UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

PORTLAND DIVISION 

FRANKE. VOTH 

Plaintiff, 

v. 

MARK NOOTH; WILLIAM KlNG; 

DANIEL BANNER; COLETTE PETERS; 

GREGORY JONES; and MARICELA 

ROJAS, 

Defendants. 

ACOSTA, Magistrate Judge: 

Introduction 

Civ. No. 2:14-CV-01855-AC 

FlNDlNGS AND 

RECOMMENDATION 

Plaintiff Frank E. Voth ("Voth") brings this action pursuant to 42 U.S.C. § 1983 and OR. 

REV. STAT. §§ 421.105 and 137.275 against various Oregon Department of Corrections ("DOC") 

employees (collectively "Defendants") alleging violations of his constitutional and civil rights 

while incarcerated in the Oregon state prison. system. Specifically, in his first claim for relief, 

Voth alleges Defendants William King ("King"), Daniel Banner ("Banner"), Colette Peters 

FlNDlNGS AND RECOMMENDATION 1 {TJK} 

Case 2:14-cv-01855-AC Document 79 Filed 04/27/16 Page 1 of 17
("Peters"), and Gregory Jones ("Jones") violated his Eighth and Fourteenth Amendment rights, 

as well as OR. REV. STAT. 421.105(2), by aiding and allowing Banner to physically injure Voth 

while performing pat-down searches, including allegations by Voth that Banner actively 

slammed his hands into Voth's groin area and excessively tightened Voth's wrist restraints in an 

effort to restrict blood flow to his hands and fingers. Voth also asserts that Mark Nooth 

("Nooth"), Superintendent of Snake River Correctional Institution ("SRCI"), permitted King to 

unjustifiably file a misconduct report against Voth in retaliation for Voth's decision to file an 

inmate discrimination complaint pertaining to Banner's alleged physical violence. 

Voth's second claim alleges that Defendants King, Banner, Peters, and Jones conspired 

with known and unknown prison officials to physically injure Voth while housed in the 

Administrative Segregation Unit ("ASU"). Voth further asserts that he has written inmate 

communications and filed grievances in an effort to notify prison officials of the physical injuries 

being inflicted upon him. Additionally, Voth argues that he has repeatedly requested to be 

released from the ASU and transferred to Oregon State Correctional Institution ("OSCI") 

pursuant to an alleged consent decree that the Oregon Department of Justice filed in state court. 

Voth brings his second claim pursuant to the Eighth and Fourteenth Amendment, OR. REv. STAT. 

421.105(1) and (2), and various provisions of the Oregon Constitution. 

Finally, in his third claim, Voth alleges Maricela Rojas ("Rojas"), SRCI's law librarian, 

improperly viewed and erased all of Voth's legal pleadings contained on his personal thumb 

drive in contravention of his First and Fourteenth Amendment rights, as well as OR. REV. STAT. 

137.275. 

FINDINGS AND RECOMMENDATION 2 {TJK} 

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Defendants now move for summary judgment on all ofVoth's claims, arguing he failed 

to properly exhaust available administrative remedies, as required by the Prison Litigation 

Reform Act ("PLRA"). For the reasons stated below, Defendants' motion should be granted. 

Background 

On April 4, 2014, Voth, a DOC inmate who at the time was housed at Oregon State 

Penitentiary ("OSP"), submitted an inmate grievance form, Grievance No. OSP-2014-05-026, 

requesting he be transferred to OSCI pursuant to a state court order. (First Am. Comp!. Ex. 2.) 

In the same grievance, Voth also claimed that the Oregon Department of Justice had, based on an 

apparent consent decree, 1 agreed not to transfer Voth back to Eastern Oregon Correction 

Institution, Two Rivers Correctional Institution, or SRCI. (First Am. Comp!. Ex. 2.) Voth's 

grievance was returned to him because he failed to show "how there ha[ d] been a misapplication 

of a directive/procedure." (First Am. Comp!. Ex. 1.) Based on the record, it appears Voth took 

no further action with respect to this grievance and at some point shortly thereafter, was 

transferred from OSP to SRCI and assigned to the ASU. (First Am. Comp!. Ex. 7, at 1.) 

