Opinion
CIV-19-1173-D
01-26-2021
KENT L. FAULKNER, Plaintiff, v. JOEL MCCURDY, et. al., Defendants.
SUPPLEMENTAL REPORT AND RECOMMENDATION
GARY M PURCELL, UNITED STATES MAGISTRATE JUDGE
Plaintiff, a state prisoner, brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights. Before the Court is Defendant Scott Crow's Motion to Dismiss. Doc. No. 23. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). For the following reasons, it is recommended the Motion to Dismiss, as converted to a Motion for Summary Judgment, be granted.
I. Plaintiff's Allegations
This case arises from allegations that while Plaintiff has been incarcerated at Joseph Harp Correctional Center (“JHCC”), Defendant failed to supervise and maintain adequate staffing levels of medical personnel. Specifically, Plaintiff explains that he has been incarcerated at JHCC since February 2013, is a Type 2 diabetic, and has been hospitalized numerous times due to diabetes related problems with his hands and feet. Doc. No. 1 at 7. In March 2018, Plaintiff notified RN Tammy Bull that his right big toe was infected and requested to go to the hospital based on past infections of this kind. Id. at 7, 9. Bull denied this request but scheduled an appointment for Plaintiff to see APRN Terri Sample on or about March 6, 2018. Id.
During his subsequent visit, Plaintiff's toe was swollen to three times its natural size. Id. Sample observed it and stated that it was infected, though did not attempt to determine the cause of the same. Id. Plaintiff again requested to visit the hospital, reminding Sample of the previous incidents in which he suffered similar infections and she had sent him to the hospital where he had been admitted. Id. On this occasion, however, Sample denied Plaintiff's request. Id. Plaintiff also requested pain medication, stating that his pain was at a seven on a ten-point scale. Id. at 9. Sample also denied this request, though she did prescribe antibiotics, which Plaintiff never received. Id.
On March 7, 2018, Plaintiff observed a hole, through which he could see bone, in his right big toe. Id. He showed this to the night nurse but she responded that there was nothing she could do except send a medical request to the doctor on duty, which she did. Id. Plaintiff never received a response. Id. Plaintiff asked again to be transferred to the hospital but said request was denied. Id.
On or about March 10, 2018, Plaintiff went to see Bull again and she observed that his right big toe was black and emanating an odor. Id. Bull sent Plaintiff to the hospital, where he was immediately admitted. Id. at 7, 9. On March 12, 2018, Dr. Nemery at Lindsey Memorial Hospital (“LMH”) informed Plaintiff that his toe was gangrenous and would need to be amputated. Id. at 10. Dr. Nemery also prescribed a course of antibiotics because Plaintiff's bloodwork showed the presence of numerous infections. Id. Dr. Nemery stated that if Plaintiff had been sent to the hospital sooner, he might not have lost his toe. Id.
Over the following two weeks, Plaintiff remained hospitalized. During that time, the infections did not respond to the antibiotics and continued to damage Plaintiff's foot. Id. Doctors informed Plaintiff that there were signs the infections had already surpassed his ankle and recommended a below the knee amputation of his right leg. Id. This procedure was performed on March 27, 2018. Id. Plaintiff remained at LMH until April 3, 2018, whereupon he was transferred to Lexington Correctional Center infirmary where he was not provided pain medication for twenty-four days. Id. On April 27, 2018, Plaintiff was transferred back to JHCC where he was also denied pain medication and not provided therapy to assist him in adjusting to his missing right leg. Id.
Plaintiff also alleges that in April 2019, Hanger Clinic informed him that he needed a new socket for his prosthesis. Id. at 11. Because Plaintiff's leg had shrunk two inches in diameter, the prosthesis was causing a great deal of pain when he walked. Id. Plaintiff alleges that Medical Administrator Mike McDougal was aware of these circumstances and McDougal admitted that he had not done anything to obtain a new socket for five weeks. Id. As of the date Plaintiff filed his Complaint in this matter, he still had not obtained a new socket for this prosthesis. Id.
Based on these allegations, Plaintiff asserts Eighth Amendment claims against Defendants Scott Crow, Joel McCurdy, Mike McDougal, and Terri Sample. Specific to Defendant Crow, Plaintiff alleges Defendant Crow violated Plaintiff's Eighth Amendment rights based on inadequate medical staffing and supervision.
Defendant Crow has filed a Motion to Dismiss wherein he requests dismissal of Plaintiff's claims against him based on, inter alia, Plaintiff's failure to exhaust administrative remedies. Doc. No. 23. Because Defendant relies, in part, on evidentiary documents outside of the pleadings in support of his Motion, and Plaintiff was advised of his responsibilities under Fed.R.Civ.P. 12 and 56 in responding to Defendant's Motion, see Doc. No. 24, the Motion will be considered as one seeking summary judgment. See Arnold v. Air Midwest, Inc., 100 F.3d 857, 859 n.2 (10th Cir. 1996) (“Notice to the parties is required to prevent unfair surprise when a judge converts a 12(b)(6) motion into a Rule 56 motion.”); Brown v. Zavaras, 63 F.3d 967, 969 (10th Cir. 1995) (explaining that courts may convert motion to dismiss into motion for summary judgment in order to consider matters outside of the pleadings); Wheeler v. Hurdman, 825 F.2d 257, 260 (10th Cir. 1987) (“[W]hen a party submits material beyond the pleadings in support of . . . a motion to dismiss, the prior action on the part of the part[y] puts them on notice that the judge may treat the motion as a Rule 56 motion.”).
II. Standard of Review
Summary judgment may only be granted when there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). In considering a motion for summary judgment, the Court reviews the evidence and inferences drawn from the record in the light most favorable to the nonmoving party. Burke v. Utah Transit Auth. & Local, 462 F.3d 1253, 1258 (10th Cir. 2006).
A dispute is “genuine” if a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Material facts are “facts that might affect the outcome of the suit under the governing law ....” Id. “At the summary judgment stage, a complainant cannot rest on mere allegations, but must set forth by affidavit or other evidence specific facts, which for purposes of the summary judgment motion will be taken to be true.” Burke, 462 F.3d at 1258 (quotations omitted). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quotations omitted).
III. Exhaustion of Administrative Remedies
A. Requirement for Exhaustion of Administrative Remedies
Defendant contends Plaintiff failed, prior to filing this action, to exhaust administrative remedies through the Oklahoma Department of Corrections (“ODOC”) grievance procedure. Doc. No. 23 at 3-11. Proper exhaustion of administrative remedies is mandated by the Prison Litigation Reform Act (“PLRA”), which provides that a prisoner cannot bring an action “with respect to prison conditions under [§] 1983 . . . until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a); see also Jones v. Bock, 549 U.S. 199, 211 (2007) (“There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court.”); Ross v. Blake, __U.S.__, 136 S.Ct. 1850, 1857 (2016) (“[T]he history of the PLRA underscores the mandatory nature of its exhaustion regime.”).
The exhaustion doctrine protects administrative agency authority and promotes efficiency. Woodford v. Ngo, 548 U.S. 81, 89 (2006). Because the exhaustion doctrine is an affirmative defense, the defendants “bear the [initial] burden of asserting and proving that the plaintiff did not utilize administrative remedies.” Tuckel v. Grover, 660 F.3d 1249, 1254 (10th Cir. 2011). Once the defendant demonstrates a plaintiff has failed to exhaust his administrative remedies, “the onus falls on the plaintiff to show that remedies were unavailable to him[.]” Id.
Further, “substantial compliance [with the grievance procedure] is insufficient.” Fields v. Okla. State Penitentiary, 511 F.3d 1109, 1112 (10th Cir. 2007). Proper exhaustion requires compliance with all of the prison's grievance procedures, including adherence to “deadlines and other critical procedural rules[, ] because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings.” Woodford, 548 U.S. at 90-91. Thus, “[a]n inmate who begins the grievance process but does not complete it is barred from pursuing a § 1983 claim[.]” Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002).
There is no exception to the exhaustion requirement for “special circumstances.” Ross, 136 S.Ct. at 1856-57 (discussing mandatory language means a court may not excuse a failure to exhaust, even to take special circumstances into account) (citing Miller v. French, 530 U.S. 327, 337 (2000) (explaining that “[t]he mandatory ‘shall' . . . normally creates an obligation impervious to judicial discretion”)). Thus, if administrative remedies are available, an inmate must complete each step of the administrative process before a federal court can consider the merits of the inmate's complaint based on alleged violations of constitutional rights.
B. Grievance Procedure for Oklahoma Inmates
The ODOC's grievance procedure is clearly set forth in the ODOC Inmate/Offender Grievance Process OP-090124. Doc. No. 21-7. Initially, a prisoner must seek to resolve any complaint by informally raising the matter with an appropriate staff member. Id. at 8. If the matter is not resolved informally, the prisoner must submit a Request to Staff within seven calendar days of the incident, raising only one issue therein. Id. at 8-9.
If the Request to Staff does not successfully resolve the issue, the prisoner must submit a formal Grievance Form, with a copy of the Request to Staff attached, to the appropriate facility reviewing authority within 15 calendar days from the date of the response to the Request to Staff, and can only raise one issue. Id. at 10-12. The reviewing authority will assign a number to each grievance received and will generally answer the grievance within 20 days of its receipt. Id. at 12. If the grievance is denied by the reviewing authority at the prison level, a prisoner must appeal the decision to the Administrative Review Authority within 15 days of receipt of the same to complete exhaustion of his administrative remedies. Id. at 14-17.
When inmates face an emergency or have a sensitive grievance as defined in OP-090124, they can file a grievance directly to the reviewing authority (or to the Administrative Review Authority, if the emergency or sensitive grievance involves the reviewing authority) without attempting to informally resolve the dispute. Id. at 17-18. The reviewing authority must determine within twenty-four hours whether the grievance is of a sensitive nature or requires emergency handling. Id. at 18. If the reviewing authority decides the matter does not involve a true emergency or a sensitive topic, the inmate must restart the administrative process by trying to informally resolve the dispute and resubmitting the grievance. Id. at 8-17.
C. Plaintiff's Failure to Exhaust
Defendant has requested the Court dismiss Plaintiff's claims against him based on Plaintiff's failure to exhaust his administrative remedies prior to initiating this lawsuit. Defendant contends that not only did Plaintiff not complete the administrative remedy process, but he never at any point raised his claims against Defendant Crow within the grievance process. Doc. No. 23 at 3-11. As Plaintiff notes, his claims against Defendant Crow arise primarily from his contention that “Defendant Crow failed to maintain proper staffing levels at JHCC and throughout Oklahoma's prison system.” Doc. No. 28 at 2. Plaintiff argues herein that “there are no available remedies to exhaust regarding issues of inadequate staffing levels” and therefore he was not required to complete the administrative process. Id. In this, Plaintiff is incorrect.
It is well-established that § 1997e(a)'s exhaustion requirement applies to all prisoners seeking redress for prison circumstances or occurrences, regardless of the specific remedies sought. “Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit.” Robinson v. Adame, 832 Fed.Appx. 542, 545 (10th Cir. 2020) (quoting Porter v. Nussle, 534 U.S. 516, 524 (2002)). “[W]e stress the point . . . that we will not read futility or other exceptions into [the PLRA's] statutory exhaustion requirements[.]” Booth v. Churner, 532 U.S. 731, 741 n.6 (2001).
In Booth . . ., the prisoner argued that exhaustion was not necessary because he wanted a type of relief that the administrative process did not provide. But § 1997e(a), we replied, made no distinctions based on the particular “forms of relief sought and offered, ” and that legislative judgment must control: We would not read “exceptions into statutory exhaustion requirements where Congress has provided otherwise.” Id., at 741, n.6 []. The next year, in Porter [], 534 U.S. [at] 520 [] (2002), the Court rejected a proposal to carve out excessive-force claims . . . from the PLRA's exhaustion regime, viewing that approach too as inconsistent with the uncompromising statutory text.Ross, 136 S.Ct. at 1857. So long as the administrative procedure grants “authority to take some action in response to a complaint, ” that procedure is considered “available, ” even if it cannot provide “the remedial action an inmate demands.” Booth, 532 U.S. at 736; see also id. at 739 (“Congress meant to require procedural exhaustion regardless of the fit between a prisoner's prayer for relief and the administrative remedies possible.”). Thus, Plaintiff's argument that he is excused from exhausting administrative procedures because there were no remedies available related to his underlying claims against Defendant is without merit.
In his Response, Plaintiff relies on Ross to support his argument that he is excused from exhaustion. He states that “[a]n inmate need exhaust only such administrative remedies as are ‘available.'” Doc. No. 28 at 3 (quoting Ross, 136 S.Ct. at 1862). Plaintiff then states that ODOC has maintained that “this not a grievable issue in [] terms of an Eighth Amendment claim nor does [] Defendant provide what remedies are available thus relying on conclusory statements.” Doc. No. 28 at 3. As an initial matter, Plaintiff's argument is wholly unclear with regard to ODOC's alleged position that “this is not a grievable issue.” Without explanation, the undersigned can only deduce that Plaintiff is referencing responses to grievances related to his medical care indicating that monetary remedies were not available through the administrative process. Doc. No. 21-31 at 2, 6. If this is indeed Plaintiff's reference, the Court has already explained the Supreme Court's rulings that the inability to receive the remedies requested does not excuse a party from the PLRA's exhaustion requirement. See, supra.
More significantly, Plaintiff misunderstands the Court's holding in Ross. In Ross, the Supreme Court did indeed hold that the PLRA requires an inmate to exhaust only those administrative remedies that are “available.” However, at issue in Ross was the availability of the process itself, rather than the availability of a particular remedy sought. The Court noted that the administrative remedy process is not “available” when the procedure “operates as a simple dead end” because “the relevant administrative procedure lacks authority to provide any relief, ” or “administrative officials have apparent authority, but decline ever to exercise it, ” the “administrative scheme [is] so opaque that . . . no reasonable prisoner can use them, ” or when “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Ross, 136 S.Ct. at 1859-60 (quotations omitted).
With regard to the first example, Plaintiff does not dispute that he never raised the claims he asserts against Defendant Crow within the grievance procedure. Thus, there is no basis to determine that officials would have declined to exercise their authority had they determined there were grounds to do so. Second, the Court outlined the grievance procedure above and in doing so, finds that it is not so opaque as to prevent a reasonable prisoner from completing the same. Finally, Plaintiff has not presented any argument that officials prevented him from completing the exhaustion process.
Plaintiff's failure to exhaust administrative remedies is fatal to federal judicial review of his claims. Woodford, 548 U.S. at 90-92. Accordingly, the undersigned recommends Defendant's Motion, converted to one seeking summary judgment, be granted. See Calbart v. Sauer, 504 Fed.Appx. 778, 784 (10th Cir. 2012) (affirming the district court's granting of summary judgment in favor of the defendants against the plaintiff's § 1983 claims based on the plaintiff's failure to exhaust administrative remedies).
In light of the recommendation herein, it is unnecessary for the undersigned to address the remaining bases for Defendant's request for dismissal/summary judgment.
RECOMMENDATION
Based on the foregoing findings, it is recommended Defendant Crow's Motion to Dismiss, converted to a Motion for Summary Judgment, (Doc. No. 23) be GRANTED and judgment be entered in Defendant's favor based upon Plaintiff's failure to exhaust his administrative remedies. Plaintiff is advised of the right to file an objection to this Supplemental Report and Recommendation with the Clerk of this Court by February 16th , 2021, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. The failure to timely object to this Supplemental Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.”).
This Supplemental Report and Recommendation partially disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter.