Torres v. Snider

TERESA TORRES, et al., Plaintiffs, v. DR. ROBERT W. SNIDER, et al., Defendants.

Case No. 3:17-cv-00624-SI

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

April 23, 2019

ORDER

Michael H. Simon, District Judge.

Plaintiffs Teresa Torres, Aracely Hernandez, and Gloria Seleen, have brought an action against Dr. Robert W. Snider, Dr. S. Shelton, and D. Brown, alleging that while Plaintiffs were incarcerated at Coffee Creek Corrections Facility ("CCCF") they were each sexually assaulted by Dr. Snider during mandatory gynecological exams and other medical procedures. Before the Court is Defendants' Motion for Partial Summary Judgment and Motion to Strike. ECF 35. For the reasons that follow, the motion is granted in part and denied in part.

BACKGROUND

Plaintiffs Torres, Hernandez, and Seleen, have filed this putative "class action" complaint bringing one federal claim and two state common law tort claims against Defendants. ECF 1. Although Plaintiffs titled their Complaint as a "class action," Plaintiffs never filed a motion for class certification, which was due on February 1, 2018. ECF 16-17. Defendants assert that this case should therefore not be considered a class action, which Plaintiffs do not contest in any of their responsive pleadings. Accordingly, the Court will not treat the case as a class action.

In their Complaint, Plaintiffs Torres, Hernandez, and Seleen allege (1) federal 42 U.S.C. §1983 ("Section 1983") claims for violations of the Eighth Amendment's prohibition against cruel and unusual punishment, (2) state tort claims for medical negligence, and (3) state tort claims for sexual battery. ECF 1. Plaintiff Seleen alleges that Dr. Snider saw her "on or about September 1, 2016" for "an OB/GYN health issue." Id. at ¶¶ 9-11. Plaintiff Seleen alleges that Dr. Snider "exposed her vagina and touched her leg in an erotic and caressing fashion near her vagina, . . . instructed her to disrobe in front of him and gave no privacy as he watched her expose herself and then retrieve a device from her cervix." Id. at ¶ 10. Plaintiff Torres alleges that "[s]ince February 2016," Dr. Snider saw her for six to twelve visits for "non-intimate" conditions such as anemia and asthma. Id. at ¶ 17. Plaintiff Torres alleges that Dr. Snider sexually assaulted her with intimate contact, including massaging her shoulders, the area around her breasts, and "down to her buttocks" during these visits. Id. Plaintiff Torres also alleges that she asked for a new provider and was not permitted to have one. Id. Plaintiff Hernandez alleges that Dr. Snider visited her "on or about December 8, 2016" following her gallbladder surgery, asked the nurse to leave the room, exposed Plaintiff Hernandez's vagina and cesarean section ("c-section") scar, cupped her breast under her bra, and pinched her nipple. Id. at ¶¶ 12-16.

Plaintiffs allege that Defendant Brown and Defendant Shelton "conspired to hinder or obstruct prosecution of Dr. Snider and/or deprive inmates of safe care." ECF 1. Plaintiff Torres was released from prison before the filing of the complaint in this case; Plaintiff Seleen is currently incarcerated but will be released before the trial of this matter. Plaintiff Hernandez is incarcerated and will likely remain incarcerated beyond the time set for trial.

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).

B. Exhaustion

The exhaustion provision of the Prison Litigation Reform Act ("PLRA") states:

No action shall be brought with respect to prison conditions under Section 1983 of this title, or any other Federal law, by a prisonerconfined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.

42 U.S.C. § 1997e(a). Failure to exhaust under the PLRA is "an affirmative defense the defendant must plead and prove." Jones v. Bock, 549 U.S. 199, 204 (2007). The defendant has the burden to prove that there was an available administrative remedy, which the prisoner failed to exhaust. Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014). After the defendant has carried that burden, the prisoner must produce evidence demonstrating that "the local remedies were ineffective, unobtainable, unduly prolonged, inadequate, or obviously futile." Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015). The ultimate burden of proof, however, rests with the defendant. Id.

