[00:00:00] Speaker 00:
Good morning, Your Honors, and may it please the court. My name is Warrington Seabury. I'm here on behalf of the plaintiff, Mr. Damon Edwards, and I'd like to preserve two minutes for rebuttal.

[00:00:11] Speaker 00:
The district court erroneously dismissed Mr. Edwards' claims as time-barred because it failed to toll the statute of limitations for the entire period Mr. Edwards spent exhausting his administrative remedies.

[00:00:23] Speaker 00:
There are two independent ways that Mr. Edwards' claims are not time-barred. The first is under this court's precedent in Brown and Soto, which requires tolling for the entire period Mr. Edwards spent actively exhausting his administrative remedies, and that period is from October 3rd, 2022, until the final resolution of his grievances. The second is under ORS Section 12-210.

[00:00:47] Speaker 00:
Because the PLRA is a statutory prohibition that prohibits the commencement of a Section 1983 action until a prisoner exhausts their administrative remedies, Mr. Edwards is entitled to tolling from the date of accrual until the completion of of his exhaustion process.

[00:01:02] Speaker 03:
So, counsel, if hypothetically we were to decide that you were correct on the meaning of 12.210, we would not have to reach the question of equitable tolling. Is that right?

[00:01:17] Speaker 00:
That is correct, Your Honor. And we think that the Oregon statute is a very straightforward way to do tolling for PLRA exhaustion purposes.

[00:01:27] Speaker 02:
This argument that wasn't presented to the district court, correct?

[00:01:30] Speaker 00:
That is correct, Your Honor. However, we don't think that there's any impediment to this court reaching this issue because whether 12-10 applies here is a pure question of law. It is a straightforward question, and the clarity of the statute shows that as well. And this court has routinely heard issues or arguments that have not been presented when there is the benefit of supplemental briefing and not oral argument, which both parties have had the ability to do. And you certainly made the argument.

[00:02:00] Speaker 03:
although you didn't cite 12.210, you certainly made the argument that these periods of time were told shouldn't be counted and that the complaint was filed within the statute taking into account tolling.

[00:02:14] Speaker 00:
Indeed, Your Honor. At the motion to dismiss phase, Mr. Edwards, as a pro se litigant, did say that he is entitled to tolling while he is going through the grievance process. And so this argument is entirely consistent with what he argued earlier.

[00:02:26] Speaker 02:
Under 12.210.

[00:02:28] Speaker 02:
Is it your position that tolling begins or the period is tolled from the cruel of the cause of action?

[00:02:37] Speaker 00:
Yes, Your Honor, and this is because the PLRA requires exhaustion before they can bring – prisoners can bring a claim under 1983. But you don't need that, right?

[00:02:48] Speaker 03:
Well – If, for example, we were to say – that tolling doesn't begin when the cause of action accrues, but instead would begin when he filed his grievance, that's a matter of two days, right?

[00:03:02] Speaker 00:
It is a matter of two days.

[00:03:05] Speaker 00:
We think that under either path, if we go with the path that Mr. Edwards, on the day that Mr. Edwards submitted his grievance, his first grievance on October 3rd, he would be timely and certainly if you started on the date of accrual. And we think that starting on the date of accrual is entirely consistent with the PRA because prisoners have to exhaust their administrative remedies And he could not have filed.

[00:03:24] Speaker 04:
That can't be right, though, because if he does nothing, the clock is running from the date of the incident, right? So if he waits longer than the statute of limitations to prosecute his grievance, then the district court would be proper in dismissing because he wasn't actively prosecuting a grievance. So it seems to me the triggering event happens. for the running of the clock for tolling has to be on the date that he files the grievance, not the date of the incident.

[00:04:00] Speaker 00:
I'm respectfully honored. We disagree because from the date of accrual, if he wanted to come straight to federal court, he could not have because he would have been kicked out for failing to exhaust.

[00:04:08] Speaker 03:
But counsel, I'm sorry to interrupt.

[00:04:10] Speaker 00:
No, no, go ahead.

[00:04:11] Speaker 03:
Going back to Judge Talman's question. So where does your argument end? So here we have somebody who the cause of action, I think everybody agrees, accrued on the 1st of October, right? Yes, sir. So what if he'd filed his grievance a year later? Would that year be told as well?

[00:04:34] Speaker 00:
Well, in that case, Your Honor, he would not have been able to bring his claim to federal court because he would not have exhausted his administrative remedies.

[00:04:41] Speaker 04:
The prison requires... That's the point I was trying to make. I mean, there has to be an end point, and the end point is the statute of limitation...

[00:04:51] Speaker 04:
Because unless he's actively prosecuting a grievance, the clock is running from the date of accrual.

