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. 

P APAK, Magistrate Judge: 

3: l 4-cv-1483-PK 

OPINION AND 

ORDER 

Plaintiff prose Marlin Brandt Pohlman filed this action on September 17, 2014 against 

defendants Kevin Hormann, Colette Peters, R. Ladeby, C. Coleman, W. Baysinger, C. Olson, C. 

1 - OPINION AND ORDER 

Case 3:14-cv-01483-PK Document 72 Filed 08/04/15 Page 1 of 19
DiGulio, D. Fuzi, and J. Smith. By and through his complaint, Pohlman alleges the liability of 

each defendant under 42 U.S.C. § 1983 for violations of his First, Fifth, Eighth, and Fourteenth 

Amendment rights. This court has federal-question jurisdiction over Pohlman's claims pursuant 

to 28 U.S.C. § 1331. 

Now before the comt is Defendants' motion for pattial summary judgment (#60) as to 

Pohlman's claims against defendants Hormann, Peters, Ladeby, Coleman, Baysinger, and Olson. 

Defendants move on the grounds that plaintiff has failed to exhaust his administrative remedies 

for all but two of the claims in his complaint. I have considered the motion and all of the 

briefings, papers, and pleadings on file. For the reasons set forth below, Defendants' motion is 

granted in patt and denied in patt, and Pohlman's claims against defendants Ho1mann, Peters, 

Ladeby, Coleman, Baysinger, and Olson are dismissed. 

FACTUAL BACKGROUND 

I. The Parties 

Plaintiff Pohlman is an incarcerated person and has been in the custody of the Oregon 

Depattment of Corrections ("ODOC") since October 17, 2013. Declaration (#61) of Marian 

Geils ("Geils Deel."), 9if 3. Pohlman was housed at the Deer Ridge Conectional Institution 

("DRCI") from April 25, 2014 to August 12, 2014, and at the Snake River Correctional 

Institution ("SRCI") beginning on August 12, 2014. 1 Id., Att. 1. 

Defendant Kevin Hormann is the Assistant Superintendent of Security at DRCI. 

Defendant Peters is the Director of ODOC. Defendant Ladeby is the Food Services Manager at 

1

Pohlman's housing dates at DRCI are elsewhere noted as April 24, 2014 to July 1, 2014. 

Geils Deel., ii 3. However, those dates appear to be incotTect based on ODOC's record of 

Pohlman's housing histmy, and documentation of Pohlman's grievances. See Geils Deel., Att. 1. 

2 - OPINION AND ORDER 

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DRCI. Defendant Coleman is the Inmate Work Program Coordinator at DRCI. Defendant 

Baysinger is a Correctional Counselor at SRCI. Defendant Olson is the CotTections Food 

Services Coordinator at DRCI. Defendant DiGulio is a physician at DRCI. Defendant Fuzi is 

the Medical Services Manager at DRCI. Defendant Smith is a Correctional Officer at DRCI. 

II. Facts Underlying the Parties' Dispute2 

Pohlman's complaints arise from an injury he sustained on April 24, 2014 while in 

transport from Eastem Oregon Correctional Institution to DRCI. 3 Declaration ( #69) of Marlin 

Brandt Pohlman ("Pohlman Deel."), iJ 1. In his initial complaint, Pohlman raises several claims 

conceming his treatment after the injury. Complaint, #2, 5-7. Defendants concede that Plaintiff 

fully exhausted the grievance process for his claims with respect to defendants Smith, DiGulio, 

and Fuzi, involving failure to obtain medical treatment and denial of a low bunk and work 

restriction. Defendants' Motion (#60) for Partial Summary Judgment ("Defendants' Motion"), 2. 

Those claims are not at issue in Defendants' motion for partial summary judgment, and therefore 

I will not address the facts pertaining to those claims here. 

A. ADA Accommodation 

On July 25, 2014, Pohlman filed a grievance conceming defendant Olson's threatening 

and intimidating communication to him in the DRCI Kitchen, and requesting ADA 

2

Except where otherwise indicated, the following recitation constitutes my construal of 

the evidentiary record in light of the legal standard goveming motions for summaiy judgment 

under Federal Civil Procedure Rule 56. 

