IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

CHRIS SHABAZZ-WIMBERLY,

Plaintiff,

v.

RUSS NICHOLS, Physical Plant

Manager at TRCI; CHARLES NAY,

Physical Plant Employee at

TRCI; A. SMITH, Physical

Plant Employee at TRCI; SUE

WASHBURN, Food Service

Manager at TRCI; GARY HALL,

(Former) Assistant Food

Service Manager at TRCI;

BRIAN MISNER, (Former) Food

Service Coordinator at TRCI;

BRIDGETT WHELAN, Health

Service Manager at TRCI;

CURTIS SYLE, (former)

Correctional Officer at TRCI;

and DAY, Corporal at TRCI, 

Defendants.

2:14-CV-01237-BR

 

OPINION AND ORDER 

CHRIS SHABAZZ-WIMBERLY

#10571327

Deer Ridge Correctional Institution

3920 East Ashwood Road

Madras, OR 97741 

Plaintiff, Pro Se

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ELLEN ROSENBLUM

Attorney General

MICHAEL R. WASHINGTON 

Assistant Attorney General

Oregon Department of Justice

1162 Court Street, N.E.

Salem, OR 97301

(503) 947-4700 

Attorneys for Defendants

BROWN, Judge.

This matter comes before the Court on Defendants' Motion

(#36) for Summary Judgment. For the reasons that follow, the

Court GRANTS in part and DENIES in part Defendants' Motion.

BACKGROUND

On December 15, 2014, Plaintiff, an inmate at Deer Ridge

Correctional Institution,1

 filed pro se an Amended Complaint in

this Court pursuant to 42 U.S.C. § 1983 alleging Defendants

violated his rights to be free from deliberate indifference under

the Eighth Amendment, to due process under the Fourteenth

Amendment, and to free speech in violation of the First

Amendment.

On January 6, 2015, Defendants filed a Motion for Summary

Judgment in which they seek to dismiss Plaintiff's claims for

1 Plaintiff was an inmate at Two Rivers Correctional

Institution from May 27, 2010, through October 31, 2014, at which

time he was transferred to Deer Ridge Correctional Institution

where he remains incarcerated.

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failure to exhaust administrative remedies. 

On January 7, 2015, the Court issued a Summary Judgment

Advice Notice to Plaintiff advising him that if he did not submit

admissible evidence in opposition to Defendants’ Motion for

Summary Judgment, summary judgment could be entered against him.

Plaintiff filed a Response to Defendants’ Motion, and the

Court took the matter under advisement on May 5, 2015.

STANDARDS

In the Ninth Circuit the failure to exhaust administrative

remedies "should be treated as a matter in abatement, which is

subject to an unenumerated Rule 12(b) motion rather than a motion

for summary judgment." Wyatt v. Terhune, 315 F.3d 1108, 1119

(9th Cir. 2003). See also Dixon v. Corr. Corp. of Am., 420 F.

App'x 766, 767 (9th Cir. 2011)("[T]he failure to exhaust

nonjudicial remedies that are not jurisdictional should be

treated as a matter in abatement, which is subject to an

unenumerated Federal Rule of Civil Procedure 12(b) motion rather

that a motion for summary judgment."); Puente v. City of Los

Angeles, 358 F. App'x 909, 910-11 (9th Cir. 2011)("First, the

district court did not abuse its discretion by declining to

vacate its dismissal order based on Plaintiff's claim that

Defendants' motion to dismiss was untimely. A motion to dismiss

for failure to exhaust administrative remedies must be made as an

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unenumerated Fed. R. Civ. P. 12(b) motion, and need not be filed

before a responsive pleading."). The Court, therefore, treats

Defendants’ Motion as an unenumerated Rule 12(b) Motion to

Dismiss.

To decide a motion to dismiss for failure to exhaust

administrative remedies, the court may look beyond the pleadings

and decide disputed issues of fact. Id. at 1119-20. Unlike

summary judgment, dismissal for failure to exhaust administrative

remedies is not a decision on the merits. Id. "If the district

court concludes that the prisoner has not exhausted nonjudicial

remedies, the proper remedy is dismissal of the claim without

prejudice." Id. at 1120. 

DISCUSSION

I. Prison Litigation Reform Act (PLRA) Exhaustion Requirement

The PLRA provides in pertinent part that "[n]o 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). Exhaustion is mandated regardless of the

relief offered through the prison administrative procedures. 

Booth v. Churner, 532 U.S. 731, 740 (2001). See also Brown v.

Valoff, 422 F.3d 926, 934-35 (9th Cir. 2005)(same). 

