Oregon Cases February 14, 2020: Uribe v. Gulick

Case Description

OPINION AND ORDER

MCSHANE, District Judge:

Plaintiff, a former inmate at Snake River Correctional Institution (SRCI), filed this action under 42 US.C. § 1983. Plaintiff alleges that defendants, Drs. Gulick and Hemphill, exhibited deliberate indifference to his serious medical needs in violation of the Eighth Amendment while he was incarcerated at SRCI. Defendants now move for summary judgment, arguing that plaintiff's claims are barred for failure to exhaust his administrative remedies. Because plaintiff fails to show that he exhausted the available grievance process, defendants' motion for summary judgment is granted.

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Plaintiff alleges that defendants failed to provide adequate care for his Hepatitis C, as well as other serious medical needs involving his spine, knee, shoulders, and testicles. Defendants maintain that plaintiff did not complete the grievance process for his claims against them and that summary judgment should be granted in their favor. To prevail on their motion, defendants must show that there is no genuine dispute as to any material fact and that 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 court action to redress prison conditions or incidents. 42 U.S.C § 1997e(a). The exhaustion requirement is mandatory and requires compliance with both procedural and substantive elements of the prison grievance processes. Woodford v . Ngo , 548 U.S. 81, 84, 90 (2006). To meet this requirement, inmates must complete the administrative review process and comply with all applicable procedural rules by appealing a grievance decision to the highest level before filing suit. Id . ; Marella v . Terhune ; McKinney v . Carey , 311 F.3d 1198, 1199-1200 (9th Cir. 2002) (per curiam). However, the PLRA does not require exhaustion when administrative remedies are "effectively unavailable" to the inmate. Sapp v . Kimbrell , 623 F.3d 813, 822 (9th Cir. 2010 ); see also Marella , 568 F.3d at 1027 (administrative remedies may be effectively unavailable where the prisoner lacks the necessary forms or is

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informed that he cannot file a grievance); Brown v . Valoff , 422 F.3d 926, 937 (9th Cir. 2005) (an administrative remedy must be available "as a practical matter").

The Oregon Department of Corrections (ODOC) has a three-step grievance and appeal process to address inmate complaints. See Or. Admin. R. 291, Div. 109. Inmates may file grievances for numerous issues, including "unprofessional behavior or action which may be directed toward an inmate by an employee" or an "oversight or error affecting an inmate." Id . 291-109-0140(2)(c),(d). Unless the matter is an emergency, the inmate must file a grievance form within thirty days of the alleged condition or incident. Id . 291-109-0150(2). An inmate may appeal the initial grievance response within fourteen days from the date the denial was sent to the inmate. Id . 291-109-0170(1)(b). A grievance that is returned 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 . 291-109-0160(5). If the first appeal is denied, the inmate may file a second and final appeal within fourteen days of the date the denial was sent to the inmate. Id . 291-109-0170(2)(c). As with initial grievances, appeals that are returned to the inmate for procedural reasons may not be appealed further but may be resubmitted after correction of the procedural errors. Id . 291-109-0170(1)(c),(2)(d). A decision following a second appeal is final and not subject to further review. Id . 291-109-0170(2)(f).

Plaintiff filed numerous grievances complaining about his medical care and treatment while at SRCI. Taylor Decl. Att. 5 (ECF No. 36). A review of the record establishes that plaintiff did not exhaust the available grievance process with respect to the claims raised in this action.

In Grievance SRCI.2018.07.020, dated July 2, 2018, plaintiff asserted that Dr. Gulick was "a disrespectful quack doctor" who was doing "nothing" to treat plaintiff's Hepatitis C "except for drawing labs." Id . ¶ 11 & Att. 6 at 2. Plaintiff complained that Dr. Gulick would not

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provide a knee brace due to "security issues" and would not remove taser prongs from his back "because it would be tampering with state evidence." Id . Plaintiff also grieved the alleged lack of treatment for numerous other physical maladies. Id . Att. 6 at 3-5. This grievance was returned to plaintiff for corrections, because "an inmate grievance may request review of just one matter, action, or incident per inmate grievance form." Id . Att. 6 at 1; Or. Admin. R. § 291-109-0140(1)(d). Plaintiff did not resubmit the grievance with corrections. Taylor Decl. ¶ 12.

In Grievance SRCI.2018.07.114, dated July 18, 2018, plaintiff asserted that Dr. Gulick had "maligned" his character, accused him of being a drug addict, and threatened to discipline him and delay his Hepatitis C treatment. Id . ¶ 13 & Att. 7 at 3. This grievance was accepted on July 23, 2018 and sent for a response. On August 8, 2018, Registered Nurse (RN) Bradford responded and explained that plaintiff's request for Hepatitis C treatment had been presented to the ODOC Therapeutic Level of Care (TLC) Committee on July 18, 2018, and the TLC Committee determined that plaintiff was not a candidate for the requested treatment. Id . Att. 7 at 1. Plaintiff did not appeal Nurse Bradford's response to his grievance. Id . ¶ 15.

In Grievance SRCI.2018.07.135, dated July 18, 2018, plaintiff complained that Dr. Gulick "mocked" him and refused to treat his health issues. Taylor Decl. ¶ 16 & Att. 8 at 2. This grievance was returned for corrections because plaintiff did not include a description of the incident, action, or application of prison rule that he was grieving. Id . Att. 8 at 1. Plaintiff did not submit a corrected grievance. Id . ¶ 17.

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In Grievance SRCI.2018.08.101, dated August 17, 2018, plaintiff complained that Dr. Gulick refused to treat his medical issues, including a "palpable mass" in his lower back, a separated shoulder, and right knee pain. Id . ¶ 18 & Att. 9 at 2. The grievance was returned to plaintiff for corrections, because had grieved more than one health issue and more than one health provider. Att. 9 at 1. Plaintiff did not resubmit a corrected grievance. Id . ¶ 19.

