Opinion
3:20-cv-1185-YY
01-03-2023
BILLY BROSOWSKE, Plaintiff, v. SHERIDAN FDC, DR. HUNTER, DR. GRASLEY, CO. MOODY, NURSE ANDERSON, AND DR. GRADY, Defendants.
FINDINGS AND RECOMMENDATIONS
YOU, MAGISTRATE JUDGE
FINDINGS
Pro se plaintiff Billy Brosowske, an adult in custody (“AIC”) at the Federal Correctional Institution in Sheridan, Oregon (“FCI Sheridan”), has brought this civil rights action against defendants pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Plaintiff alleges that defendants failed to provide him with adequate medical care in violation of his Eighth Amendment rights.
Defendants have filed a motion for summary judgment (ECF 40), arguing that this case should be dismissed for plaintiff's failure to exhaust his claims pursuant to the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). Because plaintiff has not exhausted his administrative remedies, defendants' motion for summary judgment (ECF 40) should be GRANTED.
I. Legal Standards
A. Summary Judgment
Under Federal Rule of Civil Procedure 56(a), “[t]he court shall grant 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.” The party moving for summary judgment bears the initial responsibility of informing the court of the basis for the motion and identifying portions of the pleadings, depositions, answers to interrogatories, admissions, or affidavits that demonstrate the absence of a triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party does so, the nonmoving party must “go beyond the pleadings” and “designate ‘specific facts showing that there is a genuine issue for trial.'” Id. at 324 (citing FED. R. CIV. P. 56(e)).
In determining what facts are material, the court considers the underlying substantive law regarding the claims. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). Otherwise stated, only disputes over facts that might affect the outcome of the suit preclude the entry of summary judgment. Id. A dispute about a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Id. at 248-49. A “scintilla of evidence” or “evidence that is merely colorable or not significantly probative” is insufficient to create a genuine issue of material fact. Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). The court “does not weigh the evidence or determine the truth of the matter, but only determines whether there is a genuine issue for trial.” Balint v. Carson City, Nev., 180 F.3d 1047, 1054 (9th Cir. 1999). “Reasonable doubts as to the existence of material factual issue are resolved against the moving parties and inferences are drawn in the light most favorable to the non-moving party.” Addisu, 198 F.3d at 1134 (citation omitted).
B. Pro Se Pleading Standard
Federal courts hold a pro se litigant's pleadings to “less stringent standards than formal pleadings drafted by lawyers.” Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987). “Although . . . pro se litigant[s] . . . may be entitled to great leeway when the court construes [their] pleadings, those pleadings nonetheless must meet some minimum threshold in providing a defendant with notice of what it is that it allegedly did wrong.” Brazil v. U.S. Dep't of Navy, 66 F.3d 193, 199 (9th Cir. 1995).
Moreover, on a motion for summary judgment, a pro se party involved in civil litigation “should not be treated more favorably than parties with attorneys of record.” Jacobsen v. Filler, 790 F.2d 1362, 1364 (9th Cir. 1986). “It is not the district court's job to sift through the record to find admissible evidence in support of a non-moving party's case.” Claar v. Burlington N.R.R., 29 F.3d 499, 504 (9th Cir. 1994) (quoting Celotex, 477 U.S. at 324). Simply put, in areas “where [a] plaintiff does not identify specific evidence in the record to support his assertions, the Court is not required to search for it.” Woodroffe v. Oregon, No. 2:12-CV-00124-SI, 2015 WL 2125908, at *2 (D. Or. May 6, 2015), aff'dsub nom. Woodroffe v. Kulongoski, 745 Fed.Appx. 728 (9th Cir. 2018).
II. Background
Plaintiff filed an Amended Complaint on December 23, 2022. Am. Compl., ECF 13. In his Amended Complaint, plaintiff alleges the following:
The Amended Complaint is unverified, which means that it was filed without a sworn statement declaring, under penalty of perjury, the allegations are true and correct in accordance with 28 U.S.C. § 1746. See Wickizer v. Crim, No. 3:18-CV-01816-AC, 2022 WL 543073, at *1 (D. Or. Feb. 2, 2022), findings and recommendation adopted, 2022 WL 541510 (D. Or. Feb. 23, 2022). As such, the court may not treat the Amended Complaint as an affidavit opposing defendants' motion for summary judgment. See id. (citing Lew v. Kona Hosp., 754 F.2d 1420, 1423 (9th Cir. 1985) (an unverified complaint is insufficient to counter a summary judgment motion supported by affidavits)); cf. Schroeder v. McDonald, 55 F.3d 454 (1995) (“A verified complaint may be used as an opposing affidavit under Rule 56.”).