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The exhaustion requirement applies "to all inmate suits

about prison life, whether they involve general circumstances or

particular episodes, and whether they allege excessive force or

some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002). 

See also Valoff, 422 F.3d at 935. In Booth the Supreme Court

further held prisoners are obligated to navigate the prison's

administrative review process "regardless of the fit between a

prisoner's prayer for relief and the administrative remedies

possible." 532 U.S. at 739-41. Accordingly, the Ninth Circuit

has held "plaintiffs must pursue a remedy through a prison

grievance process as long as some action can be ordered in

response to the complaint." Valoff, 422 F.3d at 934 (emphasis in

original). Even if the prisoner does not receive any more relief

than "corrective action taken in response to an inmate's

grievance [that] . . . improve[s] prison administration and

satisf[ies] the inmate," it is sufficient relief for an inmate to

continue with the administrative process. Id. at 936 (quoting

Porter, 534 U.S. at 525). 

Exhaustion of administrative remedies under 42 U.S.C. 

§ 1997e(e) is an affirmative defense. Valoff, 422 F.3d at 936. 

"[D]efendants have the burden of raising and proving the absence

of exhaustion." Id. 

Relevant evidence in so demonstrating would

include . . . regulations, and other official

directives that explain the scope of the

administrative review process; documentary or

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testimonial evidence from prison officials who

administer the review process; and information

provided to the prisoner concerning the operation

of the grievance procedure in this case.

Brown, 422 F.3d at 937. As noted, if the court concludes an

inmate has failed to exhaust his administrative remedies, the

proper remedy is dismissal without prejudice. Stewart v. Korsen,

No. 11–15295, 2012 WL 767347, at *1 (9th Cir. Mar. 12, 2012). 

II. The Grievance Process

Pursuant to the administrative rules of ODOC that govern

inmate grievances, inmates at ODOC facilities are required to

communicate with "line staff" verbally or in writing to resolve a

dispute before filing a grievance. If communication with line

staff does not resolve an inmate's issue, the inmate may then

file a grievance form within 30 days of the incident or conflict. 

Inmates must attach copies of their previous communications with

line staff to their grievance forms to demonstrate that they

attempted to resolve the conflict informally before filing their

grievance. If an inmate is not satisfied with the response to

his or her grievance, the inmate may file an appeal to the

functional unit manager by completing a grievance appeal form and

filing it with the grievance coordinator within 14 days from the

time the response was sent to the inmate. The grievance

coordinator then assigns the grievance a number and records it in

the grievance log.

An inmate may appeal the functional unit manager's decision

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by submitting to the assistant director an appeal form, the

original grievance, attachments, and staff responses. The

grievance coordinator then date-stamps and logs the appeal. The

decision of the assistant director is final and is not subject to

further review.

ODOC informs inmates of the grievance procedure at their

mandatory Admission and Orientation class held when inmates first

arrive at a facility. In addition, information about the

procedure is contained in the inmate handbook. Inmates may

obtain grievance forms and instructions from any housing-unit

officer.

III. Plaintiff’s First Claim

In his First Claim Plaintiff alleges Defendants violated his

right under the Eighth Amendment to be free from deliberate

indifference when they (1) circumvented the safety switch on the

tortilla machine that Plaintiff and other inmates operated, 

(2) failed to post any sign or to hold any training sessions with

inmates advising them of the risk of operating the tortilla

machine with the circumvented safety switch, and (3) refused to

keep the doors ajar to the room containing the tortilla machine

to allow gas fumes to dissipate.

The record reflects Plaintiff submitted two nonduplicative,

grievances relevant to his First Claim. 

Plaintiff submitted his first grievance (TRCI.2012.08.088)

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related to his First Claim on August 21, 2012. Plaintiff stated

he had presented a document to Food Service Manager Sue Washburn

in which Captain Lytle stated one of the two doors in the

tortilla room should remain ajar, but Washburn refused to permit

inmates to keep one of the doors ajar. Plaintiff also noted his

shirt caught fire on August 21, 2012, while he was working in the

tortilla room. Decl. of Arnell Eynon, Ex. 4 at 5. On 

September 17, 2012, Defendant Gary Hall responded to Plaintiff’s

grievance .088 and stated the doors in the tortilla room were not

propped open for security reasons, safety features such as sleeve

protectors and heat-resistant gloves are available for inmates in

the tortilla room, and ODOC staff members performed their duties

in accordance with ODOC rules. Hall also advised Plaintiff that

he was entitled to further review through the Grievance Review

System. Id. at 5. Plaintiff filed a first appeal on 

September 21, 2012. On November 16, 2012, Superintendent Steve

Franke responded to Plaintiff’s appeal and advised Plaintiff that

Franke concluded ODOC staff had performed their duties in

accordance with ODOC rules, policies, and procedures. Eynon

Decl., Ex. 4 at 2. Franke also advised Plaintiff that he was

entitled to further review through the Grievance Review System. 