In Grievance SRCI.2018.08.102, dated August 18, 2018, plaintiff asserted that Dr. Gulick had refused to treat his Hepatitis C as well as a growth in in his scrotum. Taylor Decl. ¶ 20 & Att. 10 at 4. This grievance was returned to plaintiff for corrections because plaintiff had grieved more than one incident and had already submitted grievances on those issues. Id . Att. 10 at 3. On August 27, 2018, plaintiff resubmitted his grievance, but that grievance was returned because plaintiff had submitted more than two grievances that week. Id . ¶ 21 & Att. 10 at 1-2. According to ODOC regulations, "an inmate shall submit no more than two initial inmate grievances in any one week or six in any calendar month," except for "grievances regarding allegations of sexual abuse." Or. Admin. R. § 291-109-0180(1). Plaintiff does not show that the limitations on grievances made the administrative remedy process unavailable to him in these circumstances. Plaintiff had already raised the issue of his health care in previous grievances and had ample opportunity to grieve his complaints against Dr. Gulick. Accordingly, Grievance No. SRCI.2018.08.102 was not exhausted.

In Grievance SRCI.2018.08.125, dated September 4, 2018, plaintiff complained that Dr. Gulick refused to provide a knee brace for his swollen leg. Taylor Decl. ¶ 23 & Att. 12 at 15-16.

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On September 21, 2018, RN Brotherson responded and noted that plaintiff had an appointment on September 6, 2018, and Dr. Hemphill attempted to evaluate plaintiff's right knee. Id . Att. 12 at 14. Dr. Hemphill terminated the appointment after plaintiff's attempted to discuss additional medical issues, and another appointment was scheduled to allow Dr. Hemphill adequate time to discuss all of plaintiff's concerns. Id . Plaintiff appealed this response.

In his appeal received October 1, 2018, plaintiff complained about the treatment for his knee, indicated that he planned to file a civil lawsuit, and asked to be sent to the nearest medical facility. Id . Att. 12 at 12. This appeal was accepted and sent out for a response. On November 1, 2018, ODOC Medical Director Dr. Chris DiGiulio responded. Dr. DiGiulio noted Dr. Gulick's efforts to treat plaintiff, including x-rays of his knee and lumbar spine, and explained that the TLC Committee concluded a knee brace was not medically indicated. Id . Att. 12 at 10. On November 13, 2018, plaintiff filed a second appeal which criticized SRCI Health Services staff members and threatened to sue them in his then-pending lawsuit. Id . Att. 12 at 8. Plaintiff's second appeal was returned for corrections due to his language. Id . Att. 12 at 7; see Or. Admin. R. § 291- 109-0120(2) ("Inmates shall communicate with staff in a civil and respectful tone and manner.").

Plaintiff resubmitted his second appeal and it was again returned for corrections because plaintiff did not explain the reason for his appeal and had expanded the scope of his grievance to other ODOC officials. Id . ¶ 29 & Att. 12 at 5-6. Plaintiff resubmitted his second appeal two more times, and each time he failed to comply with relevant grievance procedures. Id . Att. 12 at 1-4. Plaintiff was also informed that his grievances were returned because he had filed a notice of tort claim or lawsuit regarding the pending grievance issues. Id . Att. 12 at 1. By that time, plaintiff

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had filed his complaint in this case on October 12, 2018 and could no longer complete the grievance process. See Or. Admin. R. § 291-109-0140(3)(h) (stating that "an inmate cannot grieve claims or issues the inmate has pursued or is pursuing in pending litigation in state or federal courts").

Plaintiff also filed the following additional grievances and made similar complaints regarding his medical care: Grievance No. SRCI.2018.08.127; Grievance No. SRCI.2018.08.128; Grievance No. SRCI.2018.08.129; Grievance No. SRCI.2018.09.072; Grievance No. SRCI.2018.10.041; Discrimination Complaint No. SRCI.2018.12.013; Grievance No. SRCI.2018.12.037; Discrimination Complaint No. SRCI.2018.12.041; Discrimination Complaint No. SRCI.2018.12.042. Taylor Decl. ¶¶ 32-54 & Atts. 13-22. In each of these instances, the grievance or complaint was denied because plaintiff had filed a previous grievance on the same issue, or the grievance was returned for corrections or returned due to plaintiff's pending lawsuit. Id .

In sum, despite being given numerous opportunities, plaintiff failed to exhaust the grievance process with respect to the deliberate indifference claims raised in this action.

Plaintiff nevertheless argues that he exhausted his available remedies through his grievances, "kytes" to corrections officials, and by calling a State of Oregon hotline. Plaintiff contends the documents he submits as "Exhibit M" rebut defendants' arguments and show that he exhausted his remedies. Pl.'s Decl. in Response (ECF No. 43). . Plaintiff was required to exhaust his administrative remedies through the relevant ODOC grievance process, and the documents in Exhibit M do not support his arguments. Those documents are copies of his grievances and the responses to them, and they simply confirm that plaintiff failed to comply with ODOC's grievance rules and failed to exhaust his administrative remedies.

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Defendants' Motion for Summary Judgment (ECF No. 35) is GRANTED and plaintiff's Motion to Vacate (ECF No. 45) is DENIED. This case is DISMISSED. Any appeal of this decision or the Judgment dismissing this action would be frivolous and not taken in good faith. Accordingly, plaintiff's IFP status is REVOKED.

IT IS SO ORDERED.

DATED this 14th day of February, 2020.

s/ Michael J. McShane
Michael J. McShane
United States District Judge