In late 2014, following Voth's transfer to SRCI, he submitted at least five inmate 

communication forms requesting transfer to OSCI. (First Am. Comp!. Exs. 3, 7, 15 & 17; Voth's 

Mot. for Surnm. J. Ex. l 2A.) Voth argued, apparently based on the same alleged consent decree, 

that the Oregon Department of Justice had assured him that he would be transferred to OSCI, not 

SRCI, in an effort to redress the actions of two SRCI prison officials who had allegedly 

1 Voth has not provided the court with a consent decree from the Oregon Department of 

Justice. Voth has attached an exhibit from Robert E. Sullivan ("Sullivan"), Oregon's Senior 

Assistant Attorney General, in which Sullivan aclmowledges Voth has requested transfer to 

OSCI. (Voth's Mot. for Surnm. J. Ex. 9A-B.) While Sullivan notes Voth's request to transfer, 

Sullivan points out that there is no guarantee Voth will be transferred. (Voth's Mot. for Summ. 

J. Ex. 9A-B.) 

FINDINGS AND RECOMMENDATION 3 {TJK} 

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handcuffed Voth and repeatedly slammed his head into the prison-cell wall a number of years 

earlier. (First. Am. Comp!. Ex. 7, at 1.) 

During this same time - late 2014 - Voth also submitted a number of inmate 

communication forms notifying prison officials that employees at SRCI were sexually, 

physically, and verbally abusing him; were failing to wear hair nets when serving food, leading 

to hair in Voth's food; and were apparently locking Voth in the shower and leaving him to stand 

in dirty water for over an hour each time he showered. (First. Am. Comp!. Exs. 7, 19 & 20; 

Voth's Mot. for Surnm. J. Ex. 55A-B, 57A-B.) In the inmate communication forms, Voth 

claimed that these actions violated DOC rules, various Oregon statutes, Oregon case law, and his 

Eighth and Fourteenth Amendment rights. (First Am. Comp. Exs. 7, 19 & 20.) 

Aside from Grievance No. OSP-2014-05-026, which was returned to him for failure to 

adhere to procedural rules, it appears from the record that Voth did not formally grieve these 

issues, a right provided to him under DOC's grievance review system. (See First Am. Comp!. 

Exs. 1-20; Taylor Deel. ii 6.) Rather, the record shows that Voth's only attempt at administrative 

review was through submission of the aforementioned inmate communication forms, a process 

entirely separate from a formal grievance and "designed for inmate use in communicating with 

employees, volunteers, or contractors," and, where appropriate, receiving responses from the 

same. (See First Am. Comp!. Exs. 1-20; Taylor Deel. Attach. 2, at 2.) 

Separate from the above complaints, in late October 2014, Voth filed an inmate 

communication form and an inmate discrimination complaint, Discrimination Complaint No. 

SRCI-2014-10-185, alleging Banner was physically abusing and assaulting him. (Taylor Deel. ii 

3; Attach. 10, at 1, 2.) Voth alleged Banner slammed his hands into Voth's groin area "to 

intentionally cause [] pain." (Taylor Deel. Attach. 10, at 1.) Moreover, Voth charged that 

FINDINGS AND RECOMMENDATION 4 {TJK} 

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Banner placed wrist restraints so tight that Voth' s fingers and hands became numb, ended Voth' s 

recreation time fifteen minutes early, and intentionally stepped on Voth's heels as he escorted 

Voth up the stairs to his cell. (Taylor Deel. Attach. 10, at 1.) Voth, an African-American, 

argued that he received this treatment because of his race. (Taylor Deel. Attach. 10, at 1.) 

On November 4, 2014, King received Voth's inmate communication form addressing 

Banner's alleged abuses and attempted to discuss the incident with Voth. (Taylor Deel. Attach. 

7, at 4.) Voth, however, refused to discuss the matter, telling King he had nothing to say. 

