IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

WILLIAM PATRICK FLOYD, 

Plaintiff, 

V. 

OFFICER WATKINS, in individual and official 

capacities, 

Defendant. 

BECKERMAN, Magistrate Judge. 

Case No. 2:14-cv-01775-SB 

FINDINGS AND 

RECOMMENDATION 

William Patrick Floyd, an inmate at Two Rivers Correctional Institute, filed this action pro 

se against Correctional Officer Nicholas Watkins ("Officer Watkins"), in his individual and official 

capacity, alleging claims under federal and state law arising from an ankle injury Floyd sustained 

during a basketball game. Specifically, Floyd alleges one claim against Officer Watkins pursuant to 

42 U.S. C. § 1983 for violations ofFloyd' s Eighth and Fourteenth Amendment rights by intentionally 

Page 1 -FINDINGS AND RECOMMENDATION 

Case 2:14-cv-01775-SB Document 30 Filed 07/16/15 Page 1 of 13
delaying medical treatment and refusing to provide medical care. Additionally, Floyd alleges a state 

law claim for negligence due to Officer Watkins' failure to follow a standard of care that would 

protect Floyd from unreasonable risk. Floyd seeks economic and non-economic damages, including 

an award of punitive damages, and reasonable attorney fees and costs. 

Officer Watkins filed an unopposed Motion for Summary Judgment seeking an entry of 

judgment against Floyd's § 1983 claim, on the ground Floyd failed to exhaust all of his 

administrative remedies prior to filing this action in federal court. 1 In addition, Officer Watkins asks 

this Court to decline to exercise supplemental jurisdiction over Floyd's remaining state law claim. 

For the reasons set forth below, Office Watkins' Motion for Summary Judgment should be granted 

in its entirety, and Floyd's Complaint should be dismissed. 

I. FACTS AND PROCEDURAL HISTORY 

Floyd entered the Oregon Department of Corrections' ("ODOC") custody on April14, 2009, 

and was housed at the Two Rivers Correctional Institution ("TRCI") from October 15,2013, until 

September 11 , 2014. (Arnell Eynon Decl. ~ 3, Feb. 26, 2015.) Floyd transferred to Columbia River 

Correctional Institution on September 11 , 2014. (Eynon Decl. ~ 3.) Floyd filed his Complaint in this 

case on November 7, 2014. (ECF No. 4.) 

1 Officer Watkins filed the Motion for Summary Judgment onMarch2, 2015. (ECFNo. 24.) 

On March 4, 2015, the Clerk of the Court issued a Summary Judgment Advice Notice and 

Scheduling Order directing Floyd to file his Opposition by April4, 2015. (ECF No. 26.) Floyd did 

not file a response to the pending summary judgment motion by that date. On April 16, 2015, the 

Court extended Floyd's deadline to respond to April30, 2015. (ECF No. 28.) To date, Floyd has not 

responded to Officer Watkins' motion. Therefore, the Court considers the Motion for Summary 

Judgment unopposed. 

Page 2- FINDINGS AND RECOMMENDATION 

Case 2:14-cv-01775-SB Document 30 Filed 07/16/15 Page 2 of 13
Floyd alleges that on May 25, 2014, he sustained a serious ankle injury during a basketball 

game, and requested medical assistance from Officer Watkins. (Com pl. ,-r,-r 4-5.) Floyd further alleges 

that Officer Watkins called the medical unit, and informed Floyd he could walk to the medical unit 

without assistance. (Compl. ,-r,-r 6 and 9.) Floyd contends he told Officer Watkins he was in incredible 

pain from the injury and walking unassisted would cause more damage to his ankle. (CompL·,-r,-r 7 

and 13.) Officer Watkins allegedly told Floyd he must walk to the medical unit on his own or remain 

where the injury occurred. (Compl. ,-r 20.) Floyd alleges he began walking the 250 yards to the 

medical unit, and did not receive assistance until a wheelchair arrived approximately 25 feet from 

the unit. (Compl. ,-r,-r 27-31 .) 

