HERNANDEZ v. CLOUTIER FCS (2020)

MEMORANDUM ***

Oregon state prisoner Aracely Hernandez appeals pro se from the district court’s summary judgment in her 42 U.S.C. § 1983 action alleging sexual assault by a prison employee. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Albino v. Baca, 747 F.3d 1162, 1168 (9th Cir. 2014) (en banc). We affirm in part, reverse in part, and remand.

The district court properly granted summary judgment on Hernandez’s retaliation and failure-to-investigate claims because Hernandez failed to exhaust administrative remedies as required under the Prison Litigation Reform Act (“PLRA”), and failed to raise a genuine dispute of material fact as to whether administrative remedies were effectively unavailable to her. See Woodford v. Ngo, 548 U.S. 81, 90, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) (the PLRA requires “proper exhaustion ․ which means using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits)” (citation and internal quotation marks omitted)); see also Ross v. Blake, ––– U.S. ––––, 136 S. Ct. 1850, 1858-60, 195 L.Ed.2d 117 (2016) (setting forth circumstances when administrative remedies are effectively unavailable); Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009) (a prisoner’s grievance must “alert[ ] the prison to the nature of the wrong for which redress is sought” (citation and internal quotation marks omitted)).

The district court properly granted summary judgment on Hernandez’s state law claims because Hernandez failed to satisfy the notice requirements of the Oregon Tort Claims Act (“OTCA”). See Or. Rev. Stat. § 30.275(2)(b) (plaintiff seeking to file claims against an Oregon public body or its employees must provide notice of that claim within 180 days after the alleged loss or injury); Denucci v. Henningsen, 248 Or.App. 59, 273 P.3d 148, 154 (2012) (failure to give timely notice required under the OTCA is “fatal” to a plaintiff’s claims).

The district court did not abuse its discretion in declining to consider Hernandez’s “Objection to Defendants’ Reply” because the filing was an unauthorized sur-reply under the local rules. See Bias v. Moynihan, 508 F.3d 1212, 1223 (9th Cir. 2007) (setting forth standard of review and noting that “[b]road deference is given to a district court’s interpretation of its local rules.” (citation omitted)); D. Or. R. 7-1(f) (no sur-replies are generally permitted without prior authorization of the court).

However, the district court erred in granting summary judgment for failure to exhaust administrative remedies on Hernandez’s Eighth Amendment failure-to-protect claim. Construing all the facts and inferences in the light most favorable to Hernandez, the record shows that Hernandez was not required to continue to appeal her grievance about the sexual assault incident because the prison granted or partially granted Hernandez relief. See Harvey v. Jordan, 605 F.3d 681, 685 (9th Cir. 2010) (“An inmate has no obligation to appeal from a grant of relief, or a partial grant that satisfies [her], in order to exhaust [her] administrative remedies.”); see also Soto v. Sweetman, 882 F.3d 865, 872 (9th Cir. 2018) (“[C]ourts should construe liberally motion papers and pleadings filed by pro se inmates” (citation omitted)). Therefore, we reverse and remand for further proceedings on this claim only.

We do not consider allegations raised for the first time on appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

The parties shall bear their own costs on appeal.

AFFRIMED in part, REVERSED in part, and REMANDED.