Opinion
Case No. 03-1043-KI
June 2, 2004
Karl L. Thompson, Ontario, Oregon, for Pro Se Plaintiff
Hardy Myers and Leonard W. Williamson, Department of Justice, Salem, Oregon, for Defendants
OPINION
Plaintiff Karl Thompson, an inmate at Snake River Correctional Institution ("SRCI"), brings civil rights claims under § 1983 concerning an incident in which Thompson reported to his unit officer that he needed to be transferred to another housing unit because he had just been assaulted by a fellow inmate. Before the court is Defendants' Motion for Summary Judgment — Qualified Immunity (#22). For the reasons below, I grant the motion and dismiss the action without prejudice for failure to exhaust administrative remedies.
FACTS
On March 7, 2003, Thompson was assaulted by an unknown inmate while in his housing unit's day room at SRCI. The assault caused a cut on Thompson's face and "ample blood evidence." Complaint at 4 n. 4. The inmate threatened Thompson with additional violence if Thompson continued to stay in his assigned living quarters.
All dates are in 2003 unless otherwise specified.
Many of these facts are taken from Thompson's verified complaint. A verified complaint can take the place of an affidavit opposing summary judgment if it is based on personal knowledge and sets forth specific facts admissible in evidence. Lopez v. Smith. 203 F.3d 1122, 1132 n. 14 (9th Cir. 2000).
Defendants file four affidavits from SRCI correction officers and medical personnel, along with several types of SRCI records, to convince me that Thompson was not cut and bloodied prior to seeking a change in housing assignments. Although this evidence might be very persuasive to a jury, I cannot decide disputed issues of fact in a motion for summary judgment, even one based on qualified immunity. Brown v. Li, 308 F.3d 939, 946-47 (9th Cir. 2002), cert. denied, 538 U.S. 908 (2003). Thus, I draft these facts from the evidence viewed in the light most favorable to Thompson. As it turns out, whether Thompson suffered an assault is not relevant to the issue on which I base my analysis, the exhaustion of administrative remedies, under which I can resolve disputed facts if necessary. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir.), cert., denied, 124 S.Ct. 50 (2003). Determining whether Thompson was assaulted is not necessary here.
Thompson went to Officer Jewkes and told him that he needed a transfer to another unit to avoid a violent situation. Officer Jewkes sent Thompson to Sergeant Bolton, who told Thompson that he needed to use the conventional means to get a transfer, a procedure that takes about a month. Thompson then asked Lieutenant Butler for a transfer to prevent further violence. Lieutenant Butler told Thompson that if he would not state who assaulted him he would be sent to the Disciplinary Segregation Unit ("DSU"). Thompson refused to say who assaulted him because he did not want to be marked as a "snitch." Instead, Thompson refused to return to his cell, even after being given a direct order to do so. Thompson was taken to DSU and charged in a misconduct report with a violation of two Oregon Department of Corrections ("ODOC") rules, Disobedience of an Order I and Unauthorized Area I. After a disciplinary hearing, Hearings Officer Myers sanctioned Thompson with seven days segregation and fourteen days loss of privileges on release from segregation.
Teresa Hicks, the Grievance Coordinator at SRCI, reviewed the inmate communication and grievance records maintained for Thompson and found only the following ones that had any connection to this matter.
On March 24, Thompson sent an inmate communication to Hearings Officer Myers and asked for the return of Thompson's handwritten statement of facts that he brought to his disciplinary hearing. Officer Myers responded that Thompson could request the document from the superintendent under the Freedom of Information Act ("FOIA").
On April 1, Thompson sent an inmate communication to Superintendent Hill making a FOIA request for the handwritten document from which he read at his hearing. Superintendent Hill forwarded the inmate communication to the Hearings Office and asked for the cost of a copy, if Thompson was allowed to have the document.
On April 8, Thompson sought an Administrative Review of his disciplinary hearing but was informed by the Inspections Division Administrator that his case did not meet the qualifications for this type of review.
On April 17, Thompson sent another inmate communication to Superintendent Hill, asking again for his handwritten document and noting that over two weeks had passed since his first request to her.
On April 23, Hearings Officer Myers sent a memorandum to Superintendent Hill stating that Thompson could purchase a copy of his two-page handwritten document for $1.
On April 28, Thompson filed a grievance to Superintendent Hill, stating that he still had no response to his two inmate communications to her and asking again for his handwritten document. Thompson also asked Superintendent Hill to follow the time line specified in the administrative rules that staff should make every effort to respond to inmate communications within five working days of receipt.
Also on April 28, Thompson sent an inmate communication to Grievance Coordinator Hicks asking her to process his grievance.
On April 29, Superintendent Hill sent a memorandum to Thompson explaining that he could get a copy of his handwritten document by forwarding the paperwork allowing $1 to be taken from his trust account for the copies.