Plaintiff first arrived in FCI Sheridan in March 2020 and, at that time, was a drug addict. Id. at 1. Plaintiff had been prescribed two medications to treat his drug addiction-“100 mg of Adderal” and “2 mgs of klonopin”-and both medications were “to be continued in jail.” Id. at 2. Plaintiff “begged over and over for help,” but he was denied the medications and became “more depressed than [he had] ever been.” Id. Because defendants failed to provide plaintiff with his requested medications, plaintiff attempted to commit suicide on April 13, 2020. Id. at 3. Plaintiff alleges, “defendants cannot say they did not know of my medical needs. I not only begged and asked multiple nurses and doctor[s] and officers working daily in my unit, I gave them my outside doctor[']s phone number and agreed to let them get my medical records and scripts.” Id. at 5.
Based on those factual allegations, plaintiff's section 1983 claim asserts that defendants have shown “continued deliberate indifference to [his] serious medical needs.” Id. at 3. Defendants argue that plaintiff's claims “fail as a matter of law because he failed to exhaust his available administrative remedies.” Mot. 6, ECF 40.
III. PLRA Exhaustion
The PLRA requires AICs to exhaust all available administrative remedies before filing a federal action to redress prison conditions or incidents. See 42 U.S.C § 1997e(a) (“[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a[n AIC] confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted”); see also, Porter v. Nussle, 534 U.S. 516, 532 (2002) (holding that “the PLRA's exhaustion requirement applies to all [AIC] suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong”).
The exhaustion requirement is mandatory and requires compliance with both procedural and substantive elements of the prison administrative process. Woodford v. Ngo, 548 U.S. 81, 85, 90 (2006); McKinney v. Carey, 311 F.3d 1198, 1199-1200 (9th Cir. 2002) (per curiam). A defendant has the initial burden to show that the AIC failed to exhaust available administrative remedies. Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (noting,“defendants must produce evidence proving failure to exhaust to carry their burden”). If the defendant shows that the AIC did not exhaust an available administrative remedy, “the burden shifts to the [AIC] to come forward with evidence showing that there is something in his particular case that made the existing and generally available administrative remedies effectively unavailable to him.” Albino, 747 F.3d at 1172; see also Ross v. Blake, 578 U.S. 632, 642 (2016) (“[A]n [AIC] is required to exhaust those, but only those, grievance procedures that are ‘capable of use' to obtain ‘some relief for the action complained of.'”) (citation omitted). This burden is met when the AIC shows that the AIC took “reasonable and appropriate steps” to pursue administrative remedies, but prison officials nonetheless interfered with the AIC's attempts to exhaust or failed to follow correct grievance protocols. Nunez v. Duncan, 591 F.3d 1217, 1224 (9th Cir. 2010).
III. Federal Bureau of Prisons (“BOP”) Administrative Remedy Program
The Federal BOP Administrative Remedy Program regulations set out four levels of review for AIC grievances: (1) informal resolution (BP-8), (2) formal complaint (Form BP-9), formal appeal (Form BP-10), and (4) second formal appeal (Form BP-11). See 28 C.F.R. §§ 542.10, 542.13-542.15; Baumeister Decl. ¶ 7, ECF 47. An AIC must first seek informal resolution of a grievance with a staff member by filing Form BP-8. 28 C.F.R. § 542.13 (noting “an [AIC] shall first present an issue of concern informally to staff, and staff shall attempt to informally resolve the issue”); Baumeister Decl. ¶ 7 (explaining “[t]he informal resolution form is colloquially referred to as a BP-8”). If the AIC is dissatisfied with the informal response, the AIC may file a formal Administrative Remedy Request to the warden by submitting a Form BP-9 within twenty days of the alleged condition or incident. 28 C.F.R. § 542.14; Baumeister Decl. ¶ 7. If the AIC is dissatisfied with the warden's response, the AIC may appeal by filing a Form BP-10 with the appropriate Regional Director within twenty days of the warden's decision. 28 C.F.R. § 542.15(a); Baumeister Decl. ¶ 7. The AIC may file a final appeal, a Form BP-11, with BOP's General Counsel in Washington, D.C., within thirty days of the Regional Director's decision. 28 C.F.R. § 542.15(a); Baumeister Decl. ¶ 7. The AIC may receive extensions of time for filing a Form BP-9 or subsequent appeal if a “valid reason for delay” is shown. 28 C.F.R. §§ 542.14(b), 542.15(a). Lastly, the “[e]xhaustion of administrative remedies does not occur until the [AIC] has requested and been denied relief at all levels of BOP.” Baumeister Decl. ¶ 8.