[00:05:00] Speaker 00:
Yes, Your Honor. And we think that under the tolling precedent, that's what this court has said, is that when a prisoner is actively exhausting. However, under the Oregon statute, it just says the prohibition of the commencement of an action. And Mr. Edwards could not have commenced the Section 1983 action from the date of accrual. And so the clarity of the statute says that he could not, that period should be tolled. Now, I understand that if he would have waited a year, he would have been beyond the deadline to start.

[00:05:25] Speaker 02:
Yes, Your Honor. We have to think about the local administrative procedures in this process, don't we? Because the local administrative procedures require that the administrative complaint be filed within 14 days.

[00:05:41] Speaker 00:
Correct, Your Honor. And this is why he could not wait a year to start actively exhausting his remedies because If he would have been beyond that period, he would not have submitted within the deadline, and then he would not have exhausted. And so it would have been a different question.

[00:05:56] Speaker 03:
So your view is the law requires us to give him those 14 – if that were the hypothetical, if he waited 13 days, that the law would somehow require us to give him the 13 days?

[00:06:08] Speaker 00:
That is what the statute says, Your Honor, because he's prohibited – I'm not sure that's what the statute says, but that's your position. Yes, Your Honor.

[00:06:16] Speaker 02:
Because he – This notion of – of active pursuit of the administrative remedies. Where does that come from?

[00:06:26] Speaker 00:
That comes from Soto, this court's decision in Soto where the court decided.

[00:06:30] Speaker 02:
In Soto, we were talking about equitable tolling.

[00:06:33] Speaker 00:
Correct, Your Honor.

[00:06:34] Speaker 02:
So I thought that term is used. I saw that term in one of those old Oregon Supreme Court cases.

[00:06:43] Speaker 00:
Actively exhausting? Exhausting.

[00:06:44] Speaker 02:
Well, actively pursuing, you know, that was the probate code provisions that relate to pursuing a claim against the administrator.

[00:06:55] Speaker 00:
In those cases, yes, they had to present that to the executor of the estate, and then the toll began. And similarly, in those cases, the statutory prohibition did not kick in until they presented those claims. In a prisoner's situation, if they have an injury, they then cannot bring their claim until they, it doesn't matter when they start exhausting.

[00:07:19] Speaker 00:
The moment that they have a claim under Section 1983 or something that can be grieved, they cannot bring their claim to federal court until they go through the process.

[00:07:27] Speaker 04:
Isn't the presentation of the prisoner's claim here on October 3 when he files his grievance?

[00:07:34] Speaker 00:
Yes, Your Honor. We absolutely agree with you that If you start the clock on October 3rd when he submitted his grievance, he is timely.

[00:07:41] Speaker 04:
I'm starting the clock on October 1, and I'm telling you, you don't get credit for the two days of delay. The clock is running. But if we agree with you that the clock starts at least on the date that he filed his grievance and is not complete until it is finally exhausted, you get tolling for what I think is 102 days.

[00:08:07] Speaker 04:
under the two-year statute, and you still win, do you not?

[00:08:12] Speaker 00:
Yes, completely. We do, Your Honor. We were just saying that this practically would make sense because it's still between those two days. It takes time for a prisoner to file a grievance.

[00:08:19] Speaker 04:
I understand that, but your argument, I thought, was that the district court erred by starting the tolling clock on the date the prison stamped it as received, which was what, October 13th?

[00:08:33] Speaker 00:
October 13th, yes, Your Honor. Okay.

[00:08:35] Speaker 04:
So 10 days. And if that's true, if the state is right, then he's out of time.

[00:08:42] Speaker 00:
Correct, Your Honor. Okay. I see that I'm out of time. I'd like to reserve the rest of my time for rebuttal. Thank you.

[00:08:46] Speaker 04:
All right.

[00:08:58] Speaker 01:
Good morning. May it please the court, Kirsten Nadeau on behalf of the state of Oregon defendants. Yes.

[00:09:04] Speaker 01:
If this court does apply Oregon Revised Statute 12.210, plaintiff is still not entitled to relief in this case. And that is because the plaintiff did not initiate the grievance process for the grievance that he ultimately exhausted until October 18th. All right.

[00:09:28] Speaker 03:
So let me push back on that a little.

[00:09:32] Speaker 03:
It's... unclear to me why we shouldn't exclude from the first filed grievance, which was October 3rd, until the exhaustion of everything was finished, which was January 13, 2023.

[00:09:50] Speaker 03:
I understand you're making the argument that he doesn't get anything from the time he filed his first grievance to the time he filed whatever it's called, the second or the amended, right? So how does that fit with the statutory scheme? Because I'm having trouble seeing it. I'm having trouble seeing why we start with the second or the amended grievance as opposed to the one he filed on October 3rd.

[00:10:18] Speaker 01:
I understand. So it is defendant's position that this is a second grievance, not an amended grievance. And that is because the grievance that he signed on October 3rd that was submitted on October 11th

[00:10:32] Speaker 03:
Well, it was stamped on October 11th.

[00:10:34] Speaker 01:
Excuse me, stamped, received on October 11th, was, you know, raised a claim. The prison responded to that claim and explained to plaintiffs that the grievance was unclear, that he had not cited a violation of any of the administrative rules and explained how he could amend that grievance.

[00:11:06] Speaker 04:
So the concern that the correctional officers had was we can't tell whether you were directly versus indirectly sprayed with caps.

[00:11:17] Speaker 01:
So the response to plaintiff on that first grievance was that it appeared to the prison that he had alleged that he received indirect exposure and that and that the prison had responded accordingly.

[00:11:31] Speaker 03:
I'm sorry to interrupt.

[00:11:32] Speaker 01:
Yes.

[00:11:34] Speaker 03:
Go ahead. That's notwithstanding the statement at ER 12, I was sprayed a good amount.

[00:11:44] Speaker 01:
And again, I'm looking at the response, and I apologize, I don't have the ER in front of me.

[00:11:50] Speaker 03:
Again, I was sprayed a good amount, being right next to the cell, on my face, arms, neck, and clothes. as well as my blankets, pillow, sheets, et cetera, and the fact that the relevant ACOs or their supervisors found that ambiguous means that this doesn't count.

[00:12:16] Speaker 01:
And that is correct because the prison responded and said, this is how we are interpreting your complaint. If that is incorrect, here are the procedures with which you can amend it.

[00:12:27] Speaker 04:
But how is this any different from filing a motion for a more definite statement of a complaint. I mean, that normally doesn't address whether or not it stops the running of some sort of a time clock. It just asks the grievant to more particularize the allegations that he has made so that it is clear to the prison officials what it is that he's complaining about.

[00:12:54] Speaker 01:
Certainly. And again, here we are applying the administrative rules to you know, that the prison has adopted in order to, you know, effectuate this grievance system. And under this grievance system, you know, the plaintiff could have amended that grievance and resubmitted it again. Those instructions were given to him.

[00:13:17] Speaker 01:
Instead, plaintiff waited additional time and then submitted a second grievance. And so,

[00:13:23] Speaker 04:
But he's still talking about the same claim that accrued on October 1, right? There's only one spraying incident.

[00:13:30] Speaker 03:
That is correct. I'm just having a lot of trouble here understanding Oregon's argument. I mean, I understand what you're saying. And I can understand a context where somebody submits a grievance that they were beaten up by ACO Smith.

[00:13:49] Speaker 03:
It's denied. And then they come in and say, oh, I was also beaten up by ACO Jones. And I mean, I can see reasonable people could differ in some circumstances about whether something is or isn't totally new.

[00:14:05] Speaker 03:
But when I'm looking at what the inmate actually said, I was sprayed, where it all landed, the pain started bringing my face, lungs, eyes, arms, and neck. I also began retching and coughing when I tried to breathe. I pleaded with the ACOs to allow me to decontaminate. I just have trouble understanding how the state saying this is unclear, was it really you who were sprayed directly, or are you saying something else?

[00:14:41] Speaker 03:
I just fail to see how that can turn The second thing where he tried to address this into something different.

[00:14:52] Speaker 03:
Is there any policy reason that would support that?

[00:14:56] Speaker 01:
So, you know, again, we're in applying. So I have two things to say about that. So first, in applying the, you know, administrative rules here, the, you know, the prison is, again, you know, adopting a grievance process to effectuate or, excuse me, to deal with you know, at times a high-volume number of grievances that might come through the prison. And, again, under the rules here, you know, plaintiff was given every opportunity to amend that, you know, initial grievance and instead chose to file a new one.

[00:15:32] Speaker 04:
And the reason that we have these kind of – Well, he had to file a new one because they essentially denied the first one, right, as not being sufficiently particularized.

[00:15:41] Speaker 01:
No.

[00:15:42] Speaker 01:
No, they returned it and gave him the opportunity to clarify, which is actually what happened.

[00:15:47] Speaker 02:
They could have treated the second one just as an amendment to the first one.

[00:15:53] Speaker 02:
Let's assume for a moment that your argument doesn't prevail.

[00:16:00] Speaker 02:
And that was going to bring me to my second point, which is— So isn't the district court wrong in its calculations?

[00:16:08] Speaker 01:
No.

[00:16:10] Speaker 01:
under, you know, assuming this court disagrees with that first argument, then, you know, the district court did note in its order that there was this initial complaint that was filed.

[00:16:22] Speaker 01:
But under, you know, even under that timeline where that complaint was stamped received on October 11th, plaintiff was still outside the statute of limitations.

