1 – OPINION AND ORDER 

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

MICHAEL A. LUJAN,

No. 2:14-cv-01640-MO

 Plaintiff,

OPINION AND ORDER

 v. 

LINDA A. GRUENWALD, ET AL., 

 Defendants.

MOSMAN, J., 

Plaintiff and Defendants have made cross-motions for summary judgment. For the 

reasons stated below, I GRANT Defendants’ Motion for Summary Judgment [134] and DENY 

Plaintiff’s Cross Motion for Summary Judgment [143]. 

Background 

Plaintiff, a prisoner, brings a civil rights action with eight claims. The first four are 

claims alleging Defendants violated Plaintiff’s access to the courts. First, he claims Defendants 

Sharon Justus, Stephanie Martin, John Myrick, Steven Franke, and Michael Gower violated his 

First Amendment and Fourteenth Amendment right of access to the courts by refusing to provide 

him with copies and mailing services to pursue his state post-conviction relief action. Second, he 

claims Defendants Justus, Martin, and Myrick violated his First Amendment and Fourteenth 

Amendment right of access to the courts by erecting barriers to deliberately interfere with his 

right to file civil suit. Third, he claims Defendants Justus, Martin, and Myrick violated his 

Fourteenth Amendment Equal Protection rights by failing to provide him with copies and 

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mailing services to pursue his court actions because he was indigent. Fourth, he claims

Defendant Justus and Martin violated his Fourteenth Amendment liberty interests by denying 

him the benefit of OR. ADMIN. R. § 291-139-0040. 

Plaintiff’s fifth and sixth claims are Eighth Amendment claims for inadequate medical 

care. Specifically, his fifth claim is that Defendants Linda Gruenwald, Dr. Daniel Dewsnup, and 

Dr. Steven Shelton violated his Eighth Amendment rights by acting with deliberate indifference 

to his serious medical needs. Sixth, he claims that Defendants Gruenwald and Dewsnup violated 

his Eighth and Fourteenth Amendment rights by inadequately treating him and causing him to 

fall from his top bunk and sustain further injury to his back. 

His seventh claim is against Defendant Gruenwald for retaliating against him by 

discontinuing his lower bunk restriction. His eighth claim is that Defendants Justus and Martin 

violated various state criminal laws. 

Defendants attack the first four claims on the merits. They attack the fifth and sixth 

claims for lack of exhaustion; the seventh claim on the merits; and the eighth claim as beyond 

the scope of a civil suit. Defendants also make arguments regarding sovereign immunity, 

supervisory liability, and qualified immunity. 

Legal Standard 

Summary judgment is proper “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.” FED. R. CIV. P.

56(a). The initial burden for a motion for summary judgment is on the moving party to identify 

the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 

(1986). Once that burden is satisfied, the burden shifts to the non-moving party to demonstrate, 

through the production of evidence listed in Fed. R. Civ. P. 56(c)(1), that there remains a 

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“genuine issue for trial.” Celotex, 477 U.S. at 324. The non-moving party may not rely upon the 

pleading allegations. Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir. 1995) 

(citing FED. R. CIV. P 56(e)). All reasonable doubts and inferences to be drawn from the facts are 

to be viewed in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. 

Zenith Radio Corp., 475 U.S. 574, 587 (1986). 

Discussion

1. Official Capacity 

Defendants argue Plaintiff’s claims against individual defendants in their official capacity 

are barred by the Eleventh Amendment. Plaintiff’s amended complaint requests monetary, 

injunctive, and declaratory relief. While Defendants are correct that monetary relief would be 

inappropriate, Plaintiff may pursue his claims for injunctive and declaratory relief against 

individuals in their official capacity. ACS of Fairbanks, Inc. v. GCI Commc'n Corp., 321 F.3d 

1215, 1217 (9th Cir. 2003) (where a party “seeks injunctive and declaratory relief . . . the relief 

requested is permissible under Ex parte Young”). 

2. First, Second, Third, and Fourth Claims – Access to Courts 

Plaintiff’s first, second, third, and fourth claims all address access to the courts and are 

rooted in the prison’s refusal to provide Plaintiff with free photocopies and mailing services. 

a. Claims 1 and 2 

The Ninth Circuit has traditionally differentiated between two types of access to court 

claims: those involving prisoners’ right to affirmative assistance and those involving prisoners’ 

rights to litigate without active interference. Silva v. Di Vittorio, 658 F.3d 1090, 1101–02 (9th 

Cir. 2011). The right to affirmative assistance does not apply in ordinary civil cases, but does 

apply in collateral attacks to sentences. Id. (limiting assistance to that needed “in order to attack 

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[prison] sentences, [either] directly or collaterally, and in order to challenge the conditions of 

their confinement”)(citation omitted). 

Plaintiff alleges two separate injuries from the prison’s actions. The first injury is failure 

of the collateral challenge to his sentence. The second is failure of the civil claim against his 

attorney. Plaintiff has a right to affirmative assistance with his collateral challenge. Even with 

this heightened level of protection, his claim nonetheless fails. The right of assistance requires

the state must provide prisoners either with counsel or with sufficient resources to proceed pro 

se. United States v. Wilson, 690 F.2d 1267, 1272 (9th Cir. 1982) (the offer of court-appointed 

counsel satisfies the obligation to provide meaningful access to the courts, even where detainee 

is denied pretrial access to a law library). Here, Plaintiff had counsel for his collateral attack

providing him with sufficient access to the courts and so the claims rooted in his collateral attack 

must fail. Smith v. Cty. of Santa Clara, 223 F. App’x 701, 702 (9th Cir. 2007). 

As to the claims addressing the dismissal of Plaintiff’s ordinary civil case, Plaintiff only 

has a right to be free from active interference by prison officials. “This right does not require 

prison officials to provide affirmative assistance in the preparation of legal papers, but rather 

forbids states from erecting barriers that impede the right of access of incarcerated persons.” 

Silva, 658 F.3d at 1102–03 (internal quotations omitted). 

The acts of the prison officials in this case do not rise to the level of active interference. 

Plaintiff bases his claims in the denial of free copies and mailing services. The active 

interference claims that have been recognized by courts are far more serious violations including 

instances where prison officials repeatedly transferred a prisoner to hinder his ability to litigate 

or where prison officials seized and withheld legal files. See Silva 658 F.3d at 1103. Because 

Plaintiff’s allegations do not indicate interference but merely a lack of assistance, summary 

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5 – OPINION AND ORDER 

judgment on Defendants’ motion is appropriate. I therefore GRANT Defendant’s motion for 

summary judgment as to Plaintiff’s first and second claims. 

a. Third Claim – Violation of the Equal Protection Clause 

In his third claim, Plaintiff argues the prison’s failure to provide him with free copies and 

mailing services violates the Equal Protection Clause. In Rodriguez v. Cook, the Ninth Circuit 

addressed a similar equal protection challenge to a prison’s failure to provide more than five free 

stamps to an indigent prisoner who sought to write his attorney. Rodriguez v. Cook, 169 F.3d 

1176, 1179 (9th Cir. 1999). The court held the measure should be presumed “constitutional 

unless it is based upon a suspect classification or impinges upon a fundamental right” and noted 

“indigent prisoners are not a suspect class” Id. (internal citations omitted). The Ninth Circuit 

proceeded to find no fundamental right was implicated, recognizing “although the Supreme 

Court [has] held that prisoners have a constitutional right of meaningful access to the courts, a 

prison system need not provide maximum or even optimal level of access. Other courts have 

upheld regulations which impose reasonable costs on persons who want to sue.” Id. The right to 

meaningful access to the courts “does not require unlimited state-subsidized communication with 

counsel, but only that prisoners be able to present their grievances to the courts . . . . His claim 

for more stamps does not implicate the right to access the courts but constitutes an attack on the 

particular methodology chosen by Oregon to fulfill the constitutional requirement of access to 

the courts.” Id. at 1180. 

If neither a fundamental interest nor a protected class is involved, I review the prison 

regulation under the rational basis standard and uphold the regulation “if [it was] rationally 

related to a legitimate government interest.” Taylor v. Delatoore, 281 F.3d 844, 849 (9th Cir. 

2002). The regulation that Defendants followed serves to balance a prisoner’s access to the 

courts with the “extraordinary costs of frivolous prisoners suits and minimize such costs to the 

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6 – OPINION AND ORDER 

taxpayers.” Rodriguez, 169 F.3d at 1181. I therefore GRANT Defendants’ Motion for Summary 

Judgment as to Plaintiff’s third claim. 

b. Fourth Claim – Violation of the Fourteenth Amendment 

Plaintiff contends the prison violated its own regulations by refusing to make 

photocopies. “Section 1983 affords redress only for violation of rights guaranteed by federal 

law. Violations of state law or regulations are not cognizable under § 1983.” Canell v. Bradshaw, 

840 F. Supp. 1382, 1387 (D. Or. 1993) aff’d, 97 F.3d 1458 (9th Cir. 1996). As an access to the 

courts argument, Plaintiff’s claim is addressed above. As an independent claim, it states no 

cognizable grounds for relief under section 1983. I therefore GRANT Defendants’ Motion for 

Summary Judgment and dismiss Plaintiff’s fourth claim. 

3. Fifth and Sixth Claims - Exhaustion of Administrative Remedies. 

Defendants claim Plaintiff’s fifth and sixth claims have not been properly exhausted. An 

inmate must exhaust all available administrative remedies prior to filing a complaint under 

section1983. Porter v. Nussle, 534 U.S. 516, 524 (2002). Ultimately, failure to exhaust 

administrative remedies is an affirmative defense on which Defendants bear the burden of proof. 

Jones v. Bock, 549 U.S. 199, 212 (2007). 

a. Fifth Claim

Plaintiff’s fifth claim centers on an Eighth Amendment violation by prison personnel who 

ignored his medical needs. Plaintiff filed six separate grievances on the issue. His first grievance 

made it up to a second appeal on July 8, 2014. While it was being considered, Plaintiff filed a 

tort claim notice on August 20, 2014. Pursuant to prison policy, the grievance process ceased and 

the grievance was returned to Plaintiff. OAR § 291-109-0160(4). His second grievance failed to 

meet the prison’s specificity requirements. Given a chance to resubmit it, Plaintiff failed to do so 

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7 – OPINION AND ORDER 

within the required time period. Plaintiff’s third and fourth grievances were denied and he did 

not appeal. Plaintiff’s fifth and sixth grievances were interrupted by his filing of the initial 

complaint. 

b. Sixth Claim 

Plaintiff’s sixth claim is an Eighth Amendment claim for inadequate medical treatment. He 

filed three grievances. The first grievance, filed in December 2013, was denied as untimely. The 

second grievance was filed in March 2014. The prison claims the grievance was being processed in 

August 2014 when Plaintiff filed his notice of tort claim. The grievance was returned to Plaintiff on 

September 3, 2014, before the result of Plaintiff’s second appeal was determined. Plaintiff’s third 

grievance was denied for naming more than one Department of Correction (“DOC”) employee. He 

did not fix it and resubmit it within the time allowed. 

c. Failure to Exhaust 

On the surface, Plaintiff failed to exhaust his claims. It is uncontested the grievances were 

originally returned due to Plaintiff’s filing of a notice of tort. When grievances are returned 

because of such a notice of tort claim, the grievance process is not exhausted. See Randall v.

DiGiulio, No. 3:12-cv-02277-HU, 2013 WL 6498759, at *3 (D. Or. Dec. 9, 2013) (“While 

plaintiff was unable to appeal his grievances because they were returned because he filed a tort

claim, this does not excuse his failure to exhaust administrative remedies.”); Vega v. Bell, et al., 

No. 2:13-cv-00931-HU at *16-17 (D. Or. Dec. 3, 2014) (same); Lovelady v. Beamer, No. 2:14-

CV-00769-KI, 2014 WL 7228870, at *2-3 (D. Or. Dec. 17, 2014) (“Prematurely ending the 

administrative process does not satisfy the PLRA exhaustion requirement, and does not 

demonstrate the unavailability of administrative relief.”) 

However, Plaintiff’s conversation with a grievance coordinator calls for a closer analysis. 

Plaintiff was told by an administrator on September 23, 2014, in response to his question of 

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8 – OPINION AND ORDER 

whether the claims were exhausted, “Yes, you have exhausted the grievance process for these 

two complaints.” (Exhibit 14). The Ninth Circuit has held a prisoner need not press one once he 

has “been reliably informed by an administrator that no remedies are available.” Brown v. 

Valoff, 422 F.3d 926, 935 (9th Cir. 2005). While in isolation the comment suggests exhaustion, 

when viewed in light of all of the circumstances of the case, it is clear that the comment was 

immaterial. First, the grievance coordinator spoke only after Plaintiff had filed his notice of tort 

claim. Whether or not the comment discouraged Plaintiff from pursuing further appeals is 

irrelevant because no further appeals were available to him after he filed the notice of tort. At 

that point, he ended the grievance process. Furthermore, even if he had not ended the grievance 

process, it is clear that the coordinator’s comment did not dissuade him from pursuing his 

grievance as he continued to file more. After the September 23, 2014 comment, Plaintiff filed 

grievances addressing the same issues on November 15, November 20, and December 1, 2014. 

Because Plaintiff failed to exhaust his claims before filing his notice of tort claim, I 

GRANT Defendants’ Motion for Summary Judgment as to Plaintiff’s claim 5 and 6. 

d. Seventh Claim – Retaliation 

Plaintiff brings a retaliation claim against Defendant Gruenwald, a DOC nurse. Plaintiff 

had a lower bunk restriction assigned for his comfort and in response to his complaints of back 

pain and sciatica. Defendant Gruenwald removed the restriction on June 6, 2014, after a visit 

with the Plaintiff. Defendant Gruenwald claims it was because during that visit, she became 

aware Plaintiff had been moved to the Disciplinary Segregation Unit and assigned a bottom 

bunk. Plaintiff claims it was because he informed her he was pursuing grievances against her. 

To state a claim for retaliation under the First Amendment, a prisoner must allege the 

following five elements: (1) a state actor took an adverse action against him (2) because of (3) 

the prisoner’s protected conduct, and that the action taken against him (4) chilled the prisoner’s 

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9 – OPINION AND ORDER 

exercise of his First Amendment Rights and (5) did not reasonably advance a legitimate 

correctional goal. Silva, 658 F.3d at 1104 (9th Cir. 2011). 

Plaintiff has failed to show Defendant Gruenwald’s actions did not advance a legitimate 

penological goals. Defendant Gruenwald’s removal of the restriction served as an efficient 

administrative measure, because Plaintiff no longer had need of it. Even if defendant had an 

impermissible reason for the adverse action, if a separate, permissible reason exists, the 

defendant will not be liable. See Hartman v. Moore, 547 U.S. 250, 260 (2006) (noting that if 

there is a finding that retaliation was not the but-for cause of the action complained of, the claim 

fails for lack of causal connection between unconstitutional motive and resulting harm, despite 

proof of some retaliatory animus in the official’s mind). Because Defendant Gruenwald’s 

actions served a legitimate penological goal, I GRANT Defendants’ Motion for Summary 

Judgment and dismiss Plaintiff’s seventh claim 

e. Eight Claim - Criminal Liability

Plaintiff’s Eighth Claim alleges Defendants Justis and Martin violated state criminal law. 

Criminal statutes give no private rights of action. Where courts have “implied a private right of 

action under a criminal statute there was at least a statutory basis for inferring that a civil cause 

of action of some sort lay in favor of someone.” Chrysler Corp. v. Brown, 441 U.S. 281, 284 

(1979) (quotation and citation omitted). There is no such indication here. I GRANT summary 

judgment as to Plaintiff’s eighth claim. 

f. Supervisory Liability 

While the majority of Plaintiff’s claims have been dismissed on the merits, and thus could 

not support a supervisory liability claim, Plaintiff’s fifth and sixth claims are being dismissed for 

failure to exhaust. Since that decision does not address the existence of an underlying 

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10 – OPINION AND ORDER 

constitutional violation, it is possible that a plaintiff can fail to exhaust against one defendant, and 

yet still be able to maintain a claim against a supervisor for the underlying violation. 

Supervisory liability claims, like any other claims, must be exhausted. As the Supreme 

Court has repeatedly held, administrative exhaustion is not an optional step on the road to 

litigation: it is “mandatory,” and “unexhausted claims cannot be brought in court.” See e.g.

Jones, 549 U.S. at 211. No. 2:12-CV-02165-JAD, 2014 WL 1307454, at *5 (D. Nev. Mar. 28, 

2014). Whether exhaustion is obtained by addressing the underlying action, and thus could be 

satisfied by exhausting claims against a subordinate, or must be obtained by addressing the 

potential defendant depends on the state’s grievance system. In Jones, the Supreme Court found 

“exhaustion is not per se inadequate simply because an individual later sued was not named in 

the grievances.” Jones, 549 U.S. at 219. Rather, all that is required by the PLRA is 

“[c]ompliance with prison grievance procedures,” which vary by system. Id. at 218. Oregon’s 

rules focus on the “matter, action, or incident” rather than the person. OAR 291-109-140(d). 

“Matter, action, or incident[,]” in the context of supervisory liability, can be interpreted in one of 

two ways. Either it refers to the underlying incident (i.e. the constitutional violation performed 

by the underling), or it refers to the supervisor’s inaction. I view supervisor inaction as a separate 

matter, action, or incident, requiring a separate grievance. Plaintiff has brought no grievance 

pertaining to supervisory inaction in this case. Therefore, he has not met the exhaustion 

requirements of the PLRA. Any remaining supervisory liability claims are DISMISSED.

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11 – OPINION AND ORDER 

Conclusion 

For the reasons stated above, Plaintiff’s Motion for Summary Judgment [143] is 

DENIED and Defendants’ Motion [134] is GRANTED.

IT IS SO ORDERED.

DATED this 18th day of March, 2016. 

/s/ Michael W. Mosman 

MICHAEL W. MOSMAN

Chief United States District Court

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