3

Both Pohlman and Defendants refer to the date of Pohlman's injury as April 24, 2014, 

though some of Pohlman's grievances refer to April 25, 2014 as the date of inju1y. E.g., Geils 

Deel., Att. 4 at 2; Att. 5 at 4. 

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accommodation for his kitchen work assignment. Geils Deel.,~ 16; Att. 5 at 18; Att. 6 at 1.4 

DRCI staff responded on August 5, 2014. Geils Deel., Att. 6 at 3. 

Pohlman appealed the response on August 6, 2014, but did not include all of the 

documentation required. Geils Deel., Att. 6 at 4, 5. The DRCI grievance coordinator 

nonetheless accepted the appeal on August 11, 2014 and notified Pohlman that additional 

information was needed to proceed. Id., Att. 6 at 5. 

Pohlman was transfened to SRCI on August 12, 2014. Geils Deel.,~ 17; Pohlman Deel., 

~28. 

On August 13, 2014, Pohlman sent the original grievance and grievance response to the 

DRCI grievance coordinator. Geils Deel., Att. 6 at 9. The DRCI grievance coordinator received 

the necessary additional documentation on August 19, 2014, and Pohlman's appeal proceeded. 

Id., Att. 6 at 6. 

Pohlman initiated this litigation on September 17, 2014. Complaint, #2. 

On October 8, 2014, DRCI Superintendent Tim Causey responded to Pohlman's appeal. 

Geils Deel., Att.6 at 11. Pohlman did not appeal the first level appeal response. Id.~ 18. 

B. Transfer to SRCI 

On August 15, 2014, Pohlman filed a grievance alleging that he was transported from 

DRCI to SRCI as "a reprisal" for reporting his transport injury and seeking treatment and ADA 

4

The Pohlman Declaration ( #69) includes many of the same attachments as the Geils 

Declaration (#61 ), but the numbering is either illegible or non-sequential, so I refer to the Geils 

Declaration for clarity and consistent numbering. 

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acconunodation. 5 Geils Deel., Att. 7 at 2-3. 

The SRCI grievance coordinator received the grievance on August 20, 2014, but it was 

"delayed while [sic] tried to resolve w/ inmate." Geils Deel., ii 22; Att. 7 at 2-3. The delay 

occurred because Pohlman sent an inmate conununication on August 14, 2014 to Eastside 

Institutions Administrator Steve Franke asking why he had been transferred. Geils Deel., ii 23; 

Att. 7 at 4. Franke responded to the letter on August 27, 2014. Geils Deel., Att. 7 at 5. 

The DRCI grievance coordinator received a copy of the grievance on October 2, 2014. 

Geils Deel., Att. 7 at 2-3. After the DRCI grievance coordinator confirmed that the handwritten 

note regarding the delay was from the SRCT grievance coordinator, she "restarted the grievance 

process." Id. ~24. 

The grievance was "referred out" for a response on October 21, 2014, but no response 

was provided. Geils Deel.,~ 25; Att. 7 at 6, 7. 

On December 2, 2014, Pohlman was informed that ODOC could not respond to his 

grievance due to his litigation filed on September 17, 2014. Geils Deel., Att 7 at 8. 

III. Grievance Procedures at ODOC 

Pohlman has at all matei'ial times been housed at either DRCI or SRCI. Pohlman had 

'Pohlman states that this grievance was his "third good faith effort to continue the DRCM 

2014-07-026 sequence," which grieved denial of ADA accommodations. Pohlman Deel., ii 35. 

Pohlman details his difficulties in obtaining a grievance appeal f01m at SRCI, and effo1t to 

continue the appeal using a primary grievance form instead. Id. iiii 29-35. However, upon 

review of the grievance f01m, I find that the grievance Pohlman filed on August 15, 2014 

constituted a new grievance. Geils Deel., Att. 7 at 2-3. The DRCI grievance coordinator 

accepted Pohlman's first appeal ofDRCM 2014-07-026 on August 11, 2014. Id., Att. 6 at 5. 

That appeal was still pending on August 15, 2014 when Pohlman first grieved his transfer from 

DRCI to SRCI. Id., Att. 6 at 6; Att. 7 at 2-3. 

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available to him a three-level grievance procedure consistent with the regulations set fo1ih in 

Chapter 291, Division 109 of the Oregon Administrative Rules ("OARs"). 

Pursuant to the DRCI and SRCI grievance procedures and applicable Oregon 

Administrative Rules, "[i]f an inmate is unable to resolve an issue through info1mal 

communications, [the] inmate may seek resolution of the issue by submitting a written grievance 

using the department's approved inmate grievance form (CD 117)." OAR-291-109-0140(1)(a). 

Any such grievance "must include a complete description of the incident, action, or application 

of the rnle being grieved, including date and approximate time," and should be accompanied by 

any referenced documents. OAR-291-109-0140(1)(b). Matters, actions, and incidents that an 

inmate may properly grieve are the "misapplication of any administrative directive or operational 

procedure," the "lack of an administrative directive or operational procedure," any 

"unprofessional behavior or action which may be directed toward an inmate by an employee or 

volunteer of [ODOC] or the Oregon Corrections Enterprises," any "oversight or enor affecting an 

inmate," any "program failure as defined in ... OAR-291-077-0020," except where such failure 

was caused by the inmate's misconduct, or the "loss or destruction of [the inmate's] property .... " 

OAR-291-109-0140(2). "An inmate grievance may request review of just one matter, action or 

incident per inmate grievance form." OAR-291-109-0140(l)(d). Similarly, inmates are not 

pe1mitted to grieve the actions of more than one ODOC employee through a single grievance 

form, but rather must file one grievance fo1m per ODOC employee whose actions are the subject 

of the inmate's challenge. See OAR-291-109-0140(5). In addition, inmates are not pe1mitted to 

grieve any " [ c ]!aims or issues the inmate has pursued or is pursuing in pending litigation in state 

6 - OPINION AND ORDER 

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or federal courts." OAR-291-109-0l 40(3)(h). A grievance will not be processed unless it is 

received by the applicable grievance coordinator on form CD 117 "within 30 calendar days of the 

date of the incident giving rise to the grievance." OAR-291-109-0150(2). 

Upon receipt of an inmate grievance, a grievance coordinator is required to "assign the 

grievance a number, date stamp, and record its receipt in an inmate grievance log" and to "send a 

grievance receipt to the inmate." OAR-291-109-0160(1) and (1 )(a). The grievance coordinator 

is then required to coordinate with the ODOC employee best suited to respond to the grievance, 

and to send the inmate's grievance to that person "for reply." OAR-291-109-0160(l)(b). The 

response must "be returned to the grievance coordinator for processing within 21 calendar days." 

OAR-291-109-0160(l)(c). Following such processing, the grievance coordinator is required to 

send the inmate copies of both the grievance and the response, and to retain copies for the 

grievance coordinator's files, all within "45 days from the date the grievance was received" by the 

grievance coordinator, "unless further investigation is necessaty." OAR-291-109-0160(2). In the 

event the grievance coordinator fails to complete processing of the grievance within 45 days of 

its receipt, "the grievance coordinator will make an effort to notify the inmate of the status of the 

grievance." Id. "If the inmate does not receive a response within the allotted time frame, he/she 

may contact the grievance coordinator." Id. 

"If at any time the grievance coordinator dete1mines the inmate has pursued his/her 

grievance through state or federal courts ... the grievance process will cease and the grievance 

will be returned to the inmate." OAR-291-109-0160(4) .. "A grievance that has been returned to 

[an] inmate by the grievance coordinator for procedural reasons cannot be appealed." 

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OAR-291-109- 0160(5). 

An inmate may appeal the institutional response to the inmate's grievance by and through 

"the grievance appeal form (CD 117c)." OAR-291-109-0170(1)(a). Any such appeal "must be 

submitted to the grievance coordinator together with the original grievance, attachments, and 

staff response( s ). " Id. The scope of the originally submitted grievance cannot be expanded on 

appeal, and the inmate is not permitted to add new info1mation regarding the grieved incident on· 

appeal,. except where such information was unavailable to the inmate at the time the original 

grievance was filed. See id. Any such appeal must be received by the grievance coordinator 

"within 14 days from the date that the grievance response was sent to the inmate from the 

grievance coordinator." OAR-291-109-0170(1)(b). The grievance coordinator is required to 

send the appeal to the "functional unit manager," who is required to respond to the appeal "within 

30 calendar days." OAR-291-109-0170(1)(a)(B) and (l)(d). The grievance coordinator is then 

required to send the functional unit manager's appeal response to the inmate. See 

OAR-291-109-0l 70(2)(c). 

In the event an inmate wishes to appeal the functional unit manager's decision regarding a 

grievance appeal, the inmate may do so "using the grievance appeal form (CD 1l7c)." 

OAR-291-109-0l 70(2)(a). Any such appeal "must be submitted to the grievance coordinator 

together with the original grievance, attachments, staff responses, and documentation related to 

the first grievance appeal." Id. The grievance coordinator must receive any such appeal "within 

14 calendar days from the date that the first grievance appeal response was sent to the inmate 

from the grievance coordinator." OAR-291-109-0170(2)( c ). As with the first appeal, appeal of 

the functional unit manager's response cannot expand the scope of the original grievance, and 

8 - OPINION AND ORDER 

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cannot adduce new information regarding the originally grieved incident, except where such 

info1mation was unavailable to the inmate at the time the original grievance or first appeal was 

filed. See OAR-291-109-0170(2)(a). The grievance coordinator is required to forward any such 

appeal to "the Assistant Director having authority to review and resolve the issue." Id. 

The Assistant Director with such authority is required to respond to any such appeal from 

a functional unit manager's grievance appeal response "within 30 calendar days." 

OAR-291-109-0170(2)(e). "The Assistant Director's ... decision on an inmate's grievance 

appeal is final, and is not subject to fu1iher [administrative] review." OAR-291-109- 0170(2)(f). 

LEGAL STANDARD 

Summmy judgment is appropriate if the pleadings, depositions, answers to 

interrogatories, and admissions on file, together with the affidavits, if any, "show[] 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). Summmy judgment is not proper if material factual issues exist for 

trial. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, 

Inc., 477 U.S. 242, 247-48 (1986); Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995). 

The substantive law governing a claim or defense dete1mines whether a fact is material. See 

}.fore/and v. Las Vegas }vfetro. Police Dep 't, 159 F.3d 365, 369 (9th Cir. 1998). In evaluating a 

motion for summmy judgment, the district courts of the United States must draw all reasonable 

inferences in favor of the nonmoving party and may neither make credibility determinations nor 

perfo1m any weighing of the evidence. See, e.g., Reeves v. Sanderson Plumbing Prods., Inc., 530 

U.S. 133, 150 (2000); Lytle v. Household iv!fg., Inc., 494 U.S. 545, 554-55 (1990). 

9 - OPINION AND ORDER 

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ANALYSIS 

Pohlman brings several First, Fifth, Eighth, and Fomieenth Amendment claims under 

Section 1983, which are premised on (1) the denial of Pohlman's request for ADA 

accommodation, and (2) claims that his transfer from DRCI to SRCI on August 12, 2014 was 

retaliatory. For the purposes of the analysis that follows, I construe these claims separately. 

I. Prison Litigation Reform Act 

Under the Prison Litigation Reform Act ("PLRA"), incarcerated plaintiffs are required to 

exhaust all administrative remedies available to them within the institutions in which they are 

housed before bringing any federal action in connection with prison conditions, including such 

actions brought under 42 U.S.C. § 1983: 

No action shall be bronght 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 conectional facility until such 

administrative remedies as are available are exhausted. 

42 U.S.C. § 1997e(a). For purposes of the PLRA, actions brought with respect to "prison 

conditions" include all actions brought to challenge isolated episodes of unconstitutional or 

otherwise unlawful misconduct of any kind as well as prisoner petitions challenging conditions 

of confinement. See Porter v. Nussle, 534 U.S. 516, 532 (2002). Under the PLRA, the courts 

lack discretion to consider claims challenging prison conditions, including claims for money 

damages, except where such claims are filed following complete exhaustion of available 

administrative remedies, without regard to the nature of the administrative remedies available 

under such administrative grievance procedures. See id. at 524, citing Booth v. Churner, 532 

U.S. 731, 739, 740 n.5, 741 (2001). 

10- OPINION AND ORDER 

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Inmates are not required to plead or demonstrate exhaustion before bringing prisonconditions lawsuits. Jones v. Bock, 549 U.S. 199, 216 (2007). To the contrary, an incarcerated 

plaintiff's failure to satisfy the PLRA exhaustion requirement is an affirmative defense that is the 

burden of the defendant in a prison-conditions lawsuit to raise and prove. See id. Following the 

Ninth Circuit's en bane decision in Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014), the courts of 

the Ninth Circuit treat challenges to a prisoner's exhaustion of administrative remedies as 

motions for summary judgment if premised on proffered evidence, and as motions to dismiss for 

failure to state a claim if premised on the incarcerated plaintiff's pleading alone. See Albino, 747 

F.3d at 1166. Here, Defendants have properly brought an evidence-based challenge to Pohlman's 

exhaustion of administrative remedies as a motion for partial summary judgment. 

"If undisputed evidence viewed in the light most favorable to the prisoner shows a failure 

to exhaust, a defendant is entitled to summaty judgment under Rule 56." Id. However, "[i]f 

material facts are disputed, summaty judgment should be denied, and [following such denial] the 

district judge rather than a jmy should determine the facts." Id The Albino court specified that 

the comi should act as the finder of fact in comtection with an exhaustion challenge "in a 

preliminaty proceeding," id at 1168, "if feasible, before reaching the merits of a prisoner's 

claim," id. at 1170. Such preliminaty proceeding is to be conducted "in the same manner a judge 

rather than a jmy decides disputed factual questions relevant to jurisdiction and venue," id., 

which is to say via a plenary evidentiaty hearing to be conducted in a mamter within the 

discretion of the court, see, e.g., Data Disc, Inc. v. Systems Technology Associates, Inc., 557 F.2d 

1280, 1285, 1285 n. 2 (9th Cir. 1977). 

For purposes of the PLRA, "complete exhaustion" of available administrative remedies 

11 - OPINION AND ORDER 

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requires that an inmate "complete the administrative review process in accordance with [all] 

applicable procedural rules, including deadlines .... " ivfarel/a v. Terhune, 568 F.3d 1024, 1027 

(9th Cir. 2009), quoting Woodford v. Ngo, 548 U.S. 81, 88 (2006). Indeed, as the Supreme Court 

established in Woodford, "proper exhaustion of administrative remedies ... 'means using all 

steps that the agency holds out, and doing so properly (so that the agency addresses the issues on 

the merits)."' Woodford, 548 U.S. at 90 (emphasis original), quoting Pozo v. lvfcCaughfly, 286 

F.3d 1022, 1024 (7th Cir. 2002). The Woodford court reasoned that to hold otherwise would 

permit prisoners to render the PLRA exhaustion requirement "wholly ineffective" by defaulting 

in the performance of administrative requirements and then claiming exhaustion by virtue of such 

procedural default. Id. at 95. Under Woodford, only proper exhaustion of administrative 

requirements, including compliance with deadlines and perfo1mance of all procedural requisites, 

is sufficient to satisfy the requirements of the PLRA. See id. at 90-91 ("Proper exhaustion 

demands compliance with an agency's deadlines and other critical procedural rules .... "). 

1. Claims Alleging Denial of ADA Accommodation 

As noted above, on July 25, 2014, Pohlman filed a grievance requesting ADA 

accommodation, to which he received a response on August 5, 2014. Also as noted above, 

Pohlman filed a first appeal on August 6, 2014, but did not provide all of the necessmy 

documentation. The DRCI grievance coordinator nonetheless accepted the appeal on August 11, 

2014, and received the additional info1mation from Pohlman on August 19, 2014. DRCI 

Superintendent Tom Causey responded to Pohlman's appeal on October 8, 2014, after Pohlman 

initiated this litigation. Pohlman did not appeal the response. Because Pohlman failed to fully 

exhaust the administrative process with respect to his ADA accommodation claims, this comt 

12 - OPINION AND ORDER 

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lacks discretion to consider the merits of those claims. 

Pohlman contends that he made two attempts to continue the appeal process for his ADA 

accommodation grievance before finally resorting to using a primary grievance form. Pl.'s 

Response, 11-12. That grievance was labeled as the beginning of a new grievance sequence, 

rather than a continuation of Pohlman's ADA accommodation grievance. Pohlman Deel., 'if'if 30, 

33, 35; Pl.'s Response, 14. Pohlman asse1is that prison employees "exercise control over the 

labeling, numbering, grouping and association of grievances and appeals which may be exe1ied 

to render a remedy unavailable." Sur-Response to Motion for Pmiial Summaiy Judgment, #71, 

7. Pohlman also argues that the confiscation of his grievance paperwork dming transfer to SRCI, 

and failme of ODOC officials to respond to his grievances within the time required under the 

OARs obstructed his pmsuit of administrative exhaustion. Pl.'s Response, 10-11, 15-16. 

Once the defendant proves there was an available administrative remedy that the prisoner 

failed to exhaust, "the burden shifts to the prisoner to come forward with evidence showing that 

there is something in his pa1iicular case that made the existing and generally available 

administrative remedies effectively unavailable to him." Albino v. Baca, 747 F.3d 1162, 1172 

(9th Cir. 2014). Under the OARs, the functional unit manager has 30 days from the date he or 

she receives a grievance appeal to return the grievance appeal and response to the grievance 

coordinator. OAR-291-109-0l 70(1)(d). In Brown v. Valojf, 422 F.3d 926 (9th Cir. 2005), the 

Ninth Circuit agreed with other circuits in "'refus[ing] to interpret the PLRA so nanowly as to ... 

permit [prison officials] to exploit the exhaustion requirement through indefinite delay in 

responding to grievances."' 422 F.2d at 943 n.18, citing Lewis v. Washington, 300 F.3d 829, 833 

(7th Cir. 2002). In Brown, inmate Hall filed a federal action less than two rnonths after prison 

13 - OPINION AND ORDER 

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officials notified him that an investigation into his complaint was pending. 422 F.3d at 933. 

Though the court stated that "delay in responding to a grievance, pmiicularly a time-sensitive 

one, may demonstrate that no administrative process is in fact available," they failed to find that 

Hall "was prejudiced by the long time it took to conclude the investigation into his staff 

complaint." Id. at 943 n.18. 

Pohlman's first level appeal was still pending when he was transfened to SRCI and when 

he filed this action. Geils Deel., Att. 6 at 5, 6. Pohlman's appeal was accepted on August 11, 

2014. Id., Att. 6 at 5. Though Pohlman's prior grievance paperwork was confiscated when he 

was transferred to SRCI on August 12, 2014, Pohlman was able to send the DRCI grievance 

coordinator the additional documents necessary to continue his appeal on August 13, 2014. Id., 

Att. 6 at 9. There is no evidence that the processing of that appeal was affected by prison 

officials labeling his first retaliatory transfer grievance as a new grievance sequence. On August 

19, 2014, Pohlman received notice that his first level appeal was proceeding. Id., Att. 6 at 6. 

Without receiving a response to his appeal, Pohlman filed this action less than 30 days later, on 

September 17, 2014. Complaint, #2. Pohlman's pursuit of administrative exhaustion was not 

obstructed with respect to his ADA accommodation claims. Rather, Pohlman successfully filed a 

first grievance appeal, which was pending when he commenced this action. 

Additionally, any arguable delay in the appeal process did not render Pohlman's 

administrative remedies effectively unavailable. If the appeal response time tolled from when 

Pohlman's additional paperwork was received on August 19, 2014, then as of September 17, 

2014, when Pohlman brought this action, there was no delay under the OARs. If the time tolled 

from August 11, 2014, then as of September 17, 2014, 37 days had elapsed without a response. 

14 - OPINION AND ORDER 

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Based on the grievance process rnles, it is not clear that prison officials were required to send 

Pohlman a response within 30 days. The rnles only state that the functional unit manager must 

provide the grievance coordinator with an appeal response within 30 days. 

Even assuming arguendo that the response to Pohlman's grievance appeal was indeed 

delayed as of September 17, 2014, Pohlman was not prejudiced by the delay. Pohlman waited 

only a week after the 30 days had tolled before bringing this action, though he was on notice of a 

potential delay when the DRCI grievance coordinator informed him that additional 

documentation was necessaiy to continue with his appeal. There is no evidence that the third 

level of the grievance process was unavailable to Pohlman or that Pohlman attempted to continue 

the grievance process when his first appeal was delayed by seven days. Pohlman therefore still 

had unexhausted remedies available to him when he brought this action. 

Based on the foregoing analysis, I find that Pohlman did not exhaust his administrative 

remedies with respect to his ADA accommodation claims, and this comt therefore lacks 

discretion to consider the merits of those claims. 

2. Transfer to SRCI 

As noted above, Pohlman filed a grievance alleging that his transfer from DRCI to SRCI 

was "a reprisal" for rep01ting his transp01t injmy and seeking ADA accommodation. Geils Deel., 

Att. 7 at 2-3. Also as noted above, the SRCI grievance coordinator received the initial grievance 

on August 20, 2014, but the process was delayed. Geils Deel., iii! 22, 23; Att. 7 at 2-3. The 

DRCI grievance coordinator received a copy of the grievance on October 2, 2014 and "restarted 

the grievance process." Geils Deel., if 24; Att. 7 at 2-3. The grievance was "referred out" for a 

response on October 21, 2014, but no response was provided. Geils Deel.,~ 25; Att. 7 at 6, 7. 

15 - OPINION AND ORDER 

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On December 2, 2014, Pohlman was infonned that ODOC could not respond to his grievance 

due to his litigation filed on September 17, 2014. Geils Deel., Att. 7 at 8. 

Pohlman argues that threats of retaliation for filing a grievance excuse exhaustion. Pl.'s 

Response, 18. He contends that the administrative remedies available to him are inadequate to 

address grievances about acts of retaliation that were intended to obstruct the use of those same 

remedies. Id. at 19. Pohlman offers Gibson v. Benyhill, 411 U.S. 564 (1973) and Wray v. Or. 

Dep't of Corr., No. 2:12-CV-00980-PK, 2013 WL 3479477 (D. Or. July 8, 2013) as support for 

these contentions. 

However, Pohlman misstates the authority. In Gibson, the Supreme Court found that 

exhaustion of administrative remedies generally is not required in suits challenging the adequacy 

of the available administrative remedies. 411 U.S. at 574-575, 575 n.14. In Wray, however, 

based on the broad scope of the PLRA exhaustion requirement, this court declined to extend the 

Gibson rule to challenges to the adequacy of prison grievance procedures. 2013 WL 34 794 77 at 

* 12. Based on Wray, exhaustion of Pohlman's retaliat01y transfer claim is not excused. 

Pohlman failed to exhaust his available administrative remedies with respect to his 

retaliat01y transfer claim. The SRCI grievance coordinator received Pohlman's initial grievance 

on August 20, 2014. Geils Deel.,~ 24; Att. 7 at 2-3. The grievance coordinator had 45 days 

from that date to process the grievance. OAR-291-109-0160(2)(a). Without receiving a 

response, Pohlman commenced this action on September 17, 2014, only 28 days after the SRCI 

grievance coordinator received his initial grievance, and before the DRCI grievance coordinator 

even received his initial grievance. Pohlman did not wait for a response to his initial grievance, 

contact the SRCI or DRCI grievance coordinator for an update (see OAR-291-109-0160(2)(b)), 

16- OPINION AND ORDER 

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or file an appeal. Pohlman had several remaining administrative remedies available to him when 

he brought this action. 

Based on the foregoing analysis, I find that Pohlman did not exhaust his administrative 

remedies with respect to his retaliatory transfer claims, and this court therefore lacks discretion to 

consider the merits of those claims 

3. Summary 

In consequence of the foregoing analysis, under the PLRA this court lacks discretion to 

consider the merits of Pohlman's ADA accommodation and retaliatory transfer claims against 

defendants Hormann, Peters, Ladeby, Coleman, Baysinger, and Olson. Defendants are entitled to 

pmiial summmy judgment in connection with those claims, and they are dismissed with 

prejudice. 

II. Pohlman's Proposed Amended Complaint 

Defendants move for summmy judgment notwithstanding Pohlman's proposed amended 

complaint, which attempts to include new defendants and claims in this proceeding. Defendants' 

Motion, 5-6. To support this, Defendants cite Thunderbird v. ODOC, 2011 WL 2971796 (D. Or. 

June 28, 2011), a case decided by this court that stands for the proposition that a claim is 

"brought" for the purposes of the PLRA when a plaintiff submits his complaint. Accordingly, 

Defendants seek summmy judgment on claims introduced in the proposed amended complaint 

that postdate Pohlman's initial complaint. 

The Ninth Circuit has drawn a distinction between an amended complaint introducing 

new claims arising after the filing of the initial complaint and one that solely involves claims 

predating the filing of the initial complaint. See Rhodes v. Robinson, 621F.3d1002 (9th Cir. 

17 - OPINION AND ORDER 

Case 3:14-cv-01483-PK Document 72 Filed 08/04/15 Page 17 of 19
2010). In the former situation, the amended complaint is considered a "supplemental complaint" 

and exhaustion of new claims need only occur before filing the supplemental complaint. Id. at 

1006-1007. 

Therefore, Defendants' motion is denied in part to the extent Pohlman's proposed 

amended complaint introduces new claims that arose after the initial complaint was filed. Claims 

5 and 6, respectively involving a November 2014 misconduct report and inadequate medical care 

in 2015, survive Defendants' motion. Motion (#37) for Leave to File Amended Complaint 

("Proposed Amended Complaint"), 23; Defendants' Motion, 5. Those claims merely supplement 

the initial complaint and do not, on their face, violate the PLRA. See Rhodes, 621 F.3d at 1007. 

However, Defendants' motion is granted in part insofar as the amended complaint involves new 

claims or new facts in support of claims predating the filing of the initial complaint, including 

but not limited to those items related to Pohlman's initial transport injury, Defendants' denial of 

ADA accommodation, and Pohlman's transfer to SRCI, contained in Claims 1, 3, and 4 and the 

related facts. Proposed Amended Complaint, #37-1, 12-13, 15-20. Those aspects of the 

Proposed Amended Complaint (#37-1) must be stricken and Pohlman is granted leave to re-file 

his Proposed Amended Complaint in conformity with this Order. 

CONCLUSION 

For the reasons set forth above, Defendants' motion for partial summmy judgment (#60) 

is granted in part and denied in part. Summmy judgment is entered in favor of defendants 

Hormann, Peters, Ladeby, Coleman, Baysinger, and Olson as to Pohlman's ADA accommodation 

and retaliat01y transfer claims. Those claims are dismissed with prejudice and those defendants 

are dismissed from this action. 

18 - OPINION AND ORDER 

Case 3:14-cv-01483-PK Document 72 Filed 08/04/15 Page 18 of 19
Fu1iher, Defendants' motion for summary judgment against all new claims introduced in 

Pohhnan's Proposed Amended Complaint (#37-1) is denied in pait as it applies to Claims 5 and 

6, arising after September 17, 2014, the date Pohlman filed his initial complaint. Defendants' 

motion is granted in part as it applies to Claims 1, 3, and 4, predating September 17, 2014, alld 

Pohlman must strike the po1iions of his Proposed Amended Complaint (#37-1) related to those 

claims. Thus, Pohlman is granted leave to re-file his Proposed Amended Complaint (#37-1) in 

accordance with this Order as follows: 

• Claim 1 regarding original transport injmy in April 2014 must be stricken; 

• Claim 2 against Smith, Fuzi, DiGulio, and (proposed defendant) Carter SURVIVES; 

• Claim 3 regarding Pohlman's ADA accommodation claim must be stricken; 

• Claim 4 regai·ding Pohlman's retaliat01y transfer claim must be stricken; 

• Claim 5 against (proposed defendants) Richardson, Landaverde, Clements, Capps, and 

Nooth SURVIVES; and 

• Claim 6 against (proposed defendant) State of Oregon SURVIVES. 

Fmiher, Pohlman's Motion for Leave to File an Amended Complaint, as modified by this 

Order, (#37) is granted. Finally, the stay as to Pohlman's Motions to Compel (#38), (#56), (#57), 

(#63) & (#64); and Motions to Add Supplemental Paliies and Motions for Joinder (#52) & (#53) 

is lifted. In addition, the stay of discove1y and pending deadlines is lifted. Discove1y and 

Dated this 

Honorable Paul Papak 

United States Magistrate Judge 

19 - OPINION AND ORDER 

Case 3:14-cv-01483-PK Document 72 Filed 08/04/15 Page 19 of 19