PAGE 1 – OPINION AND ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

MICHAEL HEILBRUN,

Plaintiff,

v.

HEATHER VILLANUEVA, et al.,

Defendants.

Case No. 3:14-cv-1706-SI

OPINION AND ORDER

Michael E. Heilbrun, Two Rivers Correctional Institution, 82911 Beach Access Road, Umatilla, 

OR 97882, pro se.

Ellen F. Rosenblum, Attorney General, and Vanessa A. Nordyke, Assistant Attorney General, 

OREGON DEPARTMENT OF JUSTICE, 1162 Court Street NE, Salem, OR 97301. Of Attorneys for 

Defendants.

Michael H. Simon, District Judge.

Plaintiff Michael Heilbrun brings this prisoner civil rights lawsuit pro se against various 

staff members at Two Rivers Correctional Institution (“TRCI”) in Umatilla, Oregon. Plaintiff 

and Defendants have cross-moved for summary judgment. For the reasons that follow, 

Defendants’ motions are granted in part, and Plaintiff’s motions are denied.
PAGE 2 – OPINION AND ORDER

STANDARDS

A. Summary Judgment

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 

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).

When parties file cross-motions for summary judgment, the court “evaluate[s] each 

motion separately, giving the non-moving party in each instance the benefit of all reasonable 

inferences.” A.C.L.U. of Nev. v. City of Las Vegas, 466 F.3d 784, 790-91 (9th Cir. 2006)

(quotation marks and citation omitted); see also Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 

674 (9th Cir. 2010) (“Cross-motions for summary judgment are evaluated separately under [the] 

same standard.”). In evaluating the motions, “the court must consider each party’s evidence, 

regardless under which motion the evidence is offered.” Las Vegas Sands, LLC v. Nehme, 632 

F.3d 526, 532 (9th Cir. 2011). “Where the non-moving party bears the burden of proof at trial, 

the moving party need only prove that there is an absence of evidence to support the non-moving 
PAGE 3 – OPINION AND ORDER

party’s case.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010). Thereafter, the 

non-moving party bears the burden of designating “specific facts demonstrating the existence of 

genuine issues for trial.” Id. “This burden is not a light one.” Id. The Supreme Court has directed 

that in such a situation, the non-moving party must do more than raise a “metaphysical doubt” as 

to the material facts at issue. Matsushita, 475 U.S. at 586.

B. Pro Se Filings

A court must liberally construe the filings of a pro se plaintiff and afford the plaintiff the 

benefit of any reasonable doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). “‘Unless it is 

absolutely clear that no amendment can cure the defect, . . . a pro se litigant is entitled to notice 

of the complaint’s deficiencies and an opportunity to amend prior to dismissal of the action.’” 

Garity v. APWU Nat’l Labor Org., 828 F.3d 848, 854 (9th Cir. 2016) (alteration in original) 

(quoting Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam)). Under Federal 

Rule of Civil Procedure 8(a)(2), however, every complaint must contain “a short and plain 

statement of the claim showing that the pleader is entitled to relief.” This standard “does not 

require ‘detailed factual allegations,’” but does demand “more than an unadorned, the defendantunlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), (quoting Bell 

Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “A pleading that offers ‘labels and 

conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Id. 

(quoting Twombly, 550 U.S. at 555).

BACKGROUND

Plaintiff has been an inmate at TRCI since September 3, 2014. TRCI is operated by the 

Oregon Department of Corrections (“ODOC”). ODOC initially admitted Plaintiff to its custody 

at the Coffee Creek Intake Center (“CCIC”) on July 14, 2014. In the months before Plaintiff 
PAGE 4 – OPINION AND ORDER

entered CCIC, he had been an inmate at the Washington County Jail. Plaintiff was also 

previously incarcerated between September 30, 2010, and January 17, 2012.

Plaintiff alleges that he injured his spine at the Washington County Jail in March 2014 

and was prescribed narcotic pain medication, a walker, and a wheelchair.

1 When Plaintiff entered 

ODOC custody at CCIC in July 2014, Plaintiff alleges, medical staff reduced his dosage of 

narcotic pain medication. On September 3, 2014, ODOC transferred Plaintiff to TRCI, and

Defendant Gruenwald allegedly immediately deprived Plaintiff of all of his pain medication. In

September 2014, TRCI medical staff allegedly returned Plaintiff to a lower dose of narcotic pain 

medication and then removed him from that dose.

Plaintiff also alleges that ODOC housed him in an active gang unit at TRCI. Plaintiff 

alleges that on September 8, 2014, a gang member attacked Plaintiff. As a result, ODOC 

transferred Plaintiff to the disciplinary segregation unit (DSU) and housed him there from 

September 8 until October 2, 2014. While in the DSU, Plaintiff alleges, staff members deprived 

him of the use of his walker and wheelchair. Without these mobility aids, Plaintiff alleges, he 

could not attend a disciplinary hearing relating to the September 8th altercation and present his 

case that he acted only in self-defense. Plaintiff also alleges that his lack of mobility aids in the 

DSU caused him to suffer various indignities in his inaccessible cell.