(Taylor Deel. Attach. 7, at 4.) Consequently, King proceeded to discuss the incident with 

Banner, who told King that Voth was given his full recreation time and, upon securing Voth in 

wrist restraints, Voth became aggressive, "demanding to know why he had been brought in so 

early." (Taylor Deel. Attach. 7, at 4.) Banner stated that he told Voth he had been provided his 

allotted time and thereafter began to escort him back to his cell. (Taylor Deel. Attach. 7, at 4.) 

Banner acknowledged that, as he was escorting Voth up the stairs, he "accidentally stepped on 

his shoe." (Taylor Deel. Attach. 7, at 4-5.) Banner stated that he immediately apologized and 

"continued with the escort." (Taylor Deel. Attach. 7, at 5.) According to Banner, Voth was then 

secured in his cell and no further communication took place. (Taylor Deel. Attach. 7, at 5.) 

In King's misconduct report, he states that after inquiring about the incident with Banner, 

he intended to document the allegation as unfounded but, the following day, was informed by the 

grievance coordinator that Voth had filed the aforementioned inmate discrimination complaint, 

which was also directed at Banner. (Taylor Deel. Attach. 7, at 5.) As a result, King asked prison 

staff to escort Voth to his office in an attempt to discuss the matter once more. (Taylor Deel. 

Attach. 7, at 5.) Voth agreed, and King maintains that Voth "was immediately on the defensive 

and appeared upset" as the two attempted to discuss the matter. (Taylor Deel. Attach 7, at 5.) 

FINDINGS AND RECOMMENDATION 5 {TJK} 

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Voth told King that he did not know why he was being punished for the incident. (Taylor Deel. 

Attach. 7, at 5.) King explained to Voth that he was not punishing Voth for lodging the 

complaint but that Voth would be held accountable should the complaint be deemed false. 

(Taylor Deel. Attach. 7, at 5.) According to King's misconduct report, Voth then ended the 

conversation by telling King he intended to pursue the matter in court. (Taylor Deel. Attach. 7, 

at 5.) 

Apparently due to a lack of information provided by Voth, as well as the testimony from 

Banner, and the fact that Voth did not seek medical treatment for the alleged injuries he suffered 

on Banner's behalf, King concluded that Voth was "attempting to provide false information 

towards [] Banner" in an effort to litigate against the state. (Taylor Deel. Attach 7, at 5.) King 

therefore informed Voth he would be disciplined for providing false or misleading information. 

(Taylor Deel. Attach. 7, at 7.) 

After being disciplined, Voth filed Inmate Grievance Form No. SRCI-2014-11-048, 

stating King had disciplined him for filing the previously mentioned inmate discrimination 

complaint. (Taylor Deel. Attach. 7, at !.) The inmate grievance form requested that King's 

superiors inform King that he cannot punish Voth "for using established grievance procedures." 

(Taylor Deel. Attach. 7, at !.) As required by DOC's grievance review system, King responded 

to Voth's grievance, explaining that he had received Voth's inmate communication fmm, been 

notified of his discrimination complaint, and attempted to discuss the incident with Voth, who 

initially refused to speak to him but did so after being escorted to King's office. (Taylor Deel. 

Attach. 2, at 7; Attach. 7, at 7.) King went on to explain that he disciplined Voth because it was 

apparent to him "that the events had occurred as the staff involved had described" and that Voth 

FINDINGS AND RECOMMENDATION 6 {TJK} 

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had therefore provided false or misleading information. (Taylor Deel. Attach. 7, at 7.) Voth 

elected not to appeal King's initial grievance response. (Taylor Deel. if 15.) 

Meanwhile, on December 8, 2014, Nooth, the individual tasked with officially 

responding to Voth' s inmate discrimination complaint, provided Voth with his findings, 

concluding, based on interviews with King, Banner, and a prison employee working alongside 

Banner, that there was insufficient evidence to support Voth's allegations of discrimination. 

(Taylor Deel. Attach. 10, at 4-5.) Voth was notified of his right to appeal the finding, and he did 

so; however, Voth's appeal was returned to him because he failed to attach Nooth's response.2 

(Taylor Deel. Attach. 10, at 5-8.) Voth did not resubmit his appeal. (Taylor Deel. if 25.) 

At around the same time, Voth also filed grievances pertaining to Rojas's handling of 

Voth's personal thumb drive, which purportedly contained his private legal documents. (Taylor 

Deel. Attach. 6, at 1.) Voth's first grievance, Grievance No. SRCI-2014-06-076, filed on June 

10, 2014, stated that Rojas told Voth she had deleted all of his pleadings contained on the 

personal thumb drive. (Taylor Deel. Attach. 6, at 1.) Voth's pleadings apparently pertained to 

several cases pending at the time. (Taylor Deel. Attach. 6, at 1.) In the grievance, Voth stated 

that when he inquired as to who authorized Rojas to read and delete his confidential legal 

information, Rojas told him inmates like Voth, who are housed in the ASU, are not afforded the 

same rights to confidentiality in legal material as general-population inmates. (Taylor Deel. 

Attach. 6, at 1.) 

2

Voth acknowledges his appeal pertaining to the discrimination complaint has not been 

processed; however, he argues it has not been processed because he has filed this action. (Voth's 

Resp. to Def.'s Mot. for Summ. J., at 3-4.) The record, however, clearly indicates Voth's appeal 

was returned to him because of his failure to attach the necessary documents. (See Taylor Deel. 

Attach. 10, at 6.) 

FINDINGS AND RECOMMENDATION 7 {TJK} 

Case 2:14-cv-01855-AC Document 79 Filed 04/27/16 Page 7 of 17
Four months later, Voth had yet to receive a response regarding his June 10 grievance 

against Rojas. Consequently, he submitted a second grievance form, again given the grievance 

number SRCI-2014-06-076, seeking an answer as to why he had not received a response within 

the forty-five-day timefrarne required under DOC's grievance review system. (Taylor Deel. 

Attach. 6, at 3; Attach. 2, at 7.) On October 28, 2014, Voth received a response from the 

grievance coordinator, who informed Voth that his grievance had been returned without response 

because Voth filed a lawsuit pertaining to the issue and DOC does not allow inmates to grieve an 

issue that the inmate is pursuing in federal or state court. (Taylor Deel. Attach. 6, at 4.) 

Later, in December 2014, Voth sent a third grievance form, Grievance No. SRCI-2014-

12-066, stating he sent Rojas a special law library request form asking that she provide him with 

the legal material she copied from his thumb drive prior to erasure, but Rojas refused to do so.

3 

(Taylor Deel. Attach. 8, at 2.) Once again, Voth's grievance was returned to him because Voth 

did not provide sufficient information to process the grievance, namely, forgetting to provide the 

date and to attach the special law library request form. (Taylor Deel. Attach. 8, at 1.) Voth 

failed to resubmit his grievance. (Taylor Deel. if 16.) 

Standards 

Courts in the Ninth Circuit "treat an exhaustion defense under the PLRA within the 

framework of the Federal Rules of Civil Procedure." Albino v. Baca, 747 F.3d 1162, 1169 (9th 

Cir. 2014) (overruling Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003)). This means that a court 

should grant a motion for summary judgment premised on the prisoner's failure to exhaust 

administrative remedies "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. C1v. P. 56(a). 

3

It is unclear from the record whether Rojas did indeed copy the material on Voth's 

thumb drive prior to expunction. 

FINDINGS AND RECOMMENDATION 8 {TJK} 

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Specifically, in a case when the movant argues the prisoner failed to exhaust nonjudicial 

remedies, the movant must produce evidence, which, viewed in the light most favorable to the 

prisoner, shows a failure to exhaust. Albino, 747, F.3d at 1169. If the movant meets his burden, 

the prisoner must "go beyond the pleadings [ ] by her own affidavits ... [to] designate specific 

facts showing that there is a genuine issue for trial." Celotex Corp. v. Catrett, 4 77 U.S. 317, 324 

(1986) (internal quotation marks omitted). In a failure-to-exhaust case that means the prisoner 

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. On summary judgment, the court is bound to view all facts in 

a light most favorable to the prisoner and must draw all justifiable inferences in the prisoner's 

favor. Narayan v. EGI, Inc., 616 F.3d 895, 899 (9th Cir. 2010). 

I. Exhaustion 

The PLRA requires that a prisoner exhaust available administrative remedies before 

filing suit in federal court regarding prison conditions. Griffin v. Arpaio, 557 F.3d 1117, 1119 

(9th Cir. 2009) (citing 42 U.S.C. § 1997e(a) (2008)). Failure to exhaust under the PLRA is an 

affirmative defense that must be raised by the defendants, who bear the burden of proving the 

absence of exhaustion. Jones v. Bock, 549 U.S. 199, 211-12 (2007); Wyatt v. Terhune, 315 F.3d 

1108, 1119 (9th Cir. 2003). 

Exhaustion must be proper, meaning the "grievant must use all steps the prison holds out, 

enabling the prison to reach the merits of the issue." Griffin v. Arpaio, 557 F.3d 1117, 1119 

(2009). Moreover, to properly exhaust, the grievant must complete the administrative process in 

accordance with the prison's own grievance procedures. Woodford v. Ngo, 548 U.S. 81, 88 

(2006). This means the grievant must comply with the prison grievance system's "critical 

FINDINGS AND RECOMMENDATION 9 {TJK} 

Case 2:14-cv-01855-AC Document 79 Filed 04/27/16 Page 9 of 17
procedural rules" and appeal the grievance decision to its highest level within the grievance 

system prior to filing an action in court. Id. at 95; see also Jones, 549 U.S. at 218 (stating a 

prisoner must complete the administrative process in accordance with the prison's procedural 

rules). Simply put, the grievant must use all steps the prison administration holds out, and do so 

properly. Woodford, 548 U.S. at 90. 

However, while the inmate must comply with the exhaustion requirement, the defendant 

has the burden of raising nonexhaustion as an affirmative defense and to "prove that there was an 

available administrative remedy, and that the prisoner did not exhaust that available remedy." 

Albino, 747 F.3d at 1172. Once the defendant has carried that burden, the prisoner must provide 

evidence showing that the existing and generally available administrative remedies were 

effectively unavailable to him, for instance, by showing that prison officials declined to hear the 

merits of a grievance, or obstructed attempts to exhaust, or prevented inmates from exhausting 

because procedures for processing grievances were not followed. Id. at 1172-73; see also Ngo v. 

Woodford, 539 F.3d 1108, 1110 (9th Cir. 2008) (standing for the proposition that the prisoner 

must show that administrative procedures were unavailable to him by showing, for instance, that 

prison officials obstructed the prisoner's attempt to exhaust or that the prisoner was prevented 

from exhausting because prison officials did not follow internal procedurals). 

Oregon Administrative Rules 291-109-0100 through 291-109-0190 describe the threelevel internal grievance and appeal procedure for inmates confined in DOC facilities. OR. 

ADMIN. R. 291-109-0100 et seq. (2016). Inmates are informed of the grievance process during 

admission and orientation, and the procedures are also explained in the inmate handbook given 

to each inmate. (Taylor Deel. 'if 6.) Inmates are encouraged to first address their concerns with 

DOC staff through informal written or verbal communication. OR. ADMIN. R. 291-109-020 

FINDINGS AND RECOMMENDATION 10 {TJK} 

Case 2:14-cv-01855-AC Document 79 Filed 04/27/16 Page 10 of 17
(2016). If informal resolution is unsuccessful, an inmate may initiate a grievance by filing a 

DOC-provided form within thirty days of the incident giving rise to the complaint. OR. ADMIN. 

R. 291-109-0150 (2016). An inmate may not grieve, among other things, "[c]laims or issues the 

inmate has pursued or is pursuing in pending litigation in state or federal court." OR. ADMIN. R. 

291-109-0140(3)(h) (2016). If the inmate properly grieved and is not satisfied with the initial 

grievance response, he or she may appeal to the functional unit manager within fourteen days of 

receiving the grievance response. OR. ADMIN. R. 291-109-0170(1) (2016). If the first appeal is 

denied, the inmate can appeal the functional unit manager's decision to the Assistant Director or 

designee, whose decision is final and not subject to further administrative review. OR. ADMIN. 

R. 291-109-0170(2) (2016). 

When pertinent, an inmate may pursue administrative remedies through a separate 

process specifically reserved for discrimination issues. Oregon Administrative Rules 291-006-

0005 through 291-006-0045 describe the discrimination complaint process, which is similar to 

the grievance process. If an inmate believes he has been subjected to discrimination on the basis 

of race, color, national origin, sex, religion, age, marital status, or handicap, the inmate, or a 

representative, may file a written complaint through the prison department's discrimination 

complaint process. OR. ADMIN. R. 291-006-0015 (2016). The complaint must be submitted to 

the functional unit manager of the unit in which the inmate is assigned, and must be filed within 

thirty days of the alleged act of discrimination. OR. ADMIN. R. 291-006-0031 (2016). If, after 

receiving a response from the functional unit manager, the inmate is dissatisfied, the inmate may 

appeal the response to the Inspector General or designee within fourteen days from the date the 

response was sent to the inmate by submitting an inmate communication form to the 

discrimination complaint coordinator specifically requesting review. OR. ADMIN. R. 291-006-

FINDINGS AND RECOMMENDATION 11 {TJK} 

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0040 (2016). "The inmate must attach the original discrimination complaint, original 

attachments and the department's response" to the inmate communication form; the fmms will 

then be forwarded to the Inspector General or designee. OR. ADMIN. R. 291-006-0040(1) (2016). 

The decision by the Inspector General or designee is final. OR. AD MIN. R. 291-006-0040(3) 

(2016). As with the general grievance process, the prisoner is required to exhaust all 

administrative remedies prior to bringing suit in federal court. See Fabela v. Andrews, No. 05-

228-ST, 2006 WL 2487320 (D. Or. Aug. 28, 2006) (standing for the proposition that a prisoner 

who lodges a discrimination complaint must exhaust all available administrative remedies prior 

to filing suit in federal court). 

A. Voth 's First Claim for Relief 

In Voth' s first claim, he argues Defendants King, Banner, Peters, and Jones inflicted 

cruel and unusual punishment against him either by participating in or allowing Banner to 

physically assault him. Additionally, he asserts that Nooth permitted King to retaliate against 

him by unjustifiably filing a misconduct repmt against Voth after Voth filed an inmate 

discrimination complaint pertaining to Banner's alleged physical violence. 

Voth filed Discrimination Complaint No. SRCI-2014-10-185 on October 28, 2014. In it, 

Voth described the manner in which Banner was physically abusing and assaulting him. Voth 

also stated his belief that he received this treatment because of his race. On December 8, 2014, 

N ooth provided Voth with his findings, which stated that there was insufficient evidence to 

support Voth's allegations of discrimination. Voth appealed Nooth's response; however, his 

appeal was returned to him because Voth failed to attach Nooth's response, as required by OR. 

ADMIN. R. 291-006-0040(1). Voth did not resubmit his appeal, thus failing to appeal the 

decision to its highest level within the grievance system prior to filing an action in court. 

FINDINGS AND RECOMMENDATION 12 {TJK} 

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Voth also filed Grievance No. SRCI-2014-11-048, stating King had disciplined Voth for 

filing the above-mentioned discrimination complaint. In accordance with the internal-grievance 

process, King responded to Voth's grievance, and Voth elected not to appeal King's response to 

the functional unit manager, as is allowed under OR. ADMIN. R. 291-109-0170(1). Much like his 

discrimination complaint, Voth failed to appeal the grievance decision to its highest level within 

the grievance system prior to filing this action. 

There is no indication in the record that Voth submitted any other grievances pertaining 

to his first claim for relief, let alone any grievances that made full use of DOC's administrative 

process - nor has Voth provided the court with any evidence that the existing and generally 

available administrative remedies were effectively unavailable to him. Instead, with respect to 

his first claim, the records shows Voth did not use all of the administrative steps made available 

to him prior to bringing this action. 

B. Voth 's Second Claim 

Much like his first claim, Voth's second claim alleges that Defendants King, Bauner, 

Peters, and Jones conspired with known and unknown prison officials to physically injure Voth 

while he was housed in the ASU. Additionally, Voth alleges that he has written inmate 

communications and filed grievances attempting to notify prison officials of the physical injuries 

being inflicted upon him. Lastly, Voth argues he repeatedly requested to be released from the 

ASU and transfen-ed to OSCI pursuant to an alleged consent degree that the Oregon Department 

of Justice filed in state court. 

Aside from Discrimination Complaint No. SRCI-2014-10-185 and Grievance Form No. 

SRCI-2014-11-048, discussed above, as well as Grievance No. OSP-2014-05-026, .which was 

returned to him because he failed to show "how there ha[ d] been a misapplication of a 

FINDINGS AND RECOMMENDATION 13 {TJK} 

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directive/procedure," (First Am. Comp!. Ex. 1 ), the record contains no evidence that Voth 

properly grieved these issues, as is required under the PLRA. Voth filed a number of inmate 

communication forms pertaining to these issues, but, by themselves, such forms are not 

"attempts to grieve." See Tolle v. Or. Dep't of Corr., No. 2:11-cv-00980-MO, 2012 WL 775060, 

at * 2 (D. Or. Mar. 6, 2012) (holding that inmate communication forms are not "attempts to 

grieve") (internal quotations omitted). Thus, Voth simply failed to comply with the procedural 

rules made available to him. In fact, Voth. appears to acknowledge that he has not exhausted his 

administrative remedies but argues that any grievances he has submitted cannot be addressed 

because he filed suit, causing the grievance process to cease pursuant to OR. ADMIN. R. 291-109-

0140(3)(h). (See First Am. Comp!., at 5; Resp. to Def.'s Mot. for Summ. J., at 3-4.) Voth thus 

asserts that DOC's administrative remedies are effectively unavailable to him and argues that in 

Nunez v. Duncan, 591 F.3d 1217 (9th Cir. 2010) the Ninth Circuit recognized administrative 

exhaustion may be excused when administrative remedies are effectively unavailable. 

In Nunez, the inmate properly initiated the grievance procedure and was advised by the 

warden that he would need to review a particular regulation in order to appeal his grievance. Id. 

at 1220. However, the warden cited the incotTect regulation which actually referred to material 

unavailable to inmates. Id. Even so, the inmate diligently attempted to access the regulation for 

several months. Id. at 1226. The court concluded that, based on the warden's specific response 

to the grievance, the inmate "believed in good faith that [the cited regulation] was necessary, not 

merely useful, for preparing his appeal." Id. at 1225. The court accordingly held that "[r]ational 

inmates cannot be expected to use grievance procedures to achieve the procedures' purpose 

when they are misled into believing they must respond to a particular document in order to 

FINDINGS AND RECOMMENDATION 14 {TJK} 

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effectively pursue their administrative remedies and that document is then not available." Id. at 

1226 (citations omitted). 

Here, by contrast, there is no indication Voth was misled. Rather, Voth simply did not 

comply with the grievance system's rules; indeed, he failed to submit grievances pertaining to a 

number of issues, and with respect to the grievances or discrimination complaints he did submit, 

he failed to appeal the decisions to the highest level within the grievance system prior to filing 

an action in court. The PLRA requires completion of the administrative process in accordance 

with the prison's own grievance procedures. By electing to pursue the issues in court instead of 

first using all available administrative remedies, and doing so in accordance with DOC's 

grievance procedures, Voth did not properly use all of the steps DOC held out to him. Thus, 

unlike the inmate in Nunez, administrative remedies were available to Voth, but he elected to 

bypass them. 

C. Voth 's Third Claim 

Last, Voth contends Rojas improperly viewed and erased all of Voth's legal pleadings 

contained on his personal thumb drive. Voth filed three grievances related to this matter. First, 

Voth filed Grievance No. SRCI-2014-06-076 on June 10, 2014, arguing Rojas told Voth that she 

had deleted all of his pleadings contained on Voth's personal thumb drive. Four months later, 

Voth submitted a second grievance form - which was given the same grievance number -

because he had not received a response to the June 10 grievance. Thereafter, Voth received a 

response from the grievance coordinator, who informed Voth that his grievance had been 

returned without response because Voth filed a lawsuit pertaining to the issue and DOC does not 

allow inmates to grieve an issue that the inmate is pursuing in court. Finally, Voth sent a third 

grievance form, Grievance No. SRCI-2014-12-066, requesting Rojas provide him with the legal 

FINDINGS AND RECOMMENDATION 15 {TJK} 

Case 2:14-cv-01855-AC Document 79 Filed 04/27/16 Page 15 of 17
material she copied from his thumb drive prior to erasure. This grievance was returned because 

Voth failed to provide the date and to attach the relevant document. Voth failed to resubmit the 

third grievance. 

Voth did not pursue his first and second grievance, Grievance No. SRCI-2014-06-076, to 

its highest level within the grievance system. Instead, he attempted to bypass SRCI' s available 

administrative remedies by pursuing the issue in court, thereby skirting SRCI' s procedural rules, 

which make clear that prisoners are prohibited from pursuing an issue in court while 

simultaneously grieving the issue within the prison's administrative system. Voth's attempt to 

bypass administrative remedies left SRCI's administration with no choice but to dismiss the 

grievance on procedural grounds prior to exhaustion. 

As with his second claim, Voth argues that administrative remedies are effectively 

unavailable to him because he filed suit in court, causing the grievance process to cease. As 

explained, the PLRA requires adherence to the prison's grievance procedures prior to filing an 

action in court. By simultaneously pursuing the issue he was grieving in court, Voth did not 

comply with all ofDOC's grievance procedures, which expressly prohibit such action. Properly 

compliance with all administrative remedies is a perquisite to filing an action in court, and Voth 

failed to adhere to that requirement. 

As to his third grievance, Grievance No. SRCI-2014-12-066, Voth failed to comply with 

the prison grievance system's critical procedural rule by failing to provide the date and attach the 

relevant documents to the grievance form. There is no indication that prison officials would 

have declined to hear the merits of his grievance or attempted to obstruct, exhaust, or prevent 

Voth from resubmitting his grievance because procedures for processing grievances were not 

followed. Instead, by failing to resubmit his grievance, Voth plainly failed to properly use all of 

FINDINGS AND RECOMMENDATION 16 {TJK} 

Case 2:14-cv-01855-AC Document 79 Filed 04/27/16 Page 16 of 17
the steps DOC held out to him, despite the fact that administrative remedies were available. 

Consequently, with respect to his third claim, the records shows Voth did not did exhaust his 

administrative remedies. 

Conclusion 

For the reasons stated above, Defendants have shown that Voth had administrative 

remedies available and that he did not exhaust those remedies with respect to all three of his 

claims. The burden thus shifted to Voth to point the court to evidence showing that the existing 

and generally available administrative remedies were effectively unavailable to him. For the 

reasons stated above, Voth failed to meet that burden on all three of his claims. Consequently, 

Defendants' Motion for Summary Judgment (Dkt No. 57), based on the PLRA's exhaustion 

requirement, should be GRANTED. 

Scheduling Order 

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

are due May 14, 2016. Ifno objections are filed, then the Findings and Recommendation will go 

under advisement on that date. 

If objections are filed, then a response is due within 14 days after being served with a 

copy of the objections. When the response is due or filed, whichever is earlier, the Findings and 

Recommendation will go under advisement. 

DATED thi§) /th day of April, 2016. 

FINDINGS AND RECOMMENDATION 17 

// l/ 

J

11

1 

[ -··· j v--

J O HN V. ACOSTA 

United St.ates Magistrate Judge / 

{TJK} 

Case 2:14-cv-01855-AC Document 79 Filed 04/27/16 Page 17 of 17