IV. Analysis
Regarding the BOP Administrative Remedy Program, defendants have the initial burden of showing that plaintiff failed to exhaust available administrative remedies. The Unit Manager for FCI Sheridan, Jennifer Baumeister, states in her declaration that she is familiar with the BOP's Administrative Remedy Program and has access to AIC records related to that program through the BOP's database known as SENTRY. Baumeister Decl. ¶ 9. Baumeister attests that plaintiff's SENTRY records show that he filed “two remedy requests while incarcerated at FCI Sheridan”-neither of which raised “any of the complaints or related subject matter listed in the instant civil complaint.” Id. at ¶ 11 (citing Ex. B, a SENTRY report showing plaintiff's administrative remedy filings). Baumeister further attests that “[p]laintiff has not filed any additional requests with the BOP's Office of General Counsel in Washington, D.C.” Id. Plaintiff does not dispute this evidence or argue that he exhausted available administrative remedies. Therefore, defendants have met their burden of showing that plaintiff failed to exhaust existing and available administrative remedies. See Albino, 747 F.3d at 1166.
The burden then shifts to plaintiff to show that he took “reasonable and appropriate steps to exhaust his . . . claim and was precluded from exhausting, not through his own fault but by the Warden's mistake.” Nunez, 591 F.3d at 1224. Plaintiff alleges that he attempted to exhaust available remedies “first by speaking to nurses whom said my medication was not formulary and denied me[,]” and also that he “raised the issue with Dr. Grasley who once again ended up denying me.” Resp. 2, ECF 46. Plaintiff further alleges that he “started the actual administrative process by filing with counselor Hamilton a BP-8,” but “heard nothing back.” Id.
Although plaintiff fails to specify when he allegedly filed Form BP-8 and cites no evidence showing that he did so, he seems to imply that “prison officials . . . interfered with [his] attempts to exhaust or failed to follow correct grievance protocols.” Osborne v. Peters, No. 2:20-CV-02260-MC, 2022 WL 2904395, at *2 (D. Or. July 22, 2022) (citing Nunez, 591 F.3d at 1224). Even assuming, however, that plaintiff filed Form BP-8 to initiate the grievance process and did not receive a response, he could have continued with the next stage of the grievance process. As defendants point out, BOP's administrative review process provides that if “the [AIC] does not receive a response within the time allotted for a reply, including extension, the [AIC] may consider the absence of a response to be a denial at that level.” Reply 5, ECF 48 (quoting 28 C.F.R. § 542.18). The regulations further provide that, “[i]f the AIC is dissatisfied with the informal response, the AIC may file a formal Administrative Remedy Request to the warden by submitting a Form BP-9 within twenty days of the alleged condition or incident.” 28 C.F.R. § 542.14. Thus, plaintiff did not need to receive a response to the Form BP-8 form before continuing with the grievance process by filing form BP-9, and he does not argue otherwise. See id. There is also no dispute that plaintiff was informed about the grievance process when he arrived at FCI Sheridan and told how to obtain and submit grievance forms. See Mot. 3; Baumeister Decl. ¶ 6 (noting that AICs, upon arrival to FCI Sheridan, “are informed about the BOP's Administrative Remedy Program[] and how to file a grievance to resolve any complaint regarding any aspect of their confinement” and are also “informed of the grievance process in the Admission and Orientation Handbook”). Plaintiff, in fact, submitted grievances regarding matters unrelated to the medical claim that he asserts in this action-which further shows his familiarity with the grievance forms and procedures at FCI Sheridan. Baumeister Decl. ¶ 11.
In sum, plaintiff has not shown that he took “reasonable and appropriate steps to exhaust his . . . claim and was precluded from exhausting, not through his own fault but by the Warden's mistake.” Nunez, 591 F.3d at 1224. There is no evidence that plaintiff filed any grievance regarding his medications or that anyone at FCI Sheridan “interfered with [his] attempts to exhaust or failed to follow correct grievance protocols.” Osborne, 2022 WL 2904395, at *2. Put differently, plaintiff has not shown that “there is something in his particular case that made the existing and generally available administrative remedies effectively unavailable to him.” Albino, 747 F.3d at 1172. Defendants are therefore entitled to summary judgment. See Maynard v.Cisneros, No. 3:20-CV-00691-MK, 2022 WL 2760058, at *3 (D. Or. June 7, 2022), report and recommendation adopted, 2022 WL 2755357 (D. Or. July 14, 2022) (granting the defendants summary judgment on the plaintiff's section 1983 claim where the “plaintiff fail[ed] to show that he took reasonable and appropriate steps to exhaust the BOP Administrative Remedy Program”).
RECOMMENDATIONS
Defendants' motion for summary judgment (ECF 40) should be GRANTED and plaintiff's claims should be dismissed without prejudice.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Tuesday, January 24, 2023. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.
NOTICE
These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.