DISCUSSION

Defendants move for summary judgment against all claims.2First, Defendants argue that 

Claims 1-3, 5, and 7-11 should be dismissed without prejudice because Plaintiff has failed to 

 

1 Because the Court dismisses most of Plaintiff’s claims without prejudice for failure to 

exhaust the available administrative remedies, the Court summarizes Plaintiff’s allegations in the 

Second Amended Complaint in order to provide context for Defendants’ exhaustion arguments.

2

The Second Amended Complaint (ECF 94) (the “SAC”) divides Plaintiff’s claims into 

different sections and subsections, but does not number them. Many of these claims are 
PAGE 5 – OPINION AND ORDER

exhaust available administrative remedies before bringing these claims. Second, Defendants 

argue that there are no genuine disputes of material fact and that they are entitled to judgment as 

a matter of law against Claims 4, 6, and 12-14.3

Plaintiff cross-moves for summary judgment on all claims. Because the Court finds that 

Plaintiff has failed to exhaust available administrative remedies on Claims 1-3, 5, and 7-11 and 

that these claims are largely duplicative of Claims 4, 6, 12, and 13, the Court dismisses Claims 1-

13 without prejudice for failure to exhaust. To the extent that Plaintiff Claims 4, 6, 12, and 13 are 

not duplicative of Plaintiff’s unexhausted claims, the Court grants summary judgment to 

Defendants against these claims. The Court also dismisses Claim 14 for the reasons discussed 

below.4This disposes of all claims asserted by Plaintiff.

A. Exhaustion of Administrative Remedies

The Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e, provides:

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.

Id. § 1997e(a). The PLRA’s exhaustion doctrine requires “prisoner plaintiffs [to] pursue a 

remedy through a prison grievance process as long as some action can be ordered in response to 

 

duplicative of each other. For clarity, the Court has assigned numbers to Plaintiff’s claims and 

identifies them by reference to page and line numbers in the SAC.

3 Defendants also originally argued that Defendant ODOC should be dismissed because it 

is entitled to sovereign immunity under the Eleventh Amendment. The Court has since granted 

Plaintiff’s motion to voluntarily dismiss ODOC. Accordingly, ODOC’s motion is moot.

4 On May 30, 2017, Plaintiff filed a “Response in Opposition to Summary Judgment and 

Cross Move for Summary Judgment.” This filing contains additional arguments in opposition to 

Defendants’ motions for partial summary judgment and in support of Plaintiff’s cross-motions 

for partial summary judgment. The Court construes this filing as an additional response or reply 

to the pending motions. The Court considers the filing and accompanying declaration in this 

Opinion and Order.
PAGE 6 – OPINION AND ORDER

the complaint.” Brown v. Valoff, 422 F.3d 926, 934 (9th Cir. 2005). The prisoner must have 

exhausted all of his available remedies before filing suit. McKinney v. Carey, 311 F.3d 1198, 

1200-01 (9th Cir. 2002). A failure to exhaust, however, may be excused “when circumstances 

render administrative remedies ‘effectively unavailable.’” Sapp v. Kimbrell, 623 F.3d 813, 822 

(9th Cir. 2010) (quoting Nunez v. Duncan, 591 F.3d 1217, 1226 (9th Cir. 2010)). A prisoner’s 

failure to exhaust available administrative remedies is an affirmative defense that the defendant 

must establish. Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). “[A] defendant is entitled to 

summary judgment under Rule 56” when “undisputed evidence viewed in the light most 

favorable to the prisoner shows a failure to exhaust.” Id.

1. ODOC’s Inmate Grievance Process

ODOC’s three-level grievance process for inmates’ complaints is contained in

Chapter 291, Division 109 of the Oregon Administrative Rules (“OARs”). At the first level, “[i]f 

an inmate is unable to resolve an issue through informal communications, the department 

encourages the inmate to seek resolution of the issue by submitting a written grievance using the 

department’s approved inmate grievance form (CD 117) . . . .” OAR 291-109-0140(l)(a). “An 

inmate may file a single grievance concerning” the following matters, which include: 

“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, contractor, or volunteer of [ODOC] or the

Oregon Corrections Enterprises;” any “oversight or error affecting an inmate;” the “loss or 

destruction of [personal] property;” and other matters. OAR 291-109-0140(2)(a)-(d), (f). After an 

inmate submits a grievance, a grievance coordinator obtains a response from the “appropriate 

staff or, if deemed more suitable, the appropriate manager.” OAR 291-109-0160(1)(b).
PAGE 7 – OPINION AND ORDER

At the second level of the grievance process, “[a]n inmate may appeal the initial 

grievance response” to the “functional unit manager.” OAR 291-109-0170(1)(a), (d). The third 

level is an appeal of the functional unit manager’s decision to the Assistant Director or his 

designee. OAR 291-109-0170(2). “The Assistant Director’s or designee’s decision on an 

inmate’s grievance appeal is final, and is not subject to further review.” OAR 291-109-

0170(2)(f). Thus, a prisoner exhausts the available administrative remedies when he obtains the 

decision of the Assistant Director or a designee.

2. Plaintiff’s Failure to Exhaust Administrative Remedies

Plaintiff does not argue that he completed ODOC’s grievance process for any claims. To 

the extent that Plaintiff’s filings are ambiguous and mindful of the duty liberally to construe pro 

se filings, the Court finds that whether or not Plaintiff concedes this point, Plaintiff has not 

exhausted his administrative remedies on Claims 1-3, 5, and 7-11.

a. Claim 1

Claim 1 alleges that Defendants violated Plaintiff’s Eighth Amendment rights when they 

deprived him of narcotic pain medication in September 2014. ECF 94 at 21:535-22:580. Plaintiff 

filed numerous grievances related to a reduction in his pain medication in September 2014, but 

did not complete the three-step process on any such grievance before bringing this claim on

October 27, 2014. ECF 2 at 4; ECF 151 ¶¶ 13, 19, 21, 22, 27, 30, 34, 37. Defendant Eynon, the 

grievance coordinator, also returned several of these grievances either because Plaintiff had 

already filed two grievances that week or six grievances that month in violation of OAR 291-

109-0180(1); ECF 151 ¶¶ 21-22, or because Plaintiff had already filed a grievance or 

discrimination complaint regarding that incident or issue in violation of OAR 291-006-0015(3)-

(4); OAR 291-109-0140(5)-(6); ECF 151 ¶¶ 30, 34, 37. Plaintiff could have, but did not, refile 

these grievances or pursue his original grievance on the issue. Thus, Plaintiff failed to exhaust 
PAGE 8 – OPINION AND ORDER

his administrative remedies on Claim 1.5

b. Claim 2

Claim 2 alleges that Defendant Lytle violated Plaintiff’s Eighth Amendment rights by

failing to protect Plaintiff from assault by another inmate on September 8, 2014. ECF 94 

at 22:581-23:593. Plaintiff did not initiate a grievance about Lytle’s alleged failure to protect 

him. ECF 151 ¶ 74. Thus, Plaintiff failed to exhaust his administrative remedies on Claim 2.

c. Claim 3

Claim 3 alleges that Defendants Frazier and Vanderkooy violated Plaintiff’s Eighth

Amendment rights when, on September 8, 2014, Plaintiff “was [d]rug down [t]hree hall ways to 

the [DSU] by his shoulder” following his altercation with the other inmate. ECF 94 at 23:594-

613. Plaintiff did not initiate any grievances against Defendants Frazier or Vanderkooy. ECF 151 

¶ 74. Thus, Plaintiff failed to exhaust his administrative remedies on Claim 3.

d. Claims 5 and 7

The Court discusses Claims 5 and 7 together because they substantially overlap.

6 Claim 5 

alleges, in part, that “all supervisors” violated Plaintiff’s Eighth Amendment rights when they 

 

5 On September 5, 2014, Plaintiff filed a grievance, stating that he had been receiving 

narcotic pain medication while he was at Washington County Jail, had been at Washington 

County Jail until July 2014, and that “while at ODOC, most of my pain medication has been 

taken away.” ECF 151-1 at 14. An inmate must file a grievance within 30 days of the date of 

incident giving rise to the grievance. OAR 291-109-0150(2). Plaintiff entered the custody of 

ODOC on July 14, 2014, and allegedly received a decrease in his dosage of medication at that 

time. ECF 2 at 4; ECF 151 ¶ 3. Because Plaintiff’s grievance filed in September 2014 

complained about an incident that occurred in July 2014, the grievance coordinator returned the 

grievance to Plaintiff. ECF 151-1 at 13. Plaintiff could have, but did not, refile his grievance in 

order to complain about the deprivation of his medication in September 2014.

6 Claim 5 also alleges that Plaintiff was placed in the DSU without proper cause or due 

process. Because these allegations are duplicative of Claim 6, the Court assesses this portion of 

Claim 5 together with Claim 6.
PAGE 9 – OPINION AND ORDER

denied him the assistance of his wheelchair or walker on September 8, 2014.

7

ECF 94 at 24:636-

45. Plaintiff did not initiate any grievances regarding the September 8th denial of his wheelchair 

or walker. ECF 151 ¶ 74. Claim 7 alleges that Defendants Whelan, Jorgenson, Edison, AkanaSeawater, and Enriquez violated Plaintiff’s Eighth Amendment rights by failing to provide 

Plaintiff with his walker or wheelchair while he was in the DSU from September 8 until

October 2, 2014. ECF 94 at 26:673-99A. Plaintiff’s lack of walker or wheelchair allegedly 

prevented him from showering and obtaining “fresh air” and required him to crawl around the 

floor. Plaintiff filed numerous grievances pertaining to conditions in the DSU. Because Plaintiff 

states this claim in his first Complaint filed on October 27, 2014, ECF 2 at 5, Plaintiff must have 

exhausted his administrative remedies before October 27, 2014.

On September 25, 2014, Plaintiff filed a grievance, stating that two officers prevented 

him from attending an appointment with the doctor on September 22, 2014, by denying him use 

of his walker or wheel chair. ECF 151-2 at 10. A staff member responded on September 29, 

2014, stating that according to medical staff, “you do not require a walker or wheelchair.” 

ECF 151-2 at 9. Plaintiff filed and then refiled an appeal, but the grievance coordinator returned 

both of these appeals to Plaintiff for expanding on the scope of the original grievance in violation 

of OAR 291-109-0170(1)(a)(A). ECF 151 ¶ 15; ECF 151-2 at 5-8. On October 24, 2014, the 

grievance coordinator stated that Plaintiff had 14 days to resubmit his appeal. ECF 151-2 at 5. 