Floyd filed his first grievance on July 8, 2014, complaining that when another inmate twisted 

his ankle playing basketball on June 13,2014, officers borrowed Floyd's wheelchair to transport the 

inmate to the medical unit. (Eynon Decl. ,-r 12; Ex. 4 at 2.) At the time, Floyd was recovering from 

surgery on his Achilles tendon. Floyd complained he did not receive the same assistance when he 

was injured. (Eynon Decl. ,-r 12; Ex. 4 at 2.) 

On July 26, 2014, Lieutenant Albert Hazen responded to Floyd's grievance by meeting with 

Floyd. Lieutenant Hazen reported that at the end of their meeting, Floyd indicated he was satisfied 

with the outcome of the conversation, and Lieutenant Hazen considered the matter closed. (Eynon 

Decl. ,-r 13; Ex. 4 at 2.) Floyd did not appeal this grievance. (Eynon Decl. ,-r 14.) 

On August 12, 2014, Floyd filed a second grievance. He alleged he filed an initial grievance 

on July 7, 2014, addressing Officer Watkins' indifference to his medical needs on May 25,2014, but 

he never received a response. (Eynon Decl. ,-r 15; Ex. 5 at 2.) Floyd further asserted that when he 

inquired about the status of his initial grievance, he was told each time that no record of his 

Page 3 - FINDINGS AND RECOMMENDATION 

Case 2:14-cv-01775-SB Document 30 Filed 07/16/15 Page 3 of 13
grievance existed. (EynonDecl. ~ 15; Ex. 5 at2.) On August 15, 2014, ODOC denied Floyd's second 

grievance as untimely. (Eynon Decl. ~ 16; Ex. 5 at 1.) 

On September 2, 2014, Floyd filed a third grievance. Floyd complained he received a 

response to his second "kyte" (a shorthand reference for an Inmate Communication Form) on July 

14, 2014, indicating the grievance coordinator never received the previously-filed grievance 

regarding Officer Watkins' indifference to his medical needs. (Eynon Decl. ~ 18; Ex. 6 at 2.) In 

contrast with his second grievance in which Floyd stated that on July 7, 2014, he filed a grievance 

about Officer Watkins' actions, Floyd alleged in the third grievance that he filed the Officer Watkins 

grievance "shortly after [his] ruptured Achilles tendon surgery." (Eynon Decl. Ex. 6 at 2.) That 

surgery occurred on June 4, 2014. (Eynon Decl. ~ 18.) Regardless, Floyd expressly stated that his 

third grievance was a "re-submit" of his second grievance. On September 4, 2014, ODOC denied 

Fioyd's third grievance as untimely. (Eynon Decl. ~ 18; Ex. 6 at 1.) 

A thorough search of ODOC's grievance records reveals that Floyd filed three grievances 

relating to the issues raised in this action. (Eynon Decl. ~~ 12, 15, 18 and 19.) Floyd did not appeal 

the denial ofthe grievances. (Eynon Decl. ~~ 14, 17 and 18.) 

II. LEGALSTANDARD 

Summary judgment is appropriate "if the movant shows there is no genuine dispute as to any 

material fact and the movant is entitled to a judgment as a matter oflaw." FED R. CIV. P. 56( a). The 

party seeking summary judgment bears the initial burden of demonstrating no genuine dispute of 

material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). All material facts are 

resolved in a light most favorable to the nonmoving party. !d. at 331. The Court must accept all 

Page 4 -FINDINGS AND RECOMMENDATION 

Case 2:14-cv-01775-SB Document 30 Filed 07/16/15 Page 4 of 13
evidence and make all inferences in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc. , 

477 U.S. 242, 255 (1986). 

III. DISCUSSION 

A. Federal Claim - Section 1983 

Officer Watkins argues Floyd's § .1983 claim should be dismissed for failure to exhaust his 

available administrative remedies prior to filing his civil rights complaint in federal court. This Court 

agrees. 

(1) The PLRA's Exhaustion Requirements 

The Prison Litigation Reform Act ("PLRA"), amended 42 U.S.C. § 1997e to provide: "[n]o 

action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], 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). Under the PLRA, 

incarcerated plaintiffs are required to exhaust all available administrative remedies within the 

institutions in which they are housed before bringing any federal action in connection with prison 

conditions, including actions brought under 42 U.S.C. § 1983. Goninan v. C/0 Smith, Corp., No. 

6:12-cv-02310-PK, 2015 WL 853044, at *5 (D. Or. Feb. 25, 2015). For purposes of the PLRA, 

actions brought with respect to "prison conditions" include all actions brought to challenge isolated 

episodes of unconstitutional or otherwise unlawful misconduct of any kind, as well as prisoner 

petitions challenging conditions of confinement. Porter v. Nussle, 534 U.S. 516, 532 (2002). 

Exhaustion of all "available" remedies is mandatory; those remedies need not meet federal 

standards, nor must they be "plain, speedy, and effective." Id. at 524; Booth v. Churner, 532 U.S. 

731 , 739-40 (2001). Even when the prisoner seeks reliefnot available in grievance proceedings, 

Page 5 - FINDINGS AND RECOMMENDATION 

Case 2:14-cv-01775-SB Document 30 Filed 07/16/15 Page 5 of 13
notably money damages, exhaustion is a prerequisite to suit. Porter, 534 U.S. at 524; see also Booth, 

532 U.S. at 739 (holding that a prisoner "seeking only money damages must complete a prison 

administrative process that could provide some sort of relief on the complaint stated, but no 

money"). "Proper exhaustion demands compliance with an agency's deadlines and other critical 

procedural rules because no adjudicative system can function effectively without imposing some 

orderly structure on the course of its proceedings." Woodfordv. Ngo, 548 U.S. 81 , 90-91 (2006). The 

PLRA' s exhaustion requirement cannot be satisfied "by filing an untimely or otherwise procedurally 

defective administrative grievance or appeal." !d. at 84. 

Once a defendant shows there was an available administrative remedy and the prisoner did 

not exhaust that available remedy, the prisoner has the burden of production to come forward with 

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

administrative remedies effectively unavailable to him. Albino v. Lee BACA, Los Angeles County 

Sheriff, 747 F.3d 1162, 1172 (9th Cir. 2013) (en bane). 

For inmates such as Floyd who are housed at TRCI, grievances are processed in accordance 

with the ODOC Administrative Rules governing Grievance Review System (Inmate), set forth in 

Chapter 291 , Division 109 of the Oregon Administrative Rules. (EynonDecl. ~ 6, Ex. 2.) ODOC has 

a three-level grievance and appeal remedy process in place to address inmate complaints. (Eynon 

Decl. ~~ 6-10.) Inmates are informed of the processes for filing a grievance during admission and 

orientation to the facility where they are housed. (Eynon Decl. ~ 7.) The grievance process is also 

explained in the inmate handbook, which is provided to each inmate. (Eynon Decl. ~ 7.) 

Additionally, inmates may ask any housing unit officer for a grievance form, which is accompanied 

by an instruction sheet. (Eynon Decl. ~ 7.) 

Page 6- FINDINGS AND RECOMMENDATION 

Case 2:14-cv-01775-SB Document 30 Filed 07/16/15 Page 6 of 13
Inmates can file grievances regarding several issues, including "unprofessional behavior or 

action which maybe directed toward an inmate by an employee or volunteer." OR. ADMIN. R. § 291-

1 09-0140. Inmates are encouraged to communicate grievances informally with first -line staff as their 

primary means of resolving disputes, prior to filing a formal grievance. OR. ADMIN. R. 291-109-

0140(1)(a). Ifthe initial communication does not resolve the grievance, the inmate may proceed to 

level one by completing a grievance form. !d. If the matter is not an emergency, grievance forms 

must be filed with the grievance coordinator within thirty days of the aggrieving incident, and 

contain "a complete description of the incident, action, or application of the rule being grieved, 

including date and approximate time." Jd. at 291 -109-0140(l)(b) and 291-109-0150(2). An inmate 

cannot grieve misconduct reports or issues for which the inmate has filed suit in state or federal 

court. !d. at 291-109-0140(3)(e), (i). 

At level two, an inmate may appeal the grievance coordinator's decision regarding the 

inmate's level-one grievance form, to the functional unit manager. Id. at 291- 109-0170(1). The 

inmate must file a grievance appeal form with the grievance coordinator within fourteen days of the 

date ODOC sent the level-one grievance response to the inmate. Id. at 291-109- 0170(1)(b). At level 

three, the inmate may appeal the decision made by the functional unit manager by filing an additional 

grievance appeal form with the grievance coordinator within fourteen days of the date ODOC sent 

the level-two grievance response to the inmate. !d. at 291-1 09-0170(2). This satisfies the 

administrative remedies exhaustion requirement under§ 1997e(a). 

Inmates are ·required to exhaust all available grievance remedies before filing a§ 1983 action, 

including appealing the grievance decision to the highest level within the grievance system, or suffer 

Page 7 - FINDINGS AND RECOMMENDATION 

Case 2:14-cv-01775-SB Document 30 Filed 07/16/15 Page 7 of 13
dismissal of their complaint. Bennett v. King, 293 F .3d 1096, 1098 (9th Cir. 2002); McKinney v. 

Carey, 311 F.3d 1198, 1199 (9th Cir. 2002). 

(2) Floyd Failed to Exhaust the Administrative Remedies 

a. Floyd's First Grievance 

On July 8, 2014, Floyd filed his first grievance, stating that on or around June 13, 2014, 

ODOC authorized medical staff, extra officers, and a stretcher to help an inmate who twisted his 

ankle while playing basketball. (Eynon Decl. Ex. 4 at 2.) Floyd complained prison staff used his 

wheelchair to assist the injured inmate, which prevented Floyd from going to the day room for over 

two hours. (Eynon Decl. Ex. 4.) Floyd also stated that he did not receive the same attention and 

assistance when he twisted his ankle. (Eynon Decl. Ex. 4 at 2.) 

Lieutenant Hazen responded to Floyd's grievance by conducting an interview with Floyd on 

July 26, 2014. (Eynon Decl. Ex. 4.) Floyd told Lieutenant Hazen he felt humiliated and singled out 

because staff members used his wheelchair to transport an injured inmate, and he did not receive the 

same type of medical treatment when he was hurt. Lieutenant Hazen explained to Floyd that it was 

Health Services (i.e., not a correctional officer) that determined the amount and method of treatment 

he received. Lieutenant Hazen also explained that if staff members were ordered to obtain a 

wheelchair to move an injured inmate, they would select the one nearest to the incident, which in this 

instance was Floyd's wheelchair. If time and circumstances permitted, staff would have explained 

why they chose his wheelchair over another. In response to Lieutenant Hazen's question about 

whether he was satisfied with the outcome of the conversation, Floyd stated he was. Lieutenant 

Hazen considered the matter closed, and Floyd did not file any appeals regarding his grievance. 

Page 8- FINDINGS AND RECOMMENDATION 

Case 2:14-cv-01775-SB Document 30 Filed 07/16/15 Page 8 of 13
Floyd now alleges that Officer Watkins violated his Eighth and Fourteenth Amendment rights 

to prompt and adequate medical care on May 25, 2014. A careful reading ofFloyd's first grievance 

reveals he primarily challenged the use of his wheelchair to assist another inmate, on June 13, 2014. 

Although Floyd in his first grievance noted that he did not receive the same treatment when he was 

injured, his grievance does not specifically mention Officer Watkins' failure to provide prompt and 

adequate medical care on May 25, 2014. Nevertheless, when Lieutenant Hazen processed Floyd's 

first grievance he addressed the medical care Floyd received. (Eynon Decl. Ex. 4 at 1 ("As I 

explained to you during our conversation that medical will determine the amount and method of 

treatment that [y]ou will receive. ").) Because this Court must construe Floyd's first grievance 

liberally, it assumes Floyd's allegation that "I didn't get the same assistance" was a challenge to the 

adequacy of Officer Watkins' May 25, 2014 response. See Bretz v. Kelman, 773 F.2d 1026, 1027 

n. 1 (9th Cir. 1985) (en bane) (" [W]e have an obligation where the petitioner is pro se, particularly 

in civil rights cases, to construe the pleadings liberally and to afford the petitioner the benefit of any 

doubt."). 

Although Lieutenant Hazen explained the protocol for using Floyd's wheelchair, Floyd did 

not receive any relieffor his claim (as construed) that Officer Watkins was indifferent to his medical 

needs. See, e.g., Green v. Cahal, No. 3:03-cv-805-MO, 2004 WL 1078988 at *2-3 (D. Or. May 11 , 

2004) (prisoner's complaint of medical care delay that resulted in a decision that treatment was 

forthcoming should nonetheless have been appealed). Prior to filing his claim for medical 

indifference in this Court, Floyd was required to exhaust his administrative remedies with ODOC 

by appealing Lieutenant Hazen's response. See OR. ADMIN. R. 291 -109-0170(1) ("The grievance 

coordinator must receive an appeal within 14 calendar days from the date that the grievance response 

Page 9 - FINDINGS AND RECOMMENDATION 

Case 2:14-cv-01775-SB Document 30 Filed 07/16/15 Page 9 of 13
was sent to the inmate from the grievance coordinator."). Floyd did not appeal the grievance 

response and, therefore, he failed to exhaust his administrative remedies. See Marella v. Terhune , 

568 F.3d 1024, 1028 (9th Cir. 2009) ("If a prisoner had full opportunity and ability to file a grievance 

timely, but failed to do so, he has not properly exhausted his administrative remedies." (citing 

Woodford, 548 U.S. at 88.)). 

b. The Alleged Missing Grievances 

In his second and third grievances, Floyd alleged that he filed an earlier grievance, 

challenging Officer Watkins' indifference to his medical needs on May 25,2014. In the second and 

third grievances, Floyd argued the ODOC's failure to process that "missing" grievance hindered his 

opportunity to seek a remedy for the May 25 incident. (Eynon Decl. Ex. 5 at 2; Ex. 6 at 2.) 

Floyd's allegations of a missing grievance are unsupported by any evidence in the record at 

summary judgment. Rather, Officer Watkins submitted evidence that there is no record of an earlier 

grievance challenging Officer Watkins' purported misconduct. (Eynon Decl. ~ 19 ("I have made a 

thorough search of my records and did not find any grievances which Inmate Floyd specifically 

directed to Defendant Watkins that had to do with the claims in his complaint.").) While Floyd's 

third grievance omitted a specific date for the missing grievance, he expressly stated it was a "resubmit" ofhis second grievance. In any event, even ifFloyd did file a grievance on July 7, and there 

is nothing in the record to support that he did, it would have been untimely because July 7, 2014, is 

more than 30 days after May 25, 2014, the date of the incident giving rise to the grievance. (Eynon 

Decl. ~ 16.) 

In sum, Floyd failed to exhaust his grievance relating to the May 25, 2014, incident. Floyd 

does hot offer any evidence to explain his failure to exhaust his claims, or that his attempts to do so 

Page 10 - FINDINGS AND RECOMMENDATION 

Case 2:14-cv-01775-SB Document 30 Filed 07/16/15 Page 10 of 13
were impeded. See Nunez v_. Duncan, 591 F.3d 1217, 1224 (9th Cir. 2010) (failure to exhaust was 

excused when prisoner took reasonable and appropriate steps to exhaust his claim and was precluded 

from exhausting by the warden's mistake). The uncontroverted evidence before the Court is that 

Floyd failed to exhaust his claim for indifference to his medical needs. Accordingly, the district 

judge should grant summary judgment, with prejudice, on Floyd's Eight and Fourteenth Amendment 

claims for delaying and refusing medical treatment. 2 

B. State Law Claim- Negligence 

The PLRA's exhaustion requirement applies only to claims filed by prisoners "with respect 

to prison conditions under section 1983 ofthis title, or any other Federal law." 42 U.S.C.§ 1997e(a). 

While Floyd's §1983 claim clearly falls within the ambit of§ 1997e(a), and is subject to the 

exhaustion pleading requirements, his state law claim of negligence is not subject to the exhaustion 

requirement. Office Watkins acknowledges that dismissing Floyd's negligence claim for failure to 

exhaust "would be improper." (Def.'s Mem. Summ. J. 11.) Instead, Officer Watkins requests that 

pursuant to 28 U.S.C.A. § 1367(c)(3), this Court decline to exercise supplemental jurisdiction over 

Floyd's negligence claim and dismiss the claim without prejudice, and with leave to file a complaint 

in state court. 

A district court may decline to exercise supplemental jurisdiction over state-law claims if it 

"has dismissed all claims over which it has original jurisdiction." 28 U.S.C. § 1367(c)(3). In 

addition, when a district court dismisses all federal-law claims before trial, "the balance of the 

2 The time to exhaust Floyd's administrative remedies has long passed and, accordingly, his 

federal claim should be dismissed with prejudice. Mitchell v. Diazon, No. C10-2075-RAJ-BAT, 

2011 WL 6370160, at *6 (W.D. Wash. Oct. 31 , 2011), report and recommendation adopted by, 2011 

WL 6370080.(W.D. Wash. Dec. 20, 2011); accord Laos v. ODOC, No. 3:11-cv-00208-BR, 2012 

WL 383385, at *4-5 (D. Or. Feb. 6, 2012). 

Page 11 -FINDINGS AND RECOMMENDATION 

Case 2:14-cv-01775-SB Document 30 Filed 07/16/15 Page 11 of 13
factors to be considered under the pendent jurisdiction doctrine- judicial economy, convenience, 

fairness, and comity - will point toward declining to exercise jurisdiction over the remaining 

state-law claims." Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988); accord Acri v. 

Varian Assocs., Inc., 114 F.3d 999, 1001 (9th Cir. 1997) (en bane); see also Crane v. Allen, No. 

3:09-cv-1303-HZ, 2012 WL 602432, at* 10 (D. Or. Feb. 22, 2012) ("Having resolved all claims over 

which it had original jurisdiction, this court declines to exercise supplemental jurisdiction over 

Plaintiffs' remaining state law claims."). 

The Court finds that the factors ofjudicial economy, convenience, fairness, and comity weigh 

in favor of this Court declining to exercise supplemental jurisdiction. Neither the Court nor the 

parties have invested significant time and resources in federal court sufficient to justify retaining 

jurisdiction. The Court closely examined the sole federal law claim and resolved it in favor of 

Officer Watkins. State court is a convenient forum for the parties, and declining to exercise 

supplemental jurisdiction respects the values of federalism and comity. For all of these reasons, the 

Court declines to exercise supplemental jurisdiction over Floyd's remaining state law claim and, 

accordingly, the district judge should dismiss Floyd's state law claim, without prejudice, and with 

leave to refile that claim in state court. 

IV. CONCLUSION 

For the reasons set forth above, the district judge should GRANT Officer Watkins' Motion 

for Summary Judgment (ECF No. 24), and DISMISS Floyd's Complaint (ECF No. 4). 

V. SCHEDULING ORDER 

The Findings and Recommendation will be referred to a district judge. Objections, if any, 

are due fourteen (14) days from service of the Findings and Recommendation. If no objections are 

Page 12 -FINDINGS AND RECOMMENDATION 

Case 2:14-cv-01775-SB Document 30 Filed 07/16/15 Page 12 of 13
filed, the Findings and Recommendation will go under advisement on that date. If objections are 

filed, a response is due fourteen (14) days after being served with a copy of the objections. When the 

response is due or filed, whichever date is earlier, the Findings and Recommendation will go under 

advisement. .;/, 

Dated this/b day of July 2015. 

United States Magistrate Judge 

Page 13- FINDINGS AND RECOMMENDATION 

Case 2:14-cv-01775-SB Document 30 Filed 07/16/15 Page 13 of 13