keep your mouth shut,” and to “not say shit” about prisoner beatings or risk being “dealt with”). Thus, there is no competent evidence showing the County Defendants had a policy of retaliation or specifically retaliated against plaintiff for filing grievances.
In sum, there is no allegation or evidence that plaintiff ever attempted to grieve the County Defendants' alleged failure to protect him from assault or the County Defendant's alleged neglect of plaintiff's serious medical needs regarding his slip-and-fall injuries. Plaintiff's testimony about his attempts to grieve his lack of access to the law library, lack of exercise shoes, lack of opportunities to exercise, or adequacy of the provided shower shoes is not credible. The conflicts between the documentary evidence, in particular plaintiff's testimony that he was not allowed a grievance form while awaiting transfer and the November 22, 2016, grievance that plaintiff submitted one day before he was transferred, severely taints plaintiff's testimony on all other issues, as it is impossible to separate which potions of plaintiff's testimony are and are not credible. See Ninth Circuit Manual of Model Civil Jury Instructions 1.14 (“[I]f you decide that a witness has deliberately testified untruthfully about something important, you may choose not to believe anything that witness said.”). Nor is there any competent or credible evidence that plaintiff failed to exhaust available remedies because deputies at MCJ retaliated against him for filing grievances.
Because plaintiff has failed to establish that the administrative remedies were “effectively unavailable” for claims one through four, the County Defendants are entitled to summary judgment based on plaintiff's failure to exhaust these claims.
E. Claim Five
As mentioned, plaintiff's fifth claim has two parts. First, he alleges that the County Defendants wrongly prevented him from contacting his children in violation of his First Amendment right to freedom of association. Third Am. Compl. 37-39, ECF 58. Second, plaintiff alleges that Keefe Commissary charged excessive postage for non-legal mail in violation of his First Amendment right to freedom of speech. Id. at 39-42.
Taking the “contact with children” claim first, plaintiff filed a grievance on this issue on January 14, 2016. Davis Decl., Ex. B at 1, ECF 134. The deputy responded that MCJ's “no contact” restriction was based on “information [MCJ] received from EOCI Counselor Lydia Conley. The direct order you received was from her delivered by us....Any concerns you have [with] this directive should be taken up [with] her.” Plaintiff refused to accept this response and took the grievance to the supervisor, who wrote: “I spoke with Counselor Conley and we are going to uphold her order that you do not write or call your children. DOC still has the right to hold you accountable. My suggestion to you is that you seek legal counsel if you do not agree with this order.” Id. Plaintiff again refused to accept this result and raised the grievance to the administrator, who wrote back: “You have received an answer.” Id.
Plaintiff asserts that this grievance was “completely exhausted as soon as it was written,” Resp. 8, ECF 161, because the supervisor's response included suggesting plaintiff seek legal counsel, and the administrator wrote, “you have received an answer.” Davis Decl., Ex. B at 1, ECF 134. Plaintiff asserts this is the “very definition of an exhausted grievance procedure under Brown.” Resp. 8, ECF 161 (citing Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005)). Contrary to plaintiff's suggestion, the administrator's response did not inform plaintiff that no relief or further review was available, merely that the administrator agreed with the previous responders that the order was from EOCI and that MCJ had confirmed the order and would enforce it. See Brown, 422 F.3d at 935 (explaining that the “statutory language does not require exhaustion when no pertinent relief can be obtained through the internal process.”) (emphasis in original) (citing Booth, 532 U.S. at 736).
The final step in the MCJ grievance procedure is to submit a written appeal of the grievance to the Jail Commander. Davis Decl., Ex. C at 13, ECF 134 (“The appeal must be in writing, and on a separate document from the original grievance.”). There is no documentary evidence that plaintiff made a written appeal to the jail commander. Id. Plaintiff testified at the hearing that he wrote a letter to the jail commander about contact with his children, though he did not have access to his copy of that letter, and he points out that his daughter was allowed to visit him sometime in 2016. See also Monical Decl., Ex. 2 at 1-2, ECF 162.
Testimony at the hearing established that final written appeals of grievances are stored with relevant documents as part of MCJ's record-keeping. There is no record that plaintiff submitted a written appeal. Davis Decl. ¶¶ 2, 12-13, ECF 134. The only evidence disputing this is plaintiff's testimony that he did write an appeal and that he was eventually allowed to communicate with his children. But neither creates an issue of fact regarding exhaustion. Plaintiff's testimony is not credible, and subsequent communication with his children does not prove whether plaintiff followed the grievance procedure to its conclusion before bringing suit as required by the PLRA. See Clark v. Loranth, No. CIV.A. 1:13-556-MGL, 2014 WL 1373700, at *6 (D.S.C. Apr. 8, 2014) (“Defendants will never be able to definitely prove a negative-that the proper grievance was not filed-in the face of a bald assertion that [Bureau of Prisons] officials destroyed the grievance. However, Defendants have met their burden of proof in having demonstrated the absence of an entry in records kept in accordance with the BOP's regularly-conducted activities.”); see alsoFED. R. EVID. 803(7) (evidence that a matter is not included in one's business records is admissible to prove the nonoccurrence or nonexistence of the matter). Thus, plaintiff failed to fully exhaust the issue regarding contacting his children and defendants are entitled to summary judgment on that claim.
For similar reasons, defendants are entitled to summary judgment for plaintiff's failure to exhaust the claim that defendant Keefe Commissary charged excessive rates for non-legal mail. There is no record that plaintiff filed a grievance on this issue. Davis Decl., Ex. B at 1-6, ECF 134. Plaintiff's testimony that he was denied a grievance for Keefe Commissary is not credible, for the reasons discussed above. And testimony at the hearing established that filing a grievance against Keefe Commissary was not “futile,” as plaintiff claims. Resp. 19, ECF 161. The testimony established that Officers at MCJ had received prior grievances related to commissary issues and handled them in the same manner as any other grievance. Finally, even if plaintiff had exhausted this claim, there is no constitutional right to purchase items at cost from a prison commissary. Acree v. Peterson, No. 99-1085-KI, 2000 WL 1141587, at *7 (D. Or. Aug. 1, 2000) (dismissing claims that “defendants charged unreasonably high prices for commissary items and misused inmate funds. Plaintiff has no protected property interest to purchase commissary items.”); Pagan, 2014 WL 982876 at *17 (“These claims regarding commissary prices, however, cannot survive defendants' motions to dismiss. Even if the prices in the Commissary are high, such ‘gouging' does not constitute a constitutional violation.”) (citations omitted); French v.Butterworth, 614 F.2d 23, 25 (1st Cir. 1980) (“[T]here is simply no legal basis for a demand that inmates be offered items for purchase at or near cost.”).
Plaintiff's argument relies heaving on his belief that the County Defendants failure to respond to his First Request for Admission has the effect of deeming all unanswered requests as admissions. Resp. 4-7, ECF 161. As explained in a separate order, plaintiff failed to serve the First Request for Admission without sufficient time for the County Defendants to respond and comply both with the Federal Rules and the then-in-place discovery deadline. See ECF 201. Plaintiff then filed a Third Amended Complaint, and never served a Second Request for Admission. Therefore, the County Defendants were not under any obligation to respond and thus plaintiff's insistence that certain matters be deemed admitted is baseless.
Therefore, the County Defendants and Keefe Commissary are entitled to summary judgment on plaintiff's claim regarding postage rates.
III. Dismissal Without Prejudice
“If the district court concludes that the prisoner has not exhausted nonjudicial remedies, the proper remedy is dismissal of the claim without prejudice.” Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003), overruled on other grounds by Albino, 747 F.3d at 1162; see also Carrea v.California, 551 Fed.Appx. 368, 369 (9th Cir. 2014) (remanding for the entry of dismissal without prejudice because the proper remedy for non-exhaustion is dismissal without prejudice) (cited pursuant to Ninth Circuit Rule 36-3). Even if plaintiff “can no longer exhaust administrative remedies as to the claims in this case” and “refiling his complaint . . . would be futile,” this court is “bound by Wyatt v. Terhune” to dismiss this case without prejudice. Williams v. Oregon Dep'tof Corr., No. 3:10-CV-884-JO, 2013 WL 867181, at *2 (D. Or. Mar. 6, 2013).
RECOMMENDATIONS
Defendant Keefe Commissary's motion for summary judgment (ECF 136) and County Defendants' motion for summary judgment (ECF 137) should both be granted because plaintiff failed to exhaust his administrative remedies for the claims he brought in this suit. Plaintiff did not establish that the existing administrative process at MCJ was “effectively unavailable” for any of these claims because the testimony and other evidence that plaintiff presented at the hearing regarding the alleged refusal by deputies at MCJ to distribute grievance forms or to retaliate against inmates who filed grievances was inconsistent, unspecific, and contradicted by contemporaneous documentary evidence. Plaintiff failed to complete the final step in the administrative appeal regarding the issue of communicating with his children, and thus also failed to properly exhaust that claim, and none of the evidence he presented at the hearing was sufficient to establish that he completed the final step in the administrative process by writing a separate appeal to the jail commander. Plaintiff's motion for partial summary judgment (ECF 122) should accordingly be denied as moot, and the case should be dismissed without prejudice.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Monday, October 03, 2022. 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.