Although the point is not relevant to my analysis, I do not understand why Thompson must make a FOIA request and then pay to get back his personal handwritten document which he brought to his disciplinary hearing, probably to remind himself of the points he wished to make. Although I am not ordering this, because I do not know defendants' reasoning, I ask defendants either to give Thompson back his original document or provide a copy of it, at no charge to him.
On May 12, Grievance Coordinator Hicks responded to Thompson's April 28 grievance without action and noting that he had received a response on April 29.
On May 26, Thompson completed another grievance to Superintendent Hill. He states that he sent her a kyte (formally known as an inmate communication form) on March 24 asking her to dismiss his major discipline and asking her to talk with the officers who could substantiate his claim of assault leading to his request for an emergency move. Thompson says that he sent another kyte on April 7 because Superintendent Hill's memo in response to the first did not say that she had talked with the officers. Thompson also states that he sent other kytes to her on May 8 and May 20 because she had not yet responded.
Defendants did not provide copies of these four kytes or the responses to them.
Also on May 26, Thompson sent an inmate communication to Grievance Coordinator Hicks stating that he enclosed the grievance for Superintendent Hill and he was filing it because the superintendent refused to answer his direct question.
On June 9, Grievance Coordinator Hicks returned Thompson's May 26 grievance without action, noting that his complaint that responses are not answered in the manner he would like is not grievable.
There is no evidence that Thompson appealed the grievance responses.
DISCUSSION
Thompson alleges three claims against defendants: (1) a violation of the Eighth Amendment's prohibition against cruel and unusual punishment by deliberately and indifferently neglecting their duty to ensure his health and safety; (2) a violation of the First Amendment's freedom of speech clause by penalizing him for refusing to speak as an informant; (3) a violation of procedural due process by giving Thompson an ultimatum to identify his attacker or go to DSU.
Defendants contend that Thompson pursued only a portion of his available administrative remedies. Because Thompson did not complete the administrative process, defendants argue that I should dismiss his claims.
The Prison Litigation Reform Act (" PLRA") states: "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." 42 U.S.C. § 1997e(a). Failure to exhaust is an affirmative defense that defendants have the burden of raising and proving. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir.), cert. denied, 124 S.Ct. 50 (2003). The defense is subject to an unenumerated Rule 12(b) motion in which the court may look beyond the pleadings and decide disputed issues of fact. When a prisoner did not exhaust nonjudicial remedies, the court should dismiss the claim without prejudice. Id. at 1119-20. The prisoner must exhaust all available remedies, even if the remedies are not "plain, speedy, and effective," and even if the prisoner seeks relief not available in grievance proceedings, such as money damages. Porter v. Nussle, 534 U.S. 516, 524, 122 S.Ct. 983 (2002) (PLRA's exhaustion requirement applies to all prisoner suits about prison life, whether they involve general circumstances or particular episodes and whether they allege excessive force or some other wrong).
Grievances are processed in accordance with the ODOC Administrative Rules for Inmate Communication and Grievance Review System. Inmates are encouraged to talk to first line staff as their primary way to resolve disputes and, if not satisfied, to use a written inmate communication form. OAR 291-109-0120(2)(a)(A) and (B). If this does not resolve the issue, the inmate can file a grievance if it complies with the Rules and no other review process is available. OAR 291-109-0140(1)(a) and (2)(b)(B). Misconduct reports resulting in certain more severe sanctions have a separate Administrative Review process. OAR 291-105-0073.
Inmates can grieve: (1) the application of or lack of any administrative directive or operational procedure; (2) unprofessional behavior or action directed toward an inmate by an employee or volunteer; and (3) any oversight or error affecting an inmate. OAR 291-109-0140(2)(a).
An inmate can appeal a grievance response to the functional unit manager by completing a grievance appeal form and filing it with the grievance coordinator within fourteen days of receipt of the response. OAR 291-109-0140(5)(a). If still not satisfied, the inmate can appeal the functional unit manager's decision by completing another grievance appeal form and filing it with the grievance coordinator within fourteen days. This final appeal is decided by an assistant director having authority over the issue. OAR 291-109-0140(5)(b).
Thompson seeks discovery to support the allegations in his Complaint, in particular, that he was assaulted. He does not appear to seek any discovery concerning the exhaustion of administrative remedies so I will not defer ruling on the issue.
Although Thompson's May 26 grievance to Superintendent Hill objects to Thompson's discipline for the same factual reasons as in this case, there is no evidence that Thompson appealed the response. The appellate process provided by the administrative rules is part of the administrative remedies which the PLRA requires Thompson to exhaust. I conclude that he has not fulfilled this requirement. Consequently, this court cannot address his claims at this time.