Plaintiff did not file a further appeal and, therefore, did not

exhaust the grievance procedure with respect to grievance .088. 

Accordingly, the Court concludes Plaintiff has not exhausted his

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administrative remedies with respect to that portion of his First

Claim related to Defendants’ failure to prop open one of the

doors to the room containing the tortilla machine in order to

vent gas fumes.

On August 21, 2012, Plaintiff submitted his second grievance

(TRCI.2012.08.103) related to his First Claim. Plaintiff stated

Defendants circumvented the safety switch on the tortilla machine

and did not post signs or hold training sessions for inmates to

operate the tortilla machine without a properly functioning

safety switch. On November 5, 2012, Assistant Physical Plant

Manager Jody Finck responded to Plaintiff’s grievance .103 and

advised Plaintiff that ODOC had purchased and installed a new

switch on the tortilla machine, which was at that time operating

within the manufacturer’s specifications. Eynon Decl., Ex. 5 at

2. Finck acknowledged Plaintiff’s additional request to post a

sign, but she did not indicate any sign would be posted. 

Plaintiff did not appeal Finck’s response. Plaintiff asserts in

his Response to Defendants’ Motion that he was not required to

file any further appeal in order to exhaust his administrative

remedies as to grievance .103 because he obtained the relief that

he sought. See, e.g., Ross v. Cty of Bernalillo, 365 F.3d 1181,

1186-87 (10th Cir. 2004)(After “a prisoner has won all the relief

that is available under the institution's administrative

procedures, his administrative remedies are exhausted. Prisoners

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are not required to file additional complaints or appeal

favorable decisions in such cases. When there is no possibility

of any further relief, the prisoner's duty to exhaust available

administrative remedies is complete.”). See also Brady v.

Attygala, 196 F. Supp. 2d 1016, 1021 (C.D. Cal. 2002)(“It would

be a strange rule that an inmate who has received all he expects

or reasonably can expect must nevertheless continue to appeal,

even when there is nothing to appeal.”) (quotation omitted);

Gomez v. Winslow, 177 F. Supp. 2d 977, 985 (N.D. Cal. 2001)

(“Because [the plaintiff] had, in essence, ‘won’ his inmate

appeal, it would be unreasonable to expect him to appeal that

victory before he is allowed to file suit.”).

Defendants assert Plaintiff did not receive all of the

relief he sought in grievance .103 because even though Defendants

installed a new switch on the tortilla machine, the response to

Plaintiff’s grievance did not state Defendants would not alter

the safety switch on the new machine at some point in the future

nor indicate they would put up a sign. The Court finds

Defendants’ argument unpersuasive. 

In grievance .103 Plaintiff was concerned with the fact that

Defendants circumvented the kill switch on the tortilla machine,

and his request for a sign or for training was related only to

the fact that the switch had been circumvented. By installing an

entirely new and functional kill-switch, the need for a sign

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and/or training was moot. Thus, Plaintiff essentially won the

relief that he sought in grievance .103. The Court, therefore,

concludes Plaintiff was not required to appeal or to take any

further steps with respect to grievance .103. Accordingly, the

Court concludes Plaintiff exhausted his administrative remedies

with respect to that portion of his First Claim related to

Defendants’ circumvention of the kill-switch on the tortilla

machine.

In summary, the Court concludes with respect to Plaintiff’s

First Claim for violation of the Eighth Amendment that Plaintiff

has not exhausted his administrative remedies with respect to

Defendants’ failure to prop open one of the doors to the room

containing the tortilla machine, but he has exhausted his

administrative remedies with respect to Defendants’ circumvention

of the kill-switch on the tortilla machine. 

Accordingly, the Court grants in part and denies in part

Defendants’ Motion to Dismiss Plaintiff’s First Claim.

IV. Plaintiff’s Second Claim

In his Second Claim Plaintiff alleges Defendants violated

his right to due process under the Fourteenth Amendment when 

(1) on September 11, 2012, Defendant Hall provided false and

misleading statements to Risk Management Inmate Injury Fund

Claims regarding Plaintiff’s August 21, 2012, injury and (2) on

October 29, 2012, Defendant Bridgett Whelan made false

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declarations to SAIF Corporation regarding Plaintiff’s August 21,

2012, injury.

Plaintiff filed three relevant grievances to his Second

Claim. In his grievance TRCI.2012.12.060 dated December 16,

2012, Plaintiff asserted on September 11, 2012, that Defendant

Hall provided false and misleading statements to Risk Management

Inmate Injury Fund Claims regarding Plaintiff’s August 21, 2012,

injury. On December 26, 2012, Plaintiff’s grievance .060 was

denied for Plaintiff’s failure to comply with Oregon

Administrative Rule 291–109–0150(2), which requires the grievance

coordinator to receive a grievance “within [thirty] calendar days

of the date of the incident giving rise to the grievance.” 

Plaintiff asserts in his Response that his deadline to submit his

grievance should not have begun to run until after Plaintiff

discovered Hill’s alleged false statements “on or about 

November 15, 2012.” Plaintiff, however, did not file any

response to or appeal of grievance .060 based on that assertion

nor did he provide any other basis for challenging the denial. 

Plaintiff, therefore, did not exhaust the grievance procedure

with respect to grievance .060. Accordingly, the Court concludes

Plaintiff has not exhausted his administrative remedies with

respect to that portion of his Second Claim based on Hill’s

alleged false statements to Risk Management.

In grievance numbers TRCI.2012.12.053 and TRCI.2012.12.102

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dated December 16 and December 27, 2012, respectively, Plaintiff

asserted Defendant Whelan made false declarations to SAIF

Corporation on October 29, 2012, regarding Plaintiff’s August 21,

2012, injury. On December 19, 2012, Plaintiff’s grievance .053

was denied and on January 4, 2012, Plaintiff’s grievance .102 was

denied. Both grievances were denied based on Plaintiff’s failure

to comply with Oregon Administrative Rule 291–109–0150(2). 

Plaintiff asserts in his Response that his deadline to submit his

grievance should not have begun to run until after Plaintiff

discovered Whelan’s alleged false statements “on or about

November 15, 2012.” Plaintiff, however, did not file any

response to or appeal of grievances .053 and .102 based on that

assertion nor did he provide any other basis for challenging the

denial. Plaintiff, therefore, did not exhaust the grievance

procedure with respect to grievances .053 and .102. The Court,

therefore, concludes Plaintiff has not exhausted his

administrative remedies as to his Second Claim. 

Accordingly, the Court grants Defendants’ Motion to Dismiss

Plaintiff’s Second Claim for failure to exhaust administrative

remedies.

V. Plaintiff’s Third Claim

In his Third Claim Plaintiff alleges Defendants violated his

First Amendment rights when they retaliated against him for

submitting various grievances by sending Plaintiff to segregation

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“on trumped up charges” and by moving Plaintiff to a cell with a

dangerous inmate.

On June 3, 2013, Plaintiff filed a discrimination complaint

with ODOC asserting Defendants were discriminating against

Plaintiff based either on his race or his religion because they

denied Plaintiff’s request for a cell move before Plaintiff had

90 days of conduct free of disciplinary actions (clear conduct). 

Plaintiff asserted he had witnessed “upwards of 20 in-unit cell

changes for white and Hispanic inmates; many of which were

requested and granted within 1 or 2 days.” Eynon Decl., Ex. 10

at 2.

On August 20, 2013, Superintendent Taylor responded to

Plaintiff that “ODOC acted in accordance with ODOC Rules” when

they refused to move Plaintiff to another cell before Plaintiff

had 90 days of clear conduct. Taylor also advised Plaintiff that

he did not find Plaintiff was treated differently than other

inmates. Finally, Taylor advised Plaintiff he was “entitled to

further review by the Inmate Discrimination Complaint Review

Committee” and informed Plaintiff how to obtain review by that

Committee. Eynon Decl., Ex. 10 at 1. 

Plaintiff did not request further review from the Inmate

Discrimination Complaint Review Committee. Plaintiff, therefore,

did not exhaust the administrative procedure with respect to his

discrimination complaint. The Court, therefore, concludes

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Plaintiff has not exhausted his administrative remedies as to his

Third Claim. 

Accordingly, the Court grants Defendants’ Motion to Dismiss

Plaintiff’s Third Claim for failure to exhaust administrative

remedies.

CONCLUSION

For these reasons, the Court GRANTS in part and DENIES in

part Defendants' Unenumerated Rule 12(b) Motion (#36) to Dismiss. 

Accordingly, the Court DISMISSES without prejudice Plaintiff’s

Second and Third Claims as well as that portion of Plaintiff’s

First Claim regarding Defendants’ failure to prop open one of the

doors to the tortilla-machine room. This matter shall proceed

only as to that portion of Plaintiff’s First Claim related to

Defendants’ circumvention of the safety switch on the tortilla

machine.

IT IS SO ORDERED.

DATED this 10th day of July, 2015.

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

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