[00:16:33] Speaker 03:
I'm sorry. So your argument is that even... that we don't look at the date that under the mailbox rule or something else that he put it into process. We look at the date that it's stamped received.

[00:16:50] Speaker 01:
Correct.

[00:16:51] Speaker 03:
Whether it's 10 days later or 10 years later.

[00:16:56] Speaker 01:
So on the face of the pleadings that we have here where we have a date stamp received and plaintiff is not alleging that there was a lengthy delay in that stamp received, this court should apply the organ administrative rules here again, which are promulgated to process a large number of grievances within the prison in a timely manner and to keep the process moving.

[00:17:34] Speaker 03:
where would we stop?

[00:17:37] Speaker 01:
And I guess, certainly.

[00:17:39] Speaker 03:
You're saying 10 days is okay, if I'm counting right, but if we were to agree with you, where would we stop? Where would we say something isn't okay? 10 days is okay, 10 years isn't okay. Where would we stop and how would we determine what criteria we would use to decide whether 10 days is okay, whether 15 days is okay, whether 30 days is okay, the 10 years isn't okay?

[00:18:11] Speaker 01:
So, first of all, you know, so first the rules itself, the rule, you know, the rules that the prison is applying here, you know, set out a timeline. And this court has, in other instances, upheld, you know, prisons adopting rules grievance policies, rules, and requiring adults in custody to adhere to those rules in exhausting the administrative grievance process.

[00:18:42] Speaker 01:
And so absent a suggestion that the rules are being arbitrarily disregarded or are not being applied fairly, that there is a tenure gap, that would certainly raise concerns. But here we have a prison applying a rule that has been adopted, that's been in place, that was communicated to plaintiff. And this court has, again, in other contexts, upheld those kinds of rules to effectuate this kind of process within a prison.

[00:19:14] Speaker 04:
Should we be concerned about the fact that once he tenders the grievance to a correctional officer, the prison could retaliate against him by just sitting on it for any length of time and not stamping it as received. He doesn't have any control over that.

[00:19:36] Speaker 01:
You know, and I think that is a, you know, I take plaintiff's point on that, and that is, you know, part of the reasoning why the mailbox rule exists. However, again, what we're dealing with here is an internal administrative system that has rules that have been adopted, that the prison is applying. And I guess, finally, I see that I'm over time. I'm just going to finish this one thought. The reasons for adopting these kinds of rules is to reduce the confusion about when dates are filed, when things are received by the prison.

[00:20:13] Speaker 01:
If things are received whenever an inmate handwrites the date, then we may be talking about a confusion about dates in almost every case.

[00:20:26] Speaker 01:
And I see that I'm well over my time and we would ask.

[00:20:29] Speaker 03:
We've taken up a lot of your time with questions and I have one more.

[00:20:32] Speaker 01:
Certainly.

[00:20:32] Speaker 03:
So if hypothetically we were to find that we took the grievances filed on October 3rd and excluded all of the time between October 3rd up to and including January 13th of 2023, and we're going to apply 174.120. Would you agree that it's timely? Yes. All right. Thank you.

[00:21:13] Speaker 00:
Just a few brief points, Your Honor.

[00:21:16] Speaker 00:
As you all mentioned when my colleague was up here, the grievances, the October 3rd grievance and the subsequent grievance definitely involved the same topic. He did amend it to address the concerns identified by the prison. And just to mention, the prison also treated the October 3rd grievance as part of the same process. This is at ER 22. In the letter, the defendants identified the – They were identifying the second grievance as outlining the same incident as the first grievance.

[00:21:46] Speaker 00:
They noted that Mr. Everett's filed a prior grievance, and they referred to the October grievance using the ID number of that grievance. And they also referred to that grievance as the first grievance. And so this shows, and at this stage we take the evidence of life most favorable to Mr. Everett's, that they treated this all part of the same process. And the second thing I'd like to address is that the date of submission is the date that we asked this court to start the toll.

[00:22:12] Speaker 00:
because as Your Honor noted, once a prisoner releases the grievance from their hand, it is completely out of their control, and fairness concerns sort of are the animating principles of the prison mailbox rule that this court identified in Brown, wherein it said that absent some adjustment, it could be unfair if the prisoner has to wait for the prison to investigate and stamp it and whatnot, and also the Supreme Court in Houston recognized that these are the concerns that we have with allowing the We're not tolling when a prisoner submits their papers and it leaves their hands.

[00:22:45] Speaker 00:
And so if Your Honors don't have any other questions, we just ask that the court reverse under either path Mr. Evers' claims are timely.

[00:22:52] Speaker 03:
All right. Thank you.

[00:22:53] Speaker 00:
We thank counsel for their arguments. The case just argued is submitted.