DISCUSSION

Defendants have moved for partial summary judgment on the following grounds: (1) Plaintiffs Hernandez and Seleen failed to fully exhaust all of their available administrative remedies before the Complaint was filed against Defendants; (2) Plaintiffs' § 1983 claims for monetary damages against the named Defendants in their official capacities are barred by the Eleventh Amendment; (3) Plaintiffs' § 1983 claims must be based on an individual's personal involvement in depriving a constitutional right and cannot succeed under a respondeat superior theory; (4) Plaintiffs' failure to plead or prove economic damages on state law claims; (5) Plaintiffs' lack of entitlement to non-economic damages on state law claims; (6) Plaintiff Torres failed to file a timely tort claim notice for all of her allegations in support of her state common law tort claims; (7) the State of Oregon should be substituted in for the individual-named Defendants on the state common law claims; (8) after substituting in the State of Oregon, Plaintiffs' state common law tort claims should be dismissed pursuant to Eleventh Amendmentimmunity; and (9) Defendants Brown and Shelton are shielded from § 1983 liability by the doctrine of qualified immunity. ECF 35.¹

Plaintiffs have conceded that suit against Defendants in their official capacities is barred under the Eleventh Amendment and that Plaintiff Torres' tort claim notice was partially late, and therefore Plaintiff Torres relinquishes state claims not filed within the 180-day window (i.e., allegations occurring earlier than July 21, 2016). The Court therefore proceeds with the remaining portions of Defendants' motion for partial summary judgment that Plaintiffs do not concede.

A. Failure to Exhaust Administrative Remedies

The Prison Litigation Reform Act ("PLRA") requires exhaustion of all available administrative remedies before filing "any suit challenging prison conditions . . . ." Woodford v. Ngo, 548 U.S. 81, 85 (2006). Inmates are required to exhaust all available grievance remedies before filing a Section 1983 action, including appealing the grievance decision to the highest level within the grievance system. Bennett v. King, 293 F.3d 1096, 1098 (9th Cir. 2002); McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002). Under the PLRA, if a defendant shows that there was an available administrative remedy and that the prisoner did not exhaust that available remedy, then the prisoner has the burden of production to come forward with evidenceshowing that there is something in his particular case that made the existing and generally available administrative remedies effectively unavailable to him; however the ultimate burden of proving exhaustion as an affirmative defense remains with the defendant. Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014). In Oregon prisons, grievances are processed in accordance with the Oregon Administrative Rules (Or. Admin. R.) governing the Grievance Review System found in Chapter 291, Division 109. ECF 37 at ¶ 12.

Plaintiff Hernandez filed Grievance CCCF-2017-01-003, dated December 31, 2016, and received on January 4, 2017. Id. at ¶ 30, Ex. 8. The grievance stated that while Hernandez was housed in the infirmary recovering from gall bladder surgery, Dr. Snider came into her room and while examining her surgical incision, he molested her. On January 4, 2017, Captain Alana Bruns responded to Hernandez's grievance stating that hers allegations had been reported to the Oregon State Police and ODOC's Special Investigations Unit. Id. at ¶ 31; see also ¶ 30, Ex. 8. Plaintiff Hernandez did not file a first or second level appeal to grievance CCCF-2017-01-003. Id. at ¶ 32.

Plaintiff Seleen filed Grievance CCCF-2017-11-049 dated November 22, 2017 and received on November 29, 2017. Id. at ¶ 25, Ex. 7. Plaintiff Seleen alleges that she had been seen by Dr. Snider on or around September 9, 2016, and that he had made her remove a medical device from her cervix and "hot trash" it (meaning to dispose of it in a secure trash that other inmates do not have access to). Id. Plaintiff Seleen alleged that Dr. Snider had touched her leg near her vagina and was breathing heavily which made her feel like she was sexually assaulted. Id. Plaintiff Seleen also did not file any appeals to this grievance. Id. at ¶ 27.

This suit was filed on April 20, 2017. ECF No. 1. Plaintiff Seleen filed her grievance after...