Rather than file another appeal, Plaintiff filed suit on October 27, 2014.

Plaintiff filed four additional grievances relating to the denial of his wheelchair or a 

walker while in the DSU, but did not complete the three-step process on any of these grievances

 

7

It is unclear whether Claim 5, which specifically names Defendants Myrick and Boman, 

treats Defendants Myrick and Boman as “all supervisors,” or whether they are only two of the 

relevant supervisors.
PAGE 10 – OPINION AND ORDER

before filing suit. ECF 151 ¶¶ 26-29, 31, 37. Moreover, the grievance coordinator properly 

returned these additional grievances because they all complained about the same issue as the first 

grievance, namely the denial of his walker or wheelchair. See OAR 291-109-0140(5); ECF 151 

¶¶ 28, 31, 37. Plaintiff also filed a discrimination complaint regarding the denial of his walker or 

wheelchair while in the DSU, but the grievance coordinator returned this complaint to Plaintiff 

because he had already filed a grievance concerning the issue. ECF 151 ¶ 30. Thus, Plaintiff 

failed to exhaust his administrative remedies on Claims 5 and 7.

e. Claim 8

Claim 8 alleges that Defendants violated Plaintiff’s Eighth Amendment rights and denied 

him equal protection of the laws in violation of the Fourteenth Amendment by preventing him 

from showering, forcing him to remain in his cell, and “making him urinate down a drain” during 

the entirety of the 25-day period he spent in the DSU. ECF 94 at 27:700-21. Plaintiff never filed 

grievances complaining of being prevented from showering or leaving his cell, but he did file a 

grievance complaining of being denied a urinal. ECF 151 ¶¶ 20, 74. The grievance coordinator 

rejected this grievance because Plaintiff had already filed six grievances that month in violation 

of OAR 291-109-0180(1). ECF 151 ¶ 20. Plaintiff could have, but did not, refile this grievance

the following month. Thus, Plaintiff failed to exhaust his administrative remedies on Claim 8.8

f. Claim 9

Claim 9 alleges that Defendants Whelan and Dieter violated Plaintiff’s Fifth, Eighth, and 

Fourteenth Amendment rights by denying Plaintiff a walker between October 14 and 17, 2014. 

ECF 94 at 27:722-28:743. Plaintiff did not file a grievance against Defendants Whelan or Dieter 

 

8

Plaintiff also filed a grievance complaining that he could not sign up for sick call when 

he was in the DSU because no nurse came to his cell. ECF 151 ¶ 24. Plaintiff did not complete 

the three-step process on this grievance before bringing this claim on October 27, 2014. ECF 2 

at 5; ECF 151 ¶ 25.
PAGE 11 – OPINION AND ORDER

for depriving Plaintiff of his walker. ECF 151 ¶ 74. Plaintiff filed a grievance against Defendant 

Gruenwald, stating that she denied him a wheelchair and walker on October 15, 2014. ECF 151-

3 at 5. The grievance coordinator returned the grievance to Plaintiff because it was duplicative of 

previous grievances in violation of OAR 291-109-0140(5) and requested review of multiple 

incidents in violation of OAR 291-109-0140(1)(d). ECF 151 ¶ 33. Plaintiff also filed two

discrimination complaints, stating that Defendant “Gruenwald and staff” or “medical staff” 

deprived him of his walker and wheelchair, but the grievance coordinator returned these

grievances because Plaintiff had already filed multiple grievances relating to the denial of his 

walker or wheelchair. ECF 151 ¶¶ 37-38; ECF 151-3 at 12-15. Plaintiff could have, but did not 

pursue his first grievance on the issue. Thus, Plaintiff failed to exhaust his administrative 

remedies on Claim 9.9

g. Claim 10

Claim 10 alleges that Defendants’ denied Plaintiff equal protection of the laws in 

violation of the Fourteenth Amendment by depriving Plaintiff of his wheelchair or walker while 

Plaintiff was housed in the DSU between September 8 and October 2, 2014. ECF 94 at 28:744-

50. Claim 10 also alleges that Defendants Gruenwald and Norton denied Plaintiff equal 

protection of the laws by depriving him of narcotic pain medication and not authorizing surgery 

on Plaintiff’s back. The Court has previously discussed Plaintiff’s failure to exhaust his 

administrative remedies for his claims that Defendants deprived him of narcotic pain medication, 

a wheelchair, and a walker. Plaintiff’s remaining grievances on these issues, filed after he 

brought suit, do not satisfy the exhaustion requirement. See ECF 151 ¶¶ 42-44. Thus, Plaintiff 

failed to exhaust his administrative remedies on Claim 10.

 

9 Because the Court finds that Plaintiff has not exhausted his administrative remedies, the 

Court does not consider Defendants’ alternative argument that Claim 9 fails as a matter of law.
PAGE 12 – OPINION AND ORDER

h. Claim 11

Claim 11 alleges various violations of Plaintiff’s due process rights by Defendants Willis, 

Hunter, and Eynon. ECF 94 at 29:757-78. Plaintiff claims that Defendant Willis violated his due 

process rights by not transporting him to the disciplinary hearing on September 15, 2014.

Plaintiff did not file any grievance specifically naming Defendant Willis, but instead filed two

grievances stating that officers denied him use of a wheelchair or walker to attend the

disciplinary hearing. ECF 151 ¶¶ 28, 31, 74; ECF 151-2 at 32; ECF 151-3 at 3. The grievance 

coordinator returned the grievance to Plaintiff because he had already filed a grievance

concerning the denial of a wheelchair or walker. See OAR 291-109-1040(5); ECF 151 ¶¶ 28, 31;

ECF 151-2 at 31; ECF 151-3 at 2. Plaintiff could have, but did not, pursue his first grievance on 

the issue.

Plaintiff also claims that Defendants Hunter and Eynon violated his due process rights by 

not allowing him to attend Admission & Orientation (A&O) until October 17, 2014. Plaintiff did 

not file a grievance concerning this conduct. ECF 151 ¶ 74. Thus, Plaintiff failed to exhaust his 

administrative remedies on Claim 11.10

3. Whether Administrative Remedies Were Effectively Unavailable

Plaintiff argues that his failure to exhaust his administrative remedies should be excused 

because ODOC’s grievance process was effectively unavailable to him. First, Plaintiff asserts 

that he was unaware of the grievance process until he attended A&O at TRCI on October 17, 

 

10 Claim 11 also alleges that Defendant Myrick violated Plaintiff’s due process rights at 

the disciplinary hearing by failing to review surveillance footage of Plaintiff’s September 8th

altercation with another inmate. Because these allegations are duplicative of Claims 4 and 6, the 

Court assesses this portion of Claim 11 together with Claims 4 and 6.
PAGE 13 – OPINION AND ORDER

2014, and received information on the grievance process.

11 See Bryant v. Sacramento Cty. 

Jail, 2008 WL 410608, at *4 (E.D. Cal. Feb. 12, 2008) (holding that administrative remedies 

were unavailable to a plaintiff when there was “no evidence submitted that plaintiff ever 

received, saw or otherwise was notified of this jail’s grievance procedure”); ECF 240 ¶¶ 6, 7, 15; 

ECF 240-1 at 1. Plaintiff’s argument is unavailing because it is undisputed that Plaintiff filed 

multiple grievances at CCIC, ECF 251 at 8-9, including one on July 16, 2014, in which he 

complained that his pain medications had been “taken away.” ECF 251 at 9. Moreover, Plaintiff 

concedes that he filed grievances as early as 2010, 2011, and 2012. ECF 265 at 7; ECF 265-1 

at 7. Thus, the Court finds that Plaintiff was aware of the ODOC grievance process.

Second, Plaintiff argues that even if he was aware of the existence of the grievance 

process, he did not understand how to participate in that process. Plaintiff argues that he did not 

know how properly to file grievances until he first obtained a copy of the relevant OARs. There 

is a factual dispute as whether that occurred in September or October 2014.

12 Whether or not 

Plaintiff received the OARs in September or October 2014, however, it is undisputed that

Plaintiff was in contact with the law library as early as July 18, 2014. ECF 248 at 2 ¶ 4. Thus,

Plaintiff had the resources at his disposal with which to navigate the grievance process. See Hall 

 

11 Defendants argue that Plaintiff attended A&O at TRCI on October 8, 2014, not 

October 17, 2014. See ECF 250 ¶ 6. Whether Plaintiff attended A&O at TRCI on October 8 

or 17, 2014, ODOC records indicate that Plaintiff attended A&O at CCIC on July 16, 2014, 

ECF 249 ¶ 4, Plaintiff’s “uncorroborated and self-serving” allegations to the contrary 

notwithstanding. Kennedy v. Applause, Inc., 90 F.3d 1477, 1481 (9th Cir. 1996); ECF 240-1 

at 49; ECF 265-1.

12 Plaintiff asserts that he first obtained a copy of the OARs from the TRCI library on 

October 31, 2014. ECF 240 ¶ 6. Defendants dispute Plaintiff’s assertion, pointing to evidence 

that a legal assistant responded to Plaintiff’s request for the OARs on September 19, 2014, and 

stated that the OARs had been “checked out for two weeks.” ECF 250 at 6. Defendants, 

however, do not offer evidence that Plaintiff actually received a copy of the OARs on 

September 19, 2014.
PAGE 14 – OPINION AND ORDER

v. Sheahan, 2001 WL 111019, at *2 (N.D. Ill. Feb. 2, 2011) (“[A]s long as the institution has 

made a reasonable, good-faith effort to make a grievance procedure available to inmates; an 

inmate may not close his eyes to what he reasonably should have known.”). Moreover, the Court 

does not find that ODOC’s grievance process is so complex as to be “‘unknowable’—so that no 

ordinary prisoner can make sense of what it demands.” Ross v. Blake, --- U.S. ---, 136 S. 

Ct. 1850, 1859 (2016) (quoting Goebert v. Lee Cty., 510 F.3d 1312, 1323 (11th Cir. 2007)).13

Third, Plaintiff argues that TRCI staff intimidated and prevented him from filing 

grievances. Ross, 136 S. Ct. at 1860 (holding that administrative remedies are unavailable “when 

prison administrators thwart inmates from taking advantage of a grievance process through 

machination, misrepresentation, or intimidation”). The Ninth Circuit has adopted the Eleventh 

Circuit’s test for evaluating intimidation, which holds that a staff member’s threat renders the 

grievance process unavailable when the plaintiff establishes that: 

(1) the threat actually did deter the plaintiff inmate from lodging a grievance or 

pursuing a particular part of the process; and (2) the threat is one that would deter 

a reasonable inmate of ordinary firmness and fortitude from lodging a grievance 

or pursuing the part of the grievance process that the inmate failed to exhaust.

Turner v. Burnside, 541 F.3d 1077, 1085 (11th Cir. 2008); see McBride v. Lopez, 807 F.3d 982,

988 (9th Cir. 2015) (adopting the Turner test).

The Court finds that Plaintiff does not make the requisite showing under Turner. Plaintiff 

asserts that Defendant Eynon rejected Plaintiff’s grievances “for prejudice reasons” and “would 

not follow the institution rules,” leaving “[him] no remedy available.” ECF 240 ¶ 8. Plaintiff also

states that Defendant Eynon, the grievance coordinator, went to Plaintiff’s cell in October 2014 

and told Plaintiff that he “could not file discrimination complaints and/or grievances together.” 

 

13 Plaintiff also argues that staff members did nothing to assist him in navigating the 

grievance process. As discussed, the record is undisputed that Plaintiff had access to and made 

use of the law library.
PAGE 15 – OPINION AND ORDER

ECF 240 ¶ 9. Plaintiff further points to an email dated October 16, 2014, in which Defendant

Eynon states that Plaintiff “sends me bunches—I met with him and most of his issues are 

medical (we get tons of those)—guess I will see if I had any impact on him.” ECF 240-1 at 16.

It is undisputed that Defendant Eynon rejected the vast majority of Plaintiff’s grievances 

because Plaintiff had already brought his grievances in this lawsuit in violation of OAR 291-109-

0140(3)(h), not for “prejudice reasons.” See ECF 151 ¶¶ 13, 19, 25, 27, 41, 45, 47-49, 51, 59, 62, 

64, 67, 72. Moreover, Plaintiff filed numerous, often duplicative grievances during the months of 

September and October 2014 and continued to file grievances for months thereafter. See

generally ECF 151. Thus, Defendant Eynon did not “actually . . . deter [Plaintiff] from lodging a 

grievance.” Turner, 541 F.3d at 1085.

Plaintiff also states that after he complained in September 2014, two officers denied him 

his walker or wheelchair, Defendant Akana-Seawater “came down to my cell, not to help me but 

to intimidate me, and tell me not to file grievances . . . .” ECF 240 ¶ 10. Plaintiff filed a 

grievance regarding this incident. ECF 151 ¶¶ 14-18. Thus, Defendant Akana-Seawater’s 

conduct, even if true, does not constitute intimidation under Turner.

14

In conclusion, the Court holds that Plaintiff has failed to exhaust available administrative 

remedies on Claims 1-3, 5, and 7-11. The Court dismisses these claims without prejudice.

 

14 Additionally, Plaintiff argues that the grievance process was unavailable because it was

in “disarray.” Plaintiff points to evidence that Defendant Eynon became grievance coordinator at 

TRCI only one month before Plaintiff entered TRCI, ECF 239 at 4, and sent an email concerning 

inmate grievances, including Plaintiff’s, with the subject line “Help me please.” ECF 240-1 

at 15-16. This argument is unavailing because it is undisputed that Defendant Eynon responded 

to every grievance that Plaintiff filed. See generally ECF 151.
PAGE 16 – OPINION AND ORDER

B. Plaintiff’s Remaining Claims

1. Claim 4

Claim 4 alleges that Defendants Deacon and Myrick violated Plaintiff’s Eighth 

Amendment rights by imposing on Plaintiff a sanction of 25-days in the DSU and 14-days loss of 

privileges for Plaintiff’s altercation with another inmate on September 8, 2014. ECF 94 

at 23:614-24:635. The Court construes Claim 4 as also alleging a violation of Plaintiff’s 

Fourteenth Amendment Procedural Due Process rights when it alleges that Defendants Deacon 

and Myrick improperly sanctioned Plaintiff because Plaintiff “never even touched his attacker.”

In apparently concluding to the contrary, Defendants Deacon and Myrick allegedly relied 

improperly on the written testimony of an officer who did not have a clear view of the

altercation, never took the testimony of an officer who was four-feet away from the altercation, 

and did not review surveillance video of the altercation, claiming, incorrectly, that no such video

exists. 

In his SAC, Plaintiff also alleges that officers, including Defendant Willis, denied 

Plaintiff the opportunity to be present at the hearing by not providing him with a wheelchair or 

walker to attend the hearing. ECF 94 at 5:131. The Court has already found that Plaintiff has not 

exhausted the available administrative remedies on this claim. See supra Sections A.2.d, g, h 

(analysis of Claims 5, 7, 10, and 11). Thus, the Court dismisses this portion of Claim 4 without 

prejudice.

a. Procedural Due Process

Defendants argue that they did not violate Plaintiff’s due process rights because there is 

some evidence to support ODOC’s conclusion that Plaintiff and the other inmate were engaged 

in a mutual fight. The minimum requirements of procedural due process in a prison disciplinary 

hearing are satisfied when “there was some evidence from which the conclusion of the 
PAGE 17 – OPINION AND ORDER

administrative tribunal could be deduced.” Superintendent, Mass. Corr. Inst., Walpole v. 

Hill, 472 U.S. 445, 455 (1985). This standard has been met.

According to his written statement, Officer Kester was in the “unit 6 control point” on 

September 8, 2014, when he saw Plaintiff and another inmate “standing in the dayroom near the 

control point.” ECF 159 at 9. Officer Kester continues: 

I then saw [the other inmate] hit Inmate Heilburn [sic] with a 

closed fist punch in the head. Officer Vanderkooy was the first to 

respond. He approached [the other inmate] and Inmate Heilburn 

[sic] with his spray pulled out and yelled at them to stop fighting 

multiple times. [The other inmate] stopped fighting and placed his 

hands against the wall.

ECF 159 at 9. Defendant Vanderkooy completed a misconduct report, which states that he “saw 

inmate Heilburn . . . exchanging strikes with [the other inmate]. These strikes were closed first 

strikes to the face and head.” ECF 159 at 8. Defendant Vanderkooy charged Plaintiff with Inmate 

Assault I and Disrespect I. ECF 159 at 8.

On September 15, 2014, Defendant Deacon held a disciplinary hearing. Defendant 

Deacon found that the evidence did not support the charge of Inmate Assault I, but found that the 

lesser charge of Assault II was warranted. ECF 159 at 4. Assault II requires a finding that the 

inmate “[i]s involved in a mutual fight in a location or under circumstances which creates a 

threat to the safety, security, or orderly operation of the facility, such as a dining hall or 

recreation area.” OAR 291-105-0015(2)(d)(C). Defendant Deacon also found that the evidence 

supported the charge of Disrespect I, which is warranted when an inmate “directs hostile, sexual, 

abusive or threatening language or gestures, verbal or written, towards or about another person 

that involves . . . physical threat to the other person.” OAR 291-105-0015(2)(f); ECF 159 at 5.

Plaintiff argues that Defendants ignored the video surveillance footage of the altercation.

Defendants concede that they did not view the surveillance video in the disciplinary hearing, 
PAGE 18 – OPINION AND ORDER

ECF 158 at 4, but have filed it with the Court. ECF 159 at 14. The Court has reviewed the 

surveillance video. When viewed in the light most favorable to Plaintiff, the other inmate appears 

more aggressive than Plaintiff and throws the first punch, but the surveillance video also clearly 

shows Plaintiff throwing at least one punch. Moreover, the video shows Plaintiff in a large open 

space resembling a dining hall where several other inmates are present. Thus, in addition to the 

statements of two eyewitness officers, the surveillance video provides additional evidence that 

Plaintiff was involved in a “mutual fight in a location or under circumstances which creates a 

threat to the safety, security, or orderly operation of the facility, such as a dining hall or 

recreation area.” OAR 291-105-0015(2)(d)(C). Thus, the Court finds that “there was some 

evidence from which the conclusion of the administrative tribunal could be deduced.”15 Hill, 472 

U.S. at 455. The Court grants summary judgment for Defendants against this claim.

b. Eighth Amendment

In order to establish an Eighth Amendment violation based on prison conditions, an 

inmate must make both “an objective showing that the deprivation was ‘sufficiently serious’ to 

form the basis for an Eighth Amendment violation” and “a subjective showing that the prison 

official acted ‘with a sufficiently culpable state of mind.’” Hearns v. Terhune, 413 F.3d 1036, 

1042 (9th Cir. 2005) (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). “[O]nly those 

deprivations denying ‘the minimal civilized measure of life’s necessities,’ are sufficiently grave 

to form the basis of an Eighth Amendment violation.” Wilson, 501 U.S. at 298 (internal citation 

omitted) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). Even if Plaintiff’s sentence 

of 25 days in the DSU and 14 days loss of privileges were “sufficiently serious” to form the basis 

 

15 The fact that one witness may have had a different interpretation of the altercation does 

not defeat the conclusion that there was “some evidence” to support Defendant Deacon’s 

findings in the disciplinary hearing. See ECF 267-1 at 28-29.
PAGE 19 – OPINION AND ORDER

of an Eighth Amendment violation, see Thomas v. Ramos, 130 F.3d 754, 763-65 (7th Cir. 1997) 

(finding that an inmate’s housing in segregation for 70 days did not violate the Eighth 

Amendment), Plaintiff offers no evidence that any prison officials acted with a culpable state of 

mind. The undisputed evidence in the record is that Defendant Deacon’s “recommended sanction 

was based solely on Inmate Heilbrun’s conduct during the September 8, 2014 assault.” ECF 159 

at 3 ¶ 12. Moreover, Plaintiff’s sanction fell in the middle of ODOC’s recommended range of 20-

30 days in the DSU for his offenses. ECF 160 at 28 (describing sanction for Inmate Assault II). 

Thus, the Court grants summary judgment for Defendants against this claim.

2. Claim 6

Claim 6 alleges three acts by Defendants. ECF 94 at 25:646-72. First, Defendant Myrick

was allegedly in possession of the surveillance video of Plaintiff’s altercation with another 

inmate, but concealed that video from Defendant Deacon, who conducted the disciplinary 

hearing. Second, Defendant Deacon is liable for allegedly showing the video to Defendant 

Boman, who, as a result of viewing the video, denied Plaintiff his wheelchair and walker to 

travel to the disciplinary hearing. Third, Defendants Archer and Boman allegedly could have 

“stepped in” or “interceded” in order to provide Plaintiff with his walker or wheelchair to attend 

the disciplinary hearing, but did not. To the extent that this claim is not duplicative of Plaintiff’s 

unexhausted claims, there is no evidence in the record that: (1) Defendant Myrick concealed the 

surveillance video from Defendant Deacon; (2) Defendant Deacon showed the surveillance video

to Defendant Boman; or (3) Defendants Archer and Boman could have “stepped in” or 

“interceded.” Moreover, there is no evidence that any of these alleged “supervisors” had the 

requisite personal involvement in their subordinates’ allegedly unconstitutional actions to be 

personally liable to Plaintiff. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (“A 

supervisor is only liable for constitutional violations of his subordinates if the supervisor 
PAGE 20 – OPINION AND ORDER

participated in or directed the violations, or knew of the violations and failed to act to prevent 

them.”). Thus, the Court grants summary judgment for Defendants against Claim 6.

3. Claim 12

Claim 12 alleges that Plaintiff’s denial of narcotic pain medication, his placement in the 

DSU, his denial of a wheelchair or walker, the alleged concealment of the surveillance video of 

his altercation with another inmate, and other previously discussed actions allegedly taken by 

Defendants were all in retaliation against Plaintiff for filing grievances, filing a Notice of Tort, 

and calling the Inspector General’s and the Governor’s Offices. ECF 94 at 29:779-30:802. To the 

extent that this claim is not duplicative of Plaintiff’s unexhausted claims, the record contains no 

evidence that Plaintiff’s exercise of his First Amendment rights caused Defendants to take these 

alleged actions. See Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) (“[T]he plaintiff 

must allege a causal connection between the adverse action and the protected conduct.”). Thus, 

the Court grants summary judgment for Defendants against Claim 12.

4. Claim 13

Claim 13 alleges that the denial of Plaintiff’s walker and wheelchair and associated 

injuries that Plaintiff allegedly suffered in the DSU caused him severe emotional distress.

ECF 94 at 30:803-31:837B. To the extent this claim alleges an Eighth Amendment violation,

Plaintiff failed to exhaust the available administrative remedies on this claim. See supra Sections 

A.2.d, e, g (analysis of Claims 5, 7, 8, and 10). To the extent that Plaintiff states a claim for

common law intentional infliction of emotional distress, Defendants, all TRCI staff members, 

argue that the Court must “substitute [ODOC] as the defendant” because Defendants were all 

“acting within the scope of their employment or duties.”16 Or. Rev. Stat. § 30.265(3). The Court 

 

16 Plaintiff offers no argument or evidence to the contrary.
PAGE 21 – OPINION AND ORDER

agrees with Defendants. Because the State of Oregon has not consented to suit in federal court,

Simmons v. Or. Dep’t of Corrs., 2014 WL 4220784, No. 2:11-cv-1500-SI, at *2 (D. Or. Aug. 25, 

2014); Jensen v. Whitlow, 334 Or. 412, 416-17 (2002) (en banc), Plaintiff’s intentional infliction 

of emotional distress claim against ODOC is barred by the State of Oregon’s Eleventh 

Amendment immunity. See Alabama v. Pugh, 438 U.S. 781, 782 (1978). Thus, the Court 

dismisses this claim without prejudice.

5. Claim 14

Claim 14 alleges that ODOC is liable to Plaintiff under a municipal liability theory 

because several of its official policies caused Plaintiff to be subjected to the denial of his 

constitutional rights. ECF 94 at 32-35. Because the Court has dismissed Defendant ODOC

pursuant to Plaintiff’s voluntary dismissal (ECF 234, 236) and there are no remaining entity

defendants, the Court dismisses this claim.

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PAGE 22 – OPINION AND ORDER

CONCLUSION

Defendants’ motions for summary judgment (ECF 150, 158) are GRANTED in part, and 

Plaintiff’s cross-motions for summary judgment (ECF 267, ECF 274) are DENIED. Plaintiff’s 

Claims 1-13 (ECF 94 at 21-31) are DISMISSED without prejudice for failure to exhaust 

available administrative remedies. Claim 14 (ECF 94 at 32-35) is DISMISSED. To the extent 

that Claims 4 (ECF 94 at 23-24), 6 (ECF 94 at 25), and 12 (ECF 94 at 29-30) are not duplicative 

of Plaintiff’s unexhausted claims, the Court GRANTS judgment for Defendants against these 

claims. The Court further finds that any appeal from this Opinion and Order would not be taken 

in good faith and Plaintiff’s in forma pauperis status should be revoked pursuant to 28 U.S.C. 

§ 1915(a)(3).

IT IS SO ORDERED.

DATED this 5th day of June, 2017.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge