PAGE 1 – OPINION AND ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

ANTHONY MAGGIO,

Plaintiff,

v.

STEVEN SHELTON; LINDA 

GRUENWALD; and JOHN MICHAEL 

JEREMY ANDERSON,

Defendants.

Case No. 2:14-cv-01682-SI

OPINION AND ORDER

Lynn S. Walsh, Attorney at Law, 209 SW Oak Street, Suite 400, Portland, OR 97204. Of 

Attorneys for Plaintiff.

Ellen F. Rosenblum, Attorney General, Andrew Hallman, Assistant Attorney General, 

Department of Justice, 1162 Court Street NE, Salem, OR 97301. Of Attorneys for Defendants

Steve Shelton, M.D. and Linda Gruenwald, N.P.

Michael H. Simon, District Judge.

Anthony Maggio (“Maggio”) brings this prisoner civil rights action against Steven 

Shelton, M.D. (“Dr. Shelton”), Linda Gruenwald, N.P. (“Nurse Gruenwald”), and John Michael 

Jeremy Anderson, D.O. (“Dr. Anderson”). Dr. Shelton and Nurse Gruenwald are employees of 

the Oregon Department of Corrections (the “ODOC”). In Maggio’s Amended Complaint, he 
PAGE 2 – OPINION AND ORDER

alleges claims under 42 U.S.C. § 1983 and common law negligence arising from medical 

treatment following surgery on his right hand. 

Before the Court is Dr. Shelton and Nurse Gruenwald’s motion for summary judgment. 

Dr. Shelton and Nurse Gruenwald argue that Maggio failed to exhaust his administrative 

remedies under the Prison Litigation Reform Act (the “PLRA”) before bringing his claims 

against them. Additionally, Maggio requests that the Court grant him summary judgment on the 

exhaustion issue under Federal Rule of Civil Procedure 56(f)(1).1For the reasons that follow, 

Dr. Shelton and Nurse Gruenwald’s motion (Dkt. 49) is granted in part and denied in part, and 

Maggio’s motion (Dkt. 54) is granted in part and denied in part. 

STANDARDS

A party is entitled to summary judgment 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 moving party has the burden of establishing the absence of a genuine 

dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court must view 

the evidence in the light most favorable to the non-movant and draw all reasonable inferences in 

the non-movant’s favor. Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th 

Cir. 2001). Although “[c]redibility determinations, the weighing of the evidence, and the 

drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling 

on a motion for summary judgment,” the “mere existence of a scintilla of evidence in support of 

the plaintiff’s position [is] insufficient . . . .” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 

255 (1986). “Where the record taken as a whole could not lead a rational trier of fact to find for 

 

1

Federal Rule of Civil Procedure 56(f)(1) provides that a court may grant summary 

judgment for a nonmovant after giving the other party notice and a reasonable time to respond.
PAGE 3 – OPINION AND ORDER

the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith 

Radio Corp., 475 U.S. 574, 587 (1986) (citation and quotation marks omitted).

BACKGROUND2

At all times relevant to his Amended Complaint, Maggio was an inmate at the Two 

Rivers Correctional Institution (“TRCI”) in Umatilla, Oregon.3In 2013, Maggio fractured his 

distal fourth metacarpal bone in his right hand. Nurse Gruenwald, a nurse practitioner and 

Maggio’s primary care provider at TRCI, referred Maggio to an outside provider named 

Dr. Anderson for treatment of his injury. On May 28, 2013, Dr. Anderson performed surgery on 

Maggio’s hand to repair the fracture. The surgery included the insertion of pins. 

On July 1, 2013, TRCI brought Maggio to Dr. Anderson’s office again, this time to 

remove the pins. According to Maggio, the pin removal procedure was prolonged and very 

painful because Dr. Anderson was unable to locate the pins in a prompt manner. Maggio asserts 

that the extraction was performed improperly and that he has suffered significant scarring, severe 

pain, and loss of function in his hand as a result. Maggio alleges that he complained about the 

scarring, pain, and loss of function to his medical providers at TRCI, but that he did not receive 

adequate treatment and follow-up care.

