UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

COREY PRITCHETT, 

Plaintiff, 

v. 

OFFFICER FAIRLEY, et al., 

Defendants. 

Coffin, Magistrate Judge. 

2:15-cv-01724-TC 

FINDINGS AND 

RECOMMENDATION 

Plaintiff, an inmate in the custody of the Oregon 

Department of Corrections, filed a complaint under 42 U.S.C. 

§ 1983 alleging violations of his First and Fourteenth 

Amendment rights and a claim under the ADA. 

Specifically, plaintiff alleges in Claim One that 

defendants Fairley and Linquist violated his free speech 

rights by issuing plaintiff a a misconduct report and a 24 

hour cell-in sanction in retaliation for plaintiff complaining 

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about his "prison helper." Plaintiff alleges in Claim Two 

that defendants Grunewald and Smith violated his free speech 

rights by conspiring to retaliate against him by "refusing him 

assistance because of his grievances and complaints." 

Complaint (#2) p. 5. Plaintiff alleges in Claim Three that 

defendants' alleged conduct violated his rights under the ADA 

by "failing to make reasonable accommodations," specifically, 

by allegedly failing to provide "adequate assistance for 

plaintiff with his wheel chair." Id. Defendants Fairley, 

Grunwald, Linquist and Two Rivers Correctional Ins ti tut ion 

have moved for summary judgment (#37) and defendant Smith has 

filed notice of his joinder in that motion (#45). 

As a preliminary matter, defendants' Motion to Strike 

(#50) is allowed for the reasons set forth in defendants 

motion. The portions of Plaintiff's Declaration (#50) 

identified in defendants' motion and apd the declaration's 

Exhibits E and F, and Exhibit C to plaintiff's Response (#49), 

are not properly authenticated pursuant to FRE 901 and 

constitute impermissible hearsay pursuant to FRE 801. Those 

matters have not been considered in deciding the issues before 

the court. 

Plaintiff has not made any specific allegations regarding 

defendant "TRCI." Plaintiff names the individual defendants 

in both their indi victual and official capacities. In any 

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event, any claim against TRCI, and plaintiff's claims against 

the defendants in their official capacities, are barred by the 

Eleventh Amendment. Board of Trustees of University of Alabama 

v. Garrett, 531 U.S. 356 (2001); Seminole Tribe of Florida v. 

Florida, 

440 U.S. 

(1984); 

517 U.S. 44, 54 (1996); see also, Quern v. Jordan, 

332 (1979); Ed_leman v. Jordan, 415 U.S. 651, 673 

Pennhurst State School and Hospital v. Halderman, 

4 65 u. s. 8 9 

Dist., 861 

(1984) .Mitchell v Los Angeles Community College 

F.2d 198, 201-02 (9th Cir. 1999).((Eleventh 

Amendment bars suits against government officials in their 

official capacity); Will v. Michigan Dep't of State Police, 

419 U.S. 58, 71 (1989) (a suit against a state officer in his 

official capacity is effectively considered a suit against the 

official's office, and therefore, it "is no different than a 

suit against the State itself." Will v. Michigan Dep' t of 

State Police, 419 U.S. 58, 71 (1989). 

Claim One: 

The Prison Litigation Reform Act requires that prisoners 

exhaust available administrative remedies before bringing a 

federal action concerning prison conditions. Griffin v. 

Arpaio, 557 F.3d 1117, 1119 (9th Cir. 2009) (citing 42 U.S.C. 

§ 1997e(a)). Inmates are required to exhaust all grievance 

remedies before filing a Section 1983 action, including 

appealing the grievance decision to the highest level within 

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the grievance system. Wyatt v. Terhune, 315 F.3d 1108 (9th 

Cir. 2003); Bennett v. King, 293 F.3d 1096, 1098 (9th Cir. 

2002); McKinney v. Carey, 311 F.3d 1198 (9th Cir. 2002). 

Moreover, "the PLRA exhaustion requirement requires proper 

exhaustion." Woodford v. Ngo, 548 U.S. 81, 93 (2006) This 

means that a prisoner must "complete the administrative review 

process in accordance with the applicable procedural rules, 

including dead~ines, as a precondition to bringing suit in 

federal court." Marella v. Terhune, 568 F.3d 1024, 1027 (9th 

Cir. 2009) (quoting Woodford, 548 U.S. at 88). 

Defendants' have established that although plaintiff 

filed several grievances concerning his first claim for 

alleged retaliation by defendants Fairly and Linquist, he 

failed to properly and fully appeal the adverse responses and 

decisions regarding the grievances. Declaration of Arnell 

Eynon (#39). 

Defendants have presented evidence that plaintiff failed 

to exhaust his administrative remedies and plaintiff has 

failed to submit any admissible evidence to controvert 

defendants' proof. Therefore, defendants are entitled to 

summary judgment as to plaintiff first claim. 

Bacca, 747 F.3d 1162 (9th Cir. 2014). 

Claims Two and Three: 

Albino v. 

Under the doctrine of res judicata or claim preclusion, 

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a final judgment on the merits rendered by a court of 

competent jurisdiction is conclusive and constitutes an 

absolute bar to a subsequent action against the same defendant 

or those in privity with that defendant. Montana v. United 

States, 440 U.S. 147, 153 (1979); C.D. Anderson & Co. V. 

Lemons, 832 F.2d 1097, 1100 (9th Cir. 1987). "Claim preclusion 

... applies where: (1) the same parties, or their privies, were 

involved in the prior litigation, ( 2) the prior litigation 

involved the same claim or cause of action as the later suit, 

and (3) the prior litigation was terminated by a final 

judgment on the merits." Central Delta Water Agency v. United 

States, 306 F.3d 938, 952 (9th Cir. 2002) (citing Blonder 

Tongue Labs v. Univ. of Ill. Foundation, 402 U.S. 313, 323-24 

(1971)). "Claim preclusion bars any subsequent suit on claims 

that could have been raised in the prior action." Cumbre Inc. 

V. State Compensation Ins. Fund, Civ. No. 09-17190, 2010 WL 

4643044, at *l (9:h Cir. Nov. 17, 2009) (citing Cell 

Theraoeutics, Inc. V. Lash Group, Inc., 586 F.3d 1204, 1212 

( 9 :h Cir . 2 0 0 9) . 

The record reflects that plaintiff previously filed a 

petition for habesa corpus relief in the Umatilla County 

Circuit Court alleging that defendant Grunwald violated his 

Eighth Amendment rights by failing to provide adequate 

assistance for his disability. On March 11, 2016, Umatilla 

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County Circuit Court Judge Daniel Hill allowed Superintendent 

Myrick's motion to dismiss on the ground that there was no 

evidence to establish deliberate indifference to plaintiff's 

serious medical need. See Defendants' Motion for Summary 

Judgment (#37) Exhibits 1, 2, and 3. 

Plaintiff's Second and Third Claims allege the same 

operative facts as those alleged in his habeas proceeding, but 

claims those alleged facts constituted violations of 

different statutory and constitutional rights. 

The claims alleged in this proceeding could have been 

raised in plaintiff's habeas proceeding and the defendants in 

this case are prison personnel and thus in privity with TRCI 

Superintendent John Myrick. Therefore, plaintiff's claims in 

this case are barred by res judicata and or claim preclusion. 

Summary: Defendants' motions for .joinder (#45) and to strike 

(#51) are allowed. Plaintiff's motions for service by U.S. 

Marshals (#24), for appointment of counsel (#53), and for 

relief from stay of discovery (#55) are denied. Defendants' 

Motion for Summary Judgment (#37) as joined by defendant Smith 

should be allowed. The Clerk of the Court should be directed 

to enter a judgment dismissing this action with prejudice. 

This recommendation is not an order that is immediately 

appealable to the Ninth Circuit Court of Appeals. Any notice 

of appeal pursuant to Rule 4(a) (1), Federal Rules of Appellate 

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Procedure, should not be filed until entry of the district 

court's judgment or appealable order. The parties shall have 

fourteen (14) days from the date of service of a copy of this 

recommendation within which to file specific written 

objections with the court. Thereafter, the parties have 

fourteen ( 14) days within which to file a response to the 

objections. Failure to timely file objections to any factual 

determinations of the Magistrate Judge will be considered a 

waiver of a party's right to de novo consideration of the 

factual issues and will constitute a waiver of a party's right 

to appellate review of the findings of fact in an order or 

judgment entered pursuant to the Magistrate Judge's 

recommendation. 

Any appeal. :form an order adopting this Findings and 

Recommendation or judgment dismissing this case woul.d be 

£rivol.ous and not taken in good :faith. There::fore, pl.ainti££' s 

in form.a pauperis status shoul.d be revoked. 

DATED this ~y 

Thomas 

United 

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Judge 

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