IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

MARLIN BRANDT POHLMAN, 

Plaintiff, 

v. 

KEVIN HORMANN, COLLETT PETERS, 

R. LADEBY, C. COLEMAN, 

W. BAYSINGER, C. OLSON, C. DIGULIO, 

D. FUZI, J. SMITH, 

Defendants. 

PAPAK, Magistrate Judge: 

3: 14-cv-1483-PK 

OPINION AND ORDER 

Plaintiff Marlin Brandt Pohlman filed this pro se action in Jonna pauper is on September 

17, 2014. This comi has federal-question jurisdiction over Plaintiffs claims pursuant to 28 

U.S.C. § 1331. On August 4, 2015, I entered an Order (#72) granting in part and denying in part 

Defendants' Motion for Partial Summary Judgment (#60) and ordering Plaintiff to strike Claim 1 

from his Proposed Amended Complaint (#3 7-1 ). Plaintiff subsequently filed a Second Amended 

Complaint (#87) and a Motion for Reconsideration (#76) of the court's August 4, 2015 Order. 

On September 30, 2015 I entered an Order (#92) granting in pati and denying in part 

Plaintiffs Motion for Reconsideration and directing Plaintiff to show cause why Claim 1 of his 

Proposed Amended Complaint (#37-1) should not be dismissed for failure to exhaust 

administrative remedies. Now before the court is Plaintiffs Response (#94, #95) to the Order to 

Show Cause. For the reasons provided below, Plaintiff has failed to show that Claim 1 of his 

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Proposed Amended Complaint should not be dismissed for failure to exhaust administrative 

remedies. Consequently, Claim 1 is dismissed. 

DISCUSSION 

In light of my duty to liberally construe prose filings, I now construe Claim 1 of 

Plaintiffs Proposed Amended Complaint as alleging the liability of Officers Wilber and Hanis 

for Plaintiffs April 25, 2014 injury. See September 30, 2015 Order (#92); see also Plf.'s Resp. to· 

Order to Show Cause 2 (#95) (alleging the negligence of Officers Wilber and Harris in relation 

to Plaintiffs injury). 1 However, Plaintiff has failed to show that he ever initiated-let alone 

exhausted-his administrative remedies regarding the conduct of Officers Wilber and Harris in 

relation to Plaintiffs injury. 

Plaintiff contends that he was excused from exhausting his administrative remedies as to 

Claim 1 because upon reporting his injury to Oregon Department of Corrections ("ODOC"), 

Plaintiff was instructed by ODOC employees to submit an iumate communication fonn 

regarding the matter. Plaintiff seems to contend that the ODOC's failure to instruct him to file a 

formal grievance rather than an iumate communication form rendered his administrative 

remedies effectively unavailable. I disagree. The instruction to file an iumate communication 

form was proper. Indeed, it was the necessary first step to exhausting Plaintiffs administrative 

remedies. See Or. Admin. R. 291-109-0140 (stating that the formal grievance procedure is 

1 Plaintiff asserts all of his claims under 42 U.S.C. § 1983. See Second Am. Comp!. 2 (#87); see 

also Proposed Am. Comp!. 2, 13 (#37-1) (alleging negligence and 8th Amendment violations in 

Claim 1 ). However, negligence is not actionable under § 1983 in the prison context. See Farmer 

v. Brennan, 511 U.S. 825, 835-36 n. 4, (1994); Woodv. Housewright, 900 F.2d 1332, 1334 (9th 

Cir.1990); Sheppard v. Jacquez, No. C 09-02820 JW (PR), 2009 WL 3400900, at * 1 (N.D. Cal. 

Oct. 19, 2009). "The applicable standard is one of deliberate indifference to inmate health or 

safety under the Eighth Amendment .... " Sheppard, 2009 WL 3400900, at * 1. I therefore 

construe Claim 1 as an Eighth Amendment Claim. See Bernhardt v. Los Angeles Cnty., 339 F.3d 

920, 925 (9th Cir. 2003) (citation omitted) ("Courts have a duty to construe pro se pleadings 

liberally, including pro se motions as well as complaints."). 

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available only after an inmate is "unable to resolve an issue through informal communications"). 

Thus, the ODOC's instrnction to file an inmate communication form actually helped Plaintiff 

navigate the ODOC grievance process; it did not render his administrative remedies effectively 

unavailable. 

Plaintiff next argues that he was excused from exhausting his administrative remedies as 

to Claim 1 because ODOC employees and inmates inaccurately informed Plaintiff that he had 

properly filed a fotmal grievance fotm, identified as DCRi\12014-05-001. However, DCRM 

2014-05-001 did not pertain to Officer Wilber, Officer HatTis, or the events leading to Plaintiff's 

injury. See Geils Deel. Ex. 4, at 2 (#61 ). Rather, the grievance merely alleged that Officer Smith 

ignored Plaintiff's medical complaints and threatened to retaliate against Plaintiff. See id. Thus, 

any purported misrepresentations concerning the propriety of DCRi\1 2014-05-001 are 

immaterial. 

Plaintiff futther argues that Officer Smith's threats of retaliation excused him from 

exhausting his administrative remedies regarding Claim 1. I disagree. On or around April 27, 

2014, Officer Smith purportedly threatened to transfer Plaintiff to another prison if Plaintiff 

continued to complain about his injury. See Geils Deel. Ex. 4, at 2 (#61); Pohlman Deel. ii 5 

(#96). Plaintifffutther alleges that Defendants carried out the retaliatory transfer by moving him 

to Snake River CotTectional Institution on August 12, 2014. See Geils Deel. Ex. 7, at 2-3 (#61); 

Pohlman Deel. ii 28 (#69). According to Plaintiff, Officer Smith's threats of retaliation rendered 

his administrative remedies effectively unavailable. In suppott, Plaintiff cites Nunez v. Duncan, 

591F.3d1217 (9th Cir. 2010) and Sapp v. Kimbrell, 623 F.3d 813 (9th Cir. 2010). Both cases 

are inapposite. 

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Nunez and Sapp stand for the proposition that exhaustion is not required where prison 

officials have prevented a plaintiff from utilizing prison grievance procedures such that the 

plaintiff's administrative remedies were effectively unavailable. See Nunez, 591 F.3d at 1224-26; 

Sapp, 623 at 822-23. However, that is not the case here. Officer Smith's alleged threats did not 

dissuade or otherwise prevent Plaintiff from using the prison grievance process. See Sapp, 623 

at 823 (holding that the exception is applicable where a prison official thwarts the plaintiff's 

attempts to exhaust his administrative remedies). Plaintiff continued to extensively grieve his 

complaints after Officer Smith's purported threats and even after the purported retaliatory 

transfer. See generally Geils Deel. Ex. 4, at 2 (#61). Simply put, Officer Smith's purported 

threats did not erect a barrier to Plaintiff's ability to exhaust his administrative remedies. 

Plaintiff additionally argues that he was excused from exhausting his administrative 

remedies regarding Claim 1 because he did not initially understand the severity of his injury. 

Again, Plaintiffs argument is misplaced. Even after Plaintiff undisputedly became aware of the 

full extent of his injury, there is no evidence that he never initiated, let alone exhausted, a 

grievance regarding the conduct of Officers Wilber or Harris. Moreover, Plaintiff's grievance in 

Claim 1 pertains to the conduct of the officers in allowing Plaintiff to become injured, not the 

severity of his injury. Plaintiff fmiher contends Federal Rule of Civil Procedure 60 excused him 

from exhausting his administrative remedies in light of his limited knowledge about the extent of 

his injury. However, that rule pertains to relief from judgments and is inapplicable to exhaustion 

of administrative remedies. See id. 

In sum, Plaintiff has failed to show that he exhausted his administrative remedies with 

respect to Claim 1 of his Proposed Amended Complaint. Plaintiff has also failed to show that he 

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was excused from exhausting his administrative remedies. Thus, Claim 1 must be dismissed. 

See 42 U.S.C. § 1997e(a); see also 28 U.S.C. § 1915(e)(2). 

CONCLUSION 

For the reasons provided above, Claim 1 is DISMISSED. That claim has already been 

stricken from the operative pleading, Plaintiffs Second Amended Complaint (#87). Plaintiff 

therefore is not required to file an additional amended or supplemental complaint. Rather, this 

case will proceed on Plaintiffs Second Amended Complaint (#87). Additionally, Plaintiffs 

alternative request for the cou1i to ce1iify for appeal its grant of partial summary judgment is 

DENIED. See Plf.'s Resp. 5-7 (#94). 

The stay as to Plaintiffs Motions to Compel (#38), (#56), (#57), (#63), (#64); Plaintiffs 

Motions to Add Supplemental Parties and Motions for Joinder (#52), (#53); Plaintiffs Motions 

for Summary Judgment (#39), (#40), (#41); and Plaintiffs Motion for Appointment of Counsel 

(#88) is lifted. Those motions are fully briefed and under advisement. The stay as to Plaintiffs 

Motion for a Preliminary Injunction (#89) is also lifted. Defendants' response to that motion and 

Defendants' responses to Plaintiffs other Motions for Injunctive Relief (#98, #100) are due on 

January 15, 2016. Plaintiffs replies to Defendants' response are due on Febrnary 2, 2016. 

Plaintiffs Motions for Iajunctive Relief (#89, #98, # 100) will go under advisement on February 

3, 2016. Defendants' Motion for Extension of Time to Respond to Plaintiffs Emergency Motion 

for Injunctive Relief (#99) is denied as moot. Plaintiff is prohibited from filing any additional 

motions without first obtaining permission from the court. 

II 

II 

II 

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Finally, the stay of the deadline for Defendants to file an answer to Plaintiffs Second 

Amended Complaint (#87) is also lifted. Defendants' answer is due on January 29, 2016. 

Dated this 29th Day of December, 2015. 

United States Magistrate Judge 

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