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Grievances Exhausted When No Relief Available; Oregon DOC Fails to Prove Non-Exhaustion.

A federal court in Oregon has held that prisoners are not required to exhaust all levels of the prison grievance process when all requested relief is granted before the final step of the grievance process.

On December 8, 2004, Oregon prisoner Warren Brown fell from his toilet while cleaning a vent in his cell, breaking a bone in his right foot.

Brown was taken to the infirmary but was not examined by a physician and his foot was not X-rayed. He "was discharged with an ace bandage and a prescription for Motrin. He was advised to elevate his foot and apply ice," but "he did not have access to ice?." His "foot swelled and his toes turned purple and blue."

On December 15, 2004, Physician Assistant (PA) Stephen Smith "advised Brown that his toe was possibly broken, but did not refer Brown to a physician, order an X-ray, place Brown's foot in a foot restraint, or provide any work restrictions."

Brown's foot was finally X-rayed on December 20, 2004, revealing the broken bone, but Brown was not informed of the results or treated.

On December 24, 2004, Brown was called to the infirmary but not seen by any medical personnel or advised of the X-ray results. Instead, a guard had been instructed to confiscate Brown's ace bandage, but "refused to comply and allowed Brown to keep the bandage."

On December 28, 2004, PA "Smith advised Brown that Smith had consulted with an orthopedic surgeon who determined Brown's toe did not require surgery."

Brown was required to continue working and wearing boots throughout January and February 2005. "His foot was swollen and bruised, and he was in significant pain and discomfort." His repeated requests for medical care were ignored.

In January 2005, a nurse demanded that Brown return the ace bandage and on January 24, 2005, PA Smith "advised Brown to buy his own aspirin and refused to provide any other pain management."

Brown was first seen by a physician on January 27, 2005. The doctor "advised Brown that he would need surgery ? to repair" the broken toe. The next day, however, PA Smith told Brown "that the break was healing properly" and he'd be scheduled to see another prison doctor in 30 days.

On February 4, 2005, Brown was again ordered to surrender the ace bandage. He was told he would be placed in disciplinary segregation if he failed to do so.

Brown continued to complain of pain and requested to see a physician, but his requests were ignored. On February 8, 2005, Brown filed a grievance, complaining of inadequate medical care and stating "I want my foot fixed -- taken care of the way it should have been done from the beginning. If it requires surgery then that is what I need."

A prison doctor examined Brown on February 16, 2005 and consulted with a foot specialist on February 25, 2005. On March 17, 2005, "Brown underwent surgery to place a screw in the fractured toe. He was prescribed Vicodin for pain management, a crutch and a footcast."

On March 21, 2005, prison officials answered Brown's grievance, stating, "you received surgical repair and have had ongoing care for this condition." Brown did not appeal the grievance response.

On August 18, 2005, Brown filed suit in federal court. Defendants moved to dismiss for failure to exhaust available administrative remedies, arguing that Brown had failed to pursue all steps of the grievance process.

The district court followed Brown v. Valoff, 422 F.3d 926 (9th Cir. 2005) in rejecting Defendants' argument. The court noted that Brown places the burden upon Defendants "to show affirmatively that pertinent relief remained available, whether at unexhausted levels of the grievance process or through awaiting the results of relief already granted as a result of that process."

Defendants failed to satisfy this burden because they did "not ? identify any relief that Brown could have obtained by pursuing his grievance on appeal despite the favorable result at the first level."
Prison officials "failed to show that any relief would have been available to Brown" after foot surgery if he had pursued his appeal.
Thus, the district court denied the Defendants' motion to dismiss.
Unfortunately, just a few months after this court victory, Brown died unexpectedly of heart failure at the Snake River Correctional Institution. See: Brown v. Duncan, USDC OR, Case No. 05-1293-PK (2006), 2006 WL 1280914.

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Related legal case

Brown v. Duncan