PAGE 1 – OPINION AND ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

DARRELL WILLIAM PATTEN, a.k.a. 

DARRELL WILLIAM PATTUM,

Plaintiff,

v.

OREGON DEPARTMENT OF 

CORRECTIONS; DR. SNYDER, sued in his 

official and individual capacity; and DR. 

PAULSON, sued in his official and individual 

capacity,

Defendants.

Case No. 3:14-cv-00832-SB

OPINION AND ORDER

BECKERMAN, Magistrate Judge.

Plaintiff Darrell William Patten (“Plaintiff”), a former inmate in the Oregon Department 

of Corrections (“ODOC”), suffered an ankle injury while playing a pick-up basketball game at 

the Columbia River Correctional Institution (“CRCI”). Unhappy with the medical treatment he 

received from ODOC and its two treating physicians (collectively, “Defendants”), Patten filed 

the present action on May 20, 2014, alleging violations of his rights under the Eighth and 

Fourteenth Amendments, and Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. 

§§ 12101-12213.

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PAGE 2 – OPINION AND ORDER

On June 1, 2016, Defendants moved for summary judgment on Plaintiff’s claims, 

arguing, inter alia, that Plaintiff failed to exhaust his administrative remedies before filing a 

court action to redress prison conditions or occurrences, as required by the Prison Litigation 

Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). The Court attempted unsuccessfully to appoint pro 

bono counsel to assist Plaintiff in responding to the pending motion for summary judgment. 

Thereafter, Plaintiff chose not to respond to the motion, despite the Court providing him several 

months and multiple opportunities to do so.

The parties have consented to the jurisdiction of a magistrate judge under 28 U.S.C. § 

636(c). (ECF No. 80.) The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331. 

For the reasons explained below, the Court grants Defendants’ motion for summary judgment 

(ECF No. 95).

ANALYSIS

I. STANDARD OF REVIEW

Summary judgment is appropriate where there are no genuine issues of material fact and 

the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). On a motion 

for summary judgment, the court must view the facts in the light most favorable to the nonmoving party, and all reasonable inferences must be drawn in favor of that party. Porter v. Cal. 

Dep’t of Corr., 419 F.3d 885, 891 (9th Cir. 2005) (citations omitted). The court does not assess 

the credibility of witnesses, weigh evidence, or determine the truth of matters in dispute. 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). “Where the record taken as a whole 

could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue 

for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation 

omitted).

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PAGE 3 – OPINION AND ORDER

II. DISCUSSION

“The PLRA requires prisoners to exhaust available administrative remedies prior to filing 

a . . . lawsuit challenging prison conditions.” Draper v. Rosario, 836 F.3d 1072, 1078 (9th Cir. 

2016) (citations omitted). In Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014) (en banc), the Ninth 

Circuit held that the defendant bears the burden of proving that an administrative remedy was 

available to the prisoner and that he failed to exhaust such remedy, because non-exhaustion is an 

affirmative defense. Id. at 1172. “Once the defendant has carried that burden, the prisoner has the 

burden of production. That is, the burden shifts to the prisoner to 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.” Id. The proper procedure for 

raising non-exhaustion, as clarified in Albino, is by moving for summary judgment. Id. at 1169-

71.

Defendants argue that they are entitled to summary judgment on Plaintiff’s claims 

because he failed to exhaust his administrative remedies, as required by § 1997e(a). As support 

for their argument, Defendants rely on the declaration of Jennifer Carsner (“Carsner”), CRCI’s 

Executive Support and Public Information Officer and a custodian of records for ODOC. 

According to Carsner, Plaintiff could have sought administrative review of his medical treatment 

issues through established grievance procedures.1 (Carsner Decl. ¶ 5.) However, the only 

grievance that could arguably be construed as concerning the issues presented in this case

(CRCI-2014-01-024) (alleging that staff wrongfully took away Plaintiff’s crutches) was not fully 

exhausted. (See Carsner Decl. ¶¶ 8-10, 17-19; Defs.’ Mot. at 5-6, 9-10.) Thus, Defendants have 

met their burden of demonstrating that an administrative remedy was available to Plaintiff and 

 1 Plaintiff is familiar with prison grievance procedures, having filed twenty-nine

grievances between August 30, 2013, and February 6, 2014. (See Carsner Decl. ¶ 11.)

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PAGE 4 – OPINION AND ORDER

that he failed to exhaust such remedy. Accordingly, Defendants are entitled to summary 

judgment because Plaintiff has failed to come forward with evidence showing that existing and 

generally available administrative remedies were effectively unavailable to him.

CONCLUSION

For the foregoing reasons, Defendants’ motion for summary judgment (ECF No. 95) is 

GRANTED.

IT IS SO ORDERED.

DATED this 9th day of March, 2017.

 

STACIE F. BECKERMAN

United States Magistrate Judge

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