Aracely Hernandez v. D. Cloutier ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 15 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARACELY HERNANDEZ, No. 19-35648
Plaintiff-Appellant, D.C. No. 3:18-cv-00433-MK
v.
MEMORANDUM*
D. CLOUTIER, FCS; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Mustafa T. Kasubhai, Magistrate Judge, Presiding**
Submitted April 7, 2020***
Before: TASHIMA, BYBEE, and WATFORD, Circuit Judges.
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
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The parties consented to proceed before a magistrate judge. See
28 U.S.C. § 636(c).
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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 (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, 136 S. Ct. 1850, 1858-60 (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.
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Henningsen, 273 P.3d 148, 154 (Or. App. 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
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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.
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