 

2

Exhaustion of administrative remedies under the PLRA is an affirmative defense that 

properly is raised in a motion for summary judgment. Albino v. Baca, 747 F.3d 1162, 1166 

(9th Cir. 2014). “Exhaustion should be decided, if feasible, before reaching the merits of a 

prisoner’s claim.” Id. at 1170. Here, the parties have provided the Court with a limited 

evidentiary record that is mostly confined to facts regarding Maggio’s grievances. Thus, in this 

Background section, the Court recites facts alleged in Maggio’s Amended Complaint when 

describing the alleged events that give rise to his claims. When the Court refers to evidence in 

the record rather than Maggio’s allegations, the Court provides a docket number and 

accompanying pinpoint citation.

3 Maggio is now an inmate at the Snake River Correctional Institution in Ontario, 

Oregon. Dkt. 50 ¶ 3. His release date is October 13, 2016. Dkt. 55-2 at 1. 
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Although inmates are encouraged to communicate with prison staff verbally or in writing 

as their primary means of resolving disputes, TRCI also has grievance procedures in place that

allow inmates formally to complain about any oversight or error affecting them, among other 

things. Dkt. 50 ¶ 7. The TRCI processes grievances in accordance with the Oregon

Administrative Rules governing the ODOC Grievance Review System. Id. ¶ 6. The Inmate 

Orientation Packet, given to inmates when they first arrive at the facility, contains instructions 

for filing grievances. Id. ¶ 7. The inmate handbook also contains this information, and inmates 

can ask any housing officer for a grievance form. Id. An inmate may appeal any grievance 

response. Id. ¶ 9. 

On April 9, 2014, Maggio filed four grievances with TRCI relevant to this action. Id.

¶¶ 11-14. In the first grievance, Maggio complains of ongoing pain and scarring in his right hand 

resulting from the surgery. Id. at 21. Maggio additionally states that a medical provider named 

Dr. Vrieson treated him that day, and that Dr. Vrieson informed Maggio that he should have 

gone to a hand specialist for the surgery. Id. In the second grievance Maggio filed on April 9, 

2014, he complains that Dr. Anderson was not a specialist in the type of surgery that he 

performed on Maggio. Id. at 22. Maggio states that Dr. Shelton, the Medical Director of the 

ODOC, acted with deliberate indifference when he sent Maggio to a doctor who did not 

specialize in hand surgery, and that Maggio suffers pain and scarring as a result. Id. In both the 

first and second grievance, Maggio states that he wants to be seen by a hand specialist and that 

he wants to receive proper follow-up treatment. Id. at 21-22.

TRCI gave Maggio’s first two grievances the same tracking number and denied them as 

untimely, citing Oregon Administrative Rule (“OAR”) § 291-109-0150(2), which provides that 
PAGE 5 – OPINION AND ORDER

“the functional unit grievance coordinator must receive an inmate’s grievance within 30 calendar 

days of the date of the incident giving rise to the grievance.” Id. at 20-22.

The third grievance that Maggio filed on April 9, 2014, was nearly identical to the second 

grievance and contained the same allegations. Id. at 24. TRCI denied Maggio’s third grievance 

because it was untimely under OAR § 291-109-0150(2). Id. ¶ 13. TRCI states that the third 

grievance was also improper because Maggio was attempting to file more than one grievance 

concerning a single incident. Id.; see OAR § 291-109-0140(5) (“An inmate may not file more 

than one grievance regarding a single incident or issue.”). 

The fourth grievance that Maggio filed on April 9, 2014, was nearly identical to the first 

grievance and contained the same allegations. Id. at 26. TRCI denied Maggio’s fourth grievance 

because an inmate may not file more than one grievance regarding a single incident or issue. Id.

at 25. TRCI states that the fourth grievance was also improper because it was untimely. Id. ¶ 14.

On May 9, 2014, Maggio attempted to appeal the denial of his April 9, 2014 grievances. 

Id. ¶ 15. TRCI denied Maggio’s appeals because the ODOC does not permit inmates to appeal a 

grievance that was rejected for procedural reasons. Id. TRCI informed Maggio that he could 

resubmit his grievances within fourteen days if the procedural issues could be corrected. Id.

Although Maggio attempted to file a second appeal, which TRCI denied, Maggio did not 

resubmit any of the April 9, 2014 grievances. Id.

Maggio filed this lawsuit on October 23, 2014. Dkt. 2. On December 8, 2014, TRCI sent 

Maggio to Dr. Anderson for a follow-up appointment. Dkt. 55-2 at 2. After the appointment, 

Dr. Anderson reported to Nurse Gruenwald that: “Considerations could be for referral to a hand 

specialist for evaluation of the intrinsic muscles, but once again at this point in time I am not sure 

if there would be any surgical solution.” Id. On December 16, 2014, the Therapeutic Level of 
PAGE 6 – OPINION AND ORDER

Care Committee (the “TLC Committee”), which is a group of ODOC medical providers who 

review cases to determine whether an inmate will receive medical treatment, found that referring 

Maggio to a hand specialist was not medically necessary. Id. at 1. Dr. Shelton is a member of the 

TLC Committee and participated in the decision to deny Maggio a referral to a hand specialist. 

See id.

DISCUSSION

In Maggio’s Amended Complaint, he alleges two claims: (1) deliberate indifference and 

cruel and unusual punishment in violation of the Eighth Amendment, pursuant to 42 U.S.C. 

§ 1983, against all Defendants (“First Claim”); and (2) common law negligence, against 

Dr. Anderson only (“Second Claim”).4In his First Claim, Maggio alleges that Nurse Gruenwald 

was deliberately indifferent to Maggio’s medical needs in the following ways: (1) failing to refer 

Maggio to a qualified hand specialist for surgery; (2) failing to refer Maggio to a qualified hand 

specialist after it became apparent that his hand properly was not healing; (3) failing to provide 

Maggio with adequate pain relief; and (4) failing to provide Maggio with medically acceptable 

treatment. Maggio also alleges that Dr. Shelton was deliberately indifferent to Maggio’s serious 

medical needs because he denied Maggio any type of follow-up care. 

Maggio additionally seeks declaratory and injunctive relief against Dr. Shelton arising 

from the TLC Committee’s December 2014 decision to deny Maggio referral to a hand 

specialist. Maggio alleges that Dr. Shelton, while acting within his official position as Medical 

Director of the ODOC, has implemented unconstitutional policies and procedures for deciding 

 

4 Maggio’s Amended Complaint labels his First Claim as against “Defendants Dow, 

Olson and Alexander,” and his Second Claim as against “Defendant Johnson.” Dkt. 25 at 4-5. 

The remainder of Maggio’s Amended Complaint makes clear, however, that Maggio brings his 

First Claim against Gruenwald, Dr. Anderson, and Dr. Shelton, and his Second Claim against 

Dr. Anderson. Id. at 4-6. Thus, the Court considers the references to “Defendants Dow, Olson 

and Alexander” and “Defendant Johnson” to be scrivener’s errors. 
PAGE 7 – OPINION AND ORDER

when a prisoner may receive treatment from an outside medical provider. Maggio specifically 

alleges that the TLC Committee, of which Dr. Shelton is a member, considers the cost of the 

procedure and the amount of time that a prisoner has left on their sentence when deciding 

whether to provide a prisoner with necessary medical treatment. Maggio asserts that the TLC 

Committee inappropriately considered these factors when denying him a referral to a hand

specialist in December 2014. Accordingly, Maggio requests a declaration that the policies and 

procedures applied by the TLC Committee are unconstitutional and injunctive relief prohibiting 

ODOC medical providers from applying the unconstitutional policies and procedures and 

refusing to refer Maggio to a hand specialist. 

Dr. Shelton and Nurse Gruenwald move for summary judgment on the grounds that 

Maggio failed to exhaust his administrative remedies under the PLRA before bringing his claims 

against them. The PLRA provides in relevant part: “No 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). This exhaustion requirement serves two 

primary purposes: to promote efficient resolution of disputes, and to protect agency authority by 

requiring adherence to agency procedures and by allowing agencies an opportunity to correct 

their own mistakes. Woodford v. Ngo, 548 U.S. 81, 89 (2006). 

Nonexhaustion is an affirmative defense and defendants have the burden of “prov[ing]

that there was an available administrative remedy, and that the prisoner did not exhaust that 

available remedy.” Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014) (en banc). A remedy is 

“available” where it is “capable of use; at hand.” Williams v. Paramo, 775 F.3d 1182, 1191 

(9th Cir. 2015) (quoting Albino, 747 F.3d at 1171) (quotation marks omitted). If a defendant 
PAGE 8 – OPINION AND ORDER

meets the initial burden, a plaintiff then must “come forward with evidence showing that there is 

something in his particular case that made the existing and generally available administrative 

remedies effectively unavailable to him.” Albino, 747 F.3d at 1172. Remedies are “effectively 

unavailable” where they are “ineffective, unobtainable, unduly prolonged, inadequate, or 

obviously futile.” Id. (quoting Hilao v. Estate of Marcos, 103 F.3d 767, 778 n.5 (9th Cir. 1996)). 

“[T]he ultimate burden of proof,” however, never leaves the defendant. Id.

Dr. Shelton and Nurse Gruenwald argue that Maggio failed to exhaust his administrative 

remedies in three ways: (1) Maggio did not grieve his allegedly improper referral to 

Dr. Anderson in a timely manner; (2) Maggio never grieved his inadequate follow-up care and 

pain treatment allegations; and (3) Maggio never grieved his declaratory and injunctive relief 

allegations that the TLC Committee applies improper policies and procedures when deciding 

whether to provide inmates with medical treatment. Each argument is addressed in turn. 

A. Referral to Dr. Anderson

Nurse Gruenwald argues that although Maggio filed several grievances concerning the 

ODOC’s decision to send him to Dr. Anderson for treatment of his broken hand, the grievances 

were untimely because Maggio filed them more than thirty days after his surgery. Thus, Nurse 

Gruenwald argues Maggio failed to exhaust his administrative remedies for his allegations 

regarding the referral to Dr. Anderson. 

Nurse Gruenwald argues that this case is analogous to Albino v. Baca, 697 F.3d 1023 

(9th Cir. 2012), rehearing en banc granted by Albino v. Baca, 709 F.3d 994 (9th Cir. 2013). In 

Albino, the plaintiff argued that the grievance procedure was “unavailable” to him because the 

jail in which he was housed failed to inform him of the grievance procedure and he lacked 

subjective awareness of his administrative remedies. Id. at 1035. The original panel held, in part, 

that “for an inmate to claim that a prison’s grievance procedure was effectively unavailable to 
PAGE 9 – OPINION AND ORDER

due to the inmate’s unawareness of the procedure, the inmate must show that the procedure was 

not known and unknowable with reasonable effort.” Id. at 1037. Nurse Gruenwald argues that it 

necessarily follows that an inmate’s subjective lack of awareness of the underlying facts of a 

grievance does not render the administrative remedy “effectively unavailable” such that a failure 

to exhaust is excused. See Albino, 747 F.3d at 1172.

As an initial matter, the Albino panel opinion that Nurse Gruenwald refers to was vacated 

and ordered reheard en banc; thus, the panel opinion “shall not be cited as precedent by or to any 

court of the Ninth Circuit.” Albino v. Baca, 709 F.3d 994, 994-95 (9th Cir. 2013). Upon 

rehearing en banc, the Ninth Circuit held that defendants failed to carry their burden of showing 

that administrative remedies at the jail were available because the jail staff never informed 

inmates, including the plaintiff, about grievance procedures. Albino, 747 F.3d at 1175-76. Thus, 

the Albino panel opinion is no longer good law.

Additionally, the Albino panel opinion involved the inmate’s lack of knowledge of 

grievance procedures, and not a lack of knowledge regarding the facts giving rise to his claim. 

Here, Maggio alleges that he did not know that Dr. Anderson lacked appropriate qualifications

for the surgery until Maggio spoke with Dr. Vrieson on April 9, 2014, and that Maggio 

immediately filed his second and third grievances regarding the referral to Dr. Anderson that 

same day. Maggio argues that the only logical date on which to begin the thirty-day time limit set 

by OAR § 291-109-0150(2) is the date of his conversation with Dr. Vrieson—that is, the date

Maggio became aware of the nature of his injury. Maggio thus requests that the Court apply the

“discovery rule” to his g regarding the referral to Dr. Anderson. 

The Ninth Circuit has described the “discovery rule” as follows:

Because it is inequitable to bar someone who has no idea he has 

been harmed from seeking redress, the statute of limitations has 
PAGE 10 – OPINION AND ORDER

generally been tolled by the “discovery rule.” Under this rule, the 

statute only begins to run once a plaintiff has knowledge of the 

“critical facts” of his injury, which are “that he has been hurt and 

who has inflicted the injury.” United States v. Kubrick, 444 U.S. 

111, 122 (1979). In addition to being a rule of Oregon law, see, 

e.g., Gaston v. Parsons, 318 Or. 247, 255-56 (1994), the discovery 

rule has been observed as a matter of federal law, see Kubrick, 

444 U.S. at 120. 

Bibeau v. Pac. Nw. Research Foundation Inc., 188 F.3d 1105, 1108 (9th Cir. 1999) (footnote 

omitted). Maggio asserts that barring his constitutional claim on the grounds that he failed to 

raise the claim before it actually accrued would be inequitable. Maggio additionally asserts that 

barring his claim in such a manner may also violate his constitutional right to due process.

Nurse Gruenwald responds that the Ninth Circuit has never held that the “discovery rule”

applies to grievance procedures for purposes of the PLRA’s exhaustion requirement, nor has the 

Ninth Circuit held that an inmate’s lack of knowledge of the basis for a potential grievance 

renders the grievance process “effectively unavailable” for purposes of exhaustion.5See Albino, 

747 F.3d at 1172. Neither party has provided the Court with binding authority on this issue, nor 

has the Court been able to uncover any. The Ninth Circuit has suggested in dicta, however, that 

an inmate may lack a meaningful opportunity to exhaust when he does not have knowledge 

 

5 Nurse Gruenwald additionally argues that even if a lack of knowledge could make 

administrative remedies “effectively unavailable,” see Albino, 747 F.3d at 1172, Maggio cannot 

demonstrate that discovering Dr. Anderson’s lack of qualifications was a prerequisite to him 

filing a grievance concerning his surgery. Nurse Gruenwald refers to Maggio’s statement that “I 

have been in pursuit of a resolution for my pain and scarring for over six months,” which he 

makes in each of the four grievances he filed on April 9, 2014. Dkt. 50 at 21-22, 24, 26. Thus, 

Nurse Gruenwald asserts that Maggio could—and should—have filed a grievance prior to 

April 9, 2014. 

Nurse Gruenwald does not dispute, however, that the thirty-day time limit is inapplicable 

to ongoing claims such as the denial of pain medication. See Dkt. 50 ¶ 19. Thus, although 

Maggio arguably could have grieved his ongoing complaints regarding pain management at an 

earlier point in time, he was not required to do so by the ODOC’s Administrative Rules. 

Additionally, Maggio’s allegation that Nurse Gruenwald failed to refer Maggio to a qualified 

hand specialist for his initial surgery is distinct from Maggio’s allegations regarding his pain.
PAGE 11 – OPINION AND ORDER

regarding the nature of his injury. In Ngo v. Woodford, 539 F.3d 1108 (9th Cir. 2008), the Ninth 

Circuit applied statute of limitations principles in determining whether a claim accrued for 

purposes of exhaustion under the PLRA. On December 22, 2000, the prison informed the 

plaintiff that he could not participate in the prison’s special programs following his inappropriate 

activity with a prison church volunteer. Id. at 1109. On June 18, 2001, the plaintiff submitted a 

formal appeal of the prison’s decision, which was denied as untimely because the California 

Code of Regulations requires inmates to file an appeal “‘within 15 working days of the event or 

decision being appealed.’” Id. (quoting Cal. Code Regs. tit. 15, § 3084.6(c)). The plaintiff 

argued, in part, that 15 days did not give him a meaningful opportunity to exhaust his claim. Id.

at 1110. The Ninth Circuit rejected this argument because the plaintiff “had every opportunity to 

appeal earlier because he knew the restriction’s scope and duration as soon as the prison 

classification committee imposed it.” Id. The Ninth Circuit noted that “[t]his is therefore not a 

case where the plaintiff lacked a meaningful opportunity to exhaust on the grounds that he 

‘fail[ed] to appreciate the . . . nature of [his] injuries.’” Id. (quoting Felder v. Casey, 487 U.S. 

131, 146 (1988)) (alterations in original). 

After Ngo, one district court in the Ninth Circuit considered the “discovery rule” when 

determining whether an inmate exhausted his administrative remedies under the PLRA. In Olmos 

v. Ryan, 2013 WL 394879 (D. Ariz. Jan. 31, 2013), the plaintiff alleged a due process violation 

regarding underpayment for work he performed in the prison, among other claims. Id. at *10. 

The defendants argued that the plaintiff did not exhaust his administrative remedies for his due 

process claim because the plaintiff’s informal complaint concerning his pay rate was not filed in 

a timely manner. The plaintiff responded that he was unaware of his claim until the day when he 

filed the grievance, and that he could not be expected to challenge a problem of which he had no 
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knowledge. Citing Ngo, the court rejected the defendants’ argument that because the inmate 

grievance procedures did not refer to a “discovery rule,” no such rule could apply to the 

timeliness of a grievance. Id. at *11. The court found, however, that it could not “determine 

whether the discovery rule applies or, if it does, whether the grievance was timely” on the record 

before it. Id. Thus, the court denied the defendants’ motion to dismiss the plaintiff’s due process 

claim. Id. at *12. 

The purpose of the PLRA’s exhaustion requirement is twofold: to promote efficient 

resolution of disputes, and to protect agency authority by requiring adherence to agency 

procedures and by allowing agencies an opportunity to correct their own mistakes. Woodford, 

548 U.S. at 89. Here, Maggio alleges that he had no knowledge regarding Dr. Anderson’s alleged 

lack of qualifications until Dr. Vrieson informed him that Dr. Anderson was not a hand specialist 

and that Maggio should have been treated by a hand specialist. Later that same day, Maggio filed 

four grievances, two of which explicitly stated that Dr. Anderson was not a specialist in the type 

of surgery that Maggio received and that ODOC officials acted with deliberate indifference when 

they sent Maggio to Dr. Anderson for the surgery.

Maggio notified the prison of his claim and alleges that he did so as soon as he became 

aware of the underlying facts. Thus, this is not a case where a plaintiff “‘disregard[ed] . . . [the 

agency’s] procedures.’” Id. at 89 (third alteration in original) (quoting McCarthy v. Madigan, 

503 U.S. 140, 145 (1992)). Because Maggio grieved his allegation that he improperly received 

surgery from an unqualified medical provider, the prison had the opportunity efficiently to 

resolve the dispute and to correct its own mistake. See id. Thus, Maggio’s actions were not 

contrary to the purpose of the PLRA’s exhaustion requirement.
PAGE 13 – OPINION AND ORDER

The Court declines to find that Maggio’s claims regarding the referral to Dr. Anderson

are barred because he failed to raise them in a grievance within thirty days of his surgery. Such a 

finding would not promote the purposes of the PLRA’s exhaustion requirement, but would be 

inequitable and would ignore “the serious impact on prisoners with legitimate claims who are 

unrepresented, unschooled in litigation, and often ill-equipped to negotiate an administrative 

system far harsher in its procedural requirements than state or federal courts.” Kermit 

Roosevelt III, Exhaustion Under the Prison Litigation Reform Act: The Consequence of 

Procedural Error, 52 Emory L.J. 1771, 1813 (2003). 

Nurse Gruenwald has not presented any evidence that Maggio knew or should have 

known about the allegedly improper referral to Dr. Anderson prior to Maggio’s conversation 

with Dr. Vrieson on April 9, 2014. Thus, based upon the record evidence, there is no genuine 

issue that Maggio knew, or should have known, about the allegedly improper referral to 

Dr. Anderson prior to the date that he filed his grievances. Accordingly, the Court finds that 

Maggio “fail[ed] to appreciate the . . . nature of [his] injur[y]” regarding the allegedly improper 

referral until April 9, 2014, the date that he filed his grievances, and that thus his claim accrued 

on this date. See Ngo, 539 F.3d at 1110 (quotation marks omitted) (fourth alteration added); 

Bibeau, 188 F.3d at 1108.

The thirty-day time limit set by OAR § 291-109-0150(2) should have begun on April 9, 

2014. Thus, Maggio’s grievances regarding the referral to Dr. Anderson were improperly 

screened as untimely. Accordingly, the Court finds that Maggio is excused from exhausting his 

administrative remedies for his allegations regarding follow-up care and inadequate pain 

treatment. See Sapp v. Kimbrell, 623 F.3d 813, 823 (9th Cir. 2010) (holding “that improper 
PAGE 14 – OPINION AND ORDER

screening of an inmate’s administrative grievances renders administrative remedies ‘effectively 

unavailable’ such that exhaustion is not required under the PLRA.”).

B. Follow-Up Care

Dr. Shelton and Nurse Gruenwald argue that Maggio failed properly to grieve any issues 

regarding follow-up care or inadequate pain treatment, and that thus Maggio did not exhaust his 

administrative remedies for his follow-up care and inadequate pain treatment allegations. 

Dr. Shelton and Nurse Gruenwald assert that although Maggio referenced his ongoing pain in his 

first grievance and requested follow-up treatment, Maggio clearly directed his complaints toward 

the ODOC’s initial decision to refer him to Dr. Anderson. Thus, Dr. Shelton and Nurse 

Gruenwald argue that the ODOC properly denied Maggio’s first grievance as untimely.

The Court disagrees. Although Maggio’s second and third grievances were directed 

toward the ODOC’s initial decision to refer Maggio to Dr. Anderson, Maggio’s first grievance

discuss his inadequate pain treatment and desire for follow-up care more generally. In Maggio’s 

first grievance, he states: “Several months after the operation I’m experiencing pain in the 

operated area. Further, I now have protracted disfigurement (scarring) on my right hand that 

needs plastic surgery. Today . . . I was informed by Dr. Vrieson that I should have went to a hand 

specialist.” Dkt. 50 at 21. Maggio states that although he had “been in pursuit of a resolution for 

[his] pain and scarring for over sixth months. . . . [T]oday was the first day a Provider (Vrieson) 

gave me treatment” and prescribed him pain medication. Id. Maggio requests “to be seen by a 

specialist specifically for the hand, and any necessary follow-up treatment. . . . [and] 

compensation for my protracted disfigurement and pain.” Id. Although Maggio mentions in his 

first grievance that he should have gone to a hand specialist, he does so in one sentence. The 

remainder of the grievance includes repeated references to his pain and scarring and a specific 
PAGE 15 – OPINION AND ORDER

request for follow-up treatment. Thus, his grievance was not clearly directed toward the referral 

to Dr. Anderson, as Dr. Shelton and Nurse Gruenwald argue.

The Ninth Circuit has instructed that “[a] grievance suffices to exhaust a claim if it puts 

the prison on adequate notice of the problem for which the prisoner seeks redress. To provide 

adequate notice, the prisoner need only provide the level of detail required by the prison’s 

regulations.” See Sapp v. Kimbrell, 623 F.3d at 824 (citing Jones v. Bock, 549 U.S. 199, 218 

(2007)). Here, OAR § 291-109-0140(1)(b) requires that “[a]n inmate grievance must include a 

complete description of the incident, action, or application of the rule being grieved, including 

date and approximate time.” Maggio’s first grievance described when and where his surgery took 

place, his ongoing pain and scarring in the operated area, the fact that he did not receive any pain 

medication until that day, and his desire to see a hand specialist and receive proper follow-up 

treatment. Dkt. 50 at 21. Thus, Maggio’s first grievance put the prison on notice of his 

complaints regarding follow-up care and inadequate pain treatment. 

Dr. Shelton and Nurse Gruenwald argue that the ODOC was not required to parse 

Maggio’s statements concerning pain and follow-up care from his sentence stating that 

Dr. Vrieson told him that he should have gone to a hand specialist. Dr. Shelton and Nurse 

Gruenwald point to OAR § 291-109-0140(1)(d), which requires that: “An inmate grievance may 

request review of just one matter, action or incident per inmate form.” According to Dr. Shelton 

and Nurse Gruenwald, the ODOC informed Maggio that he could resubmit the grievance if the 

new version complied with the grievance procedural rules, and that Maggio could have 

resubmitted the grievance and addressed only his timely complaints regarding follow-up care and 

pain medication. 
PAGE 16 – OPINION AND ORDER

Maggio’s first grievance, however, was not denied for failure to comply with OAR 

§ 291-109-0140(1)(d). Rather, the ODOC denial letter only discussed OAR § 291-109-0150(2), 

requiring that an inmate file a grievance within thirty days of the date of the incident giving rise 

to the grievance. The ODOC did not inform Maggio that he could have corrected any procedural 

error by omitting the sentence stating that he should have gone to a hand specialist. 

Maggio adequately grieved his follow-up care and pain medication issues. Dr. Shelton 

and Nurse Gruenwald agree that Maggio’s claims about follow-up care and inadequate pain 

treatment were ongoing and not barred by OAR § 291-109-0150(2). Thus, Maggio’s first 

grievance was improperly screened as untimely. Accordingly, the Court finds that Maggio is 

excused from exhausting his administrative remedies for his allegations regarding follow-up care 

and inadequate pain treatment. See Sapp, 623 F.3d at 823 (holding “that improper screening of 

an inmate’s administrative grievances renders administrative remedies ‘effectively unavailable’ 

such that exhaustion is not required under the PLRA.”).

C. TLC Committee Policies and Procedures

Dr. Shelton argues that Maggio never grieved the TLC Committee’s December 2014 

decision denying Maggio a referral to a hand specialist, and that as a result Maggio failed to 

exhaust his administrative remedies regarding his declaratory and injunctive relief allegations 

against Dr. Shelton. Maggio responds that he was not required to grieve his allegations regarding 

the TLC Committee’s decision to deny him a referral to a hand specialist because he had already 

filed grievances regarding the lack of follow-up care and his desire to see a hand specialist. 

Maggio relies on Parzyck v. Prison Health Services, Inc., 627 F.3d 1215 (11th Cir. 2010), 

in which the Eleventh Circuit held that an inmate was not required “to file new grievances 

addressing every subsequent act by a prison official that contributes to the continuation of a 

problem already raised by an earlier grievance” in order to exhaust his administrative remedies. 
PAGE 17 – OPINION AND ORDER

Id. at 1219. Parzyck, however, is distinguishable from this case. Here, Maggio’s declaratory and 

injunctive relief allegations concern the policies and procedures that the TLC Committee used in 

making its December 2014 decision to deny Maggio a referral. These allegations are distinct 

from Maggio’s April 2014 grievances regarding the lack of appropriate follow-up care and 

Maggio’s desire to see a specialist, and thus were not “already raised by an earlier grievance.” Id. 

Because Maggio never grieved his complaints regarding the TLC Committee’s decisionmaking 

process, the prison was not put “on adequate notice of the problem for which [Maggio] seeks 

redress.” See Sapp, 623 F.3d at 824. 

Maggio’s argument that he was unable to grieve his declaratory and injunctive relief 

allegations because he cannot grieve matters that are currently pending in litigation under the 

ODOC Administrative Rules is also unavailing. See OAR § 291-109-0140(3)(i) (stating that an 

inmate cannot grieve “[c]laims or issues that the inmate is pursuing in pending litigation in state 

or federal courts”). Dkt. 50 at 11-12. As Dr. Shelton points out, Maggio could have grieved the 

procedures that the TLC Committee used in making its December 2014 decision up until the 

point that those allegations were included in his Amended Complaint, which was filed on 

March 30, 2015.6 Dkt. 25. Accordingly, the Court finds that Maggio did not properly and timely 

grieve his declaratory and injunctive relief allegations, and thus Dr. Shelton has met his burden 

of proving that Maggio failed to exhaust his administrative remedies regarding those allegations.

CONCLUSION

Dr. Shelton and Nurse Gruenwald’s motion (Dkt. 49) is GRANTED IN PART and 

DENIED IN PART. Dr. Shelton and Nurse Gruenwald’s motion is granted with respect to 

 

6

The Court notes, however, that Maggio’s grievance would still presumably have to 

comply with OAR § 291-109-0150(2), requiring that an inmate file a grievance “within 30 

calendar days of date of the incident giving rise to the grievance.”
PAGE 18 – OPINION AND ORDER

Maggio’s declaratory and injunctive relief claim against Dr. Shelton. Dr. Shelton and Nurse 

Gruenwald’s motion is denied with respect to Maggio’s allegations regarding the referral to 

Dr. Anderson and Maggio’s allegations regarding follow-up care and pain treatment. Maggio’s 

motion under Fed. R. Civ. P. 56(f)(1) (Dkt. 54) is GRANTED IN PART and DENIED IN PART.

Maggio’s motion is granted with respect to Maggio’s allegations regarding the referral to 

Dr. Anderson and Maggio’s allegations regarding follow-up care and pain treatment. Maggio’s 

motion is denied with respect to his declaratory and injunctive relief claim against Dr. Shelton. 

IT IS SO ORDERED.

DATED this 25th day of February, 2016.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge