Opinion
CIV-19-1173-D
06-22-2021
KENT L. FAULKNER, Plaintiff, v. JOEL MCCURDY, et. al., Defendants.
SECOND SUPPLEMENTAL REPORT AND RECOMMENDATION
GARY M. PURCELL 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 Defendants Terri Sample and Mike McDougal's Motion to Dismiss. Doc. No. 42. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). After review, it is recommended the Motion to Dismiss, as converted to a Motion for Summary Judgment, be granted based on Plaintiff's failure to exhaust administrative remedies.
Plaintiff initiated this lawsuit as a pro se litigant on December 19, 2019. Doc. No. 1. Counsel entered her appearance on January 7, 2021. Doc. No. 27.
I. Plaintiff's Allegations
This case arises from allegations that while Plaintiff has been incarcerated at Joseph Harp Correctional Center (“JHCC”), Defendants were deliberately indifferent to his medical needs. 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 Defendant 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. Defendant Sample observed it and stated that it was infected, though she did not attempt to determine the cause of the same. Id. Plaintiff again requested to visit the hospital, reminding Defendant 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, Defendant 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. Defendant 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 Defendant Mike McDougal, the JHCC Medical Administrator, was aware of these circumstances and 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 McDougal and Sample alleging they violated his Eighth Amendment rights based on deliberate indifference to his medical needs. Defendants have filed a Motion to Dismiss wherein they request dismissal of Plaintiff's claims against them based on, inter alia, Plaintiff's failure to exhaust administrative remedies. Doc. No. 42 at 11-20. Because Defendants rely, in part, on evidentiary documents outside of the pleadings in support of their Motion, and Plaintiff was advised of his responsibilities under Fed.R.Civ.P. 12 and 56 in responding to Defendants' Motion, see Doc. No. 43, 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. Uncontroverted Facts
As noted in the Court's discussion of converting the current Motion to a request for summary judgment, Defendants set forth various factual assertions that are supported by documents within their Special Report, which they filed on December 1, 2020. Doc. No. 21. On that same date, Defendants, having previously obtained Court approval to do so, filed one attachment under seal that contained Plaintiff's medical records. Doc. No. 22. In their Motion, Defendants rely on these medical records to argue they were not deliberately indifferent to Plaintiff's medical needs. Doc. No. 42 at 20-25.
In an Order issued on March 23, 2021, the Court specifically explained to Plaintiff that to the extent Defendants supported the assertions within their Motion with affidavits and/or other documentary evidence, Plaintiff “must respond with affidavits and/or documentary evidence as is appropriate under Fed.R.Civ.P. 56.” Doc. No. 43 at 1. Plaintiff did not do so. Instead, Plaintiff's counsel inexplicably states that she cannot respond to certain of Defendants' factual assertions because they are supported by medical records that were filed with this Court under seal. Doc. No. 44 at 5.
Plaintiff's counsel entered her appearance in this matter on January 7, 2021, one month after Defendants filed their Special Report and well over two months prior to the filing of the current Motion. Doc. No. 27. Because the Special Report and its attachments, including those filed under seal, were provided to Plaintiff, Plaintiff's counsel should have been able to obtain these materials from her client. Presuming without deciding that she was unable to do so, counsel could, and should, have requested the same from opposing counsel. Certainly she should have done so prior to filing a response to a dispositive motion that relied on records Plaintiff's counsel did not possess.
In granting Defendants' Motion, this Court relies on Plaintiff's failure to exhaust his administrative remedies. Nevertheless, Defendants' additional assertions, which are supported by the record and not disputed beyond Plaintiff's conclusory statement that “they make absolutely no sense, ” see Doc. No. 44 at 6, are noteworthy in light of Plaintiff's counsel's concerning failure to substantively address the same.
On March 3, 2018, Plaintiff was seen in the JHCC medical clinic for blisters on his heel and a reddened toe. Doc. No. 22-1 at 30. The registered nurse, Tammy Beasley, noted that the toe did not present any heat or drainage. Id.
On March 6, 2018, Plaintiff was again seen at the JHCC medical clinic, this time by Defendant Sample, for a suspected “diabetic ulcer of the right foot” and suspected cellulitis of the right leg. Id. at 27. Defendant Sample noted a nurse had requested she examine a blister on Plaintiff's heel but in the meantime, Plaintiff reported that he “self-removed the great toenail because it was ‘catching on stuff'; it has progressively become red and he was running fever last night - - took [T]ylenol. In addition, when I asked him about the coumadin, he says he is not taking it because he no longer needs it and he ‘weaned himself off it.'” Id. at 28. Defendant Sample observed the right foot was swollen and red and “the nail bed is white with maceration and bloody with drainage ....” Id. She concluded that she would “inform Dr. Moore that he is no longer taking the warfarin; will have the nurse inspect the foot in a few days to see if there is improvement. He does not want to attend wound care and truthfully there is nothing to be done. If he doesn't improve, he may end up in the hospital.” Id.
Two days later, on March 8, 2021, RN Beasley indicated that Plaintiff was called to main medical three times and had not shown up after two and a half hours. Id. at 24, 26. On March 9, 2018, RN Beasley examined Plaintiff's toe. Id. at 25. She noted that it was likely infected as it was red, swollen, drainage and a foul odor were present, and the top of his toe was macerated. Id. She applied medication to help with drainage, and she also wrapped it in gauze. Id. She instructed Plaintiff to notify nursing if he thought the foot was deteriorating further, and to attend wound care. Id.
Later on the same date, in accordance with the above records, Defendant Sample noted that the nurse had reported Plaintiff's foot was worse. Id. at 22. She further noted, “Keeping in mind that it is suspected that this inmate will self-injur[e] a wound and has been known to lie about taking antibiotics, I will switch his antibiotic to clindamycin at pill line. Also[, ] will write order for [E]psom salt soaks and cover with gauze. He has an appointment at OU on Monday.” Id. That night, an LPN recorded that they changed Plaintiff's dressing, noted moderate drainage, and provided an Epsom salt soak for 15-20 minutes. Id. at 21. Similar treatment was provided the following morning and it was noted that Plaintiff “refuses to go to pill line 3 times a day for his antibiotic.” Id. at 20. Later that afternoon, Plaintiff was admitted to Lindsay Municipal Hospital. Id. at 18-19.
IV. Exhaustion of Administrative Remedies
A. Requirement for Exhaustion of Administrative Remedies
Defendants contend Plaintiff failed, prior to filing this action, to exhaust administrative remedies through the Oklahoma Department of Corrections (“ODOC”) grievance procedure. Doc. No. 42 at 11-20. 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 that 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
Defendants have requested the Court dismiss Plaintiff's claims against them based on Plaintiff's failure to exhaust his administrative remedies prior to initiating this lawsuit. Rather than respond to the merits of Defendants' argument, Plaintiff merely states, in wholly conclusory fashion, that the grievances Plaintiff filed illustrate that the grievance “process is not practical and erects a barrier incapable of navigating by prisoners.” Doc. No. 44 at 4.
V. Defendant Sample
The factual allegations upon which Plaintiff bases his Eighth Amendment claim against Defendant Sample are relatively limited. He asserts Defendant
Sample was aware prior to 2018 that Plaintiff had Type 2 diabetes and a history of problems with his feet. Doc. No. 1 at 7. As previously discussed, he alleges that on or about March 6, 2018, Defendant Sample saw Plaintiff and in spite of the fact that his toe was swollen to three times its natural size, she merely stated that it was infected and did not attempt to determine the cause of the same. Id. She also denied Plaintiff's request to be sent to the hospital, although she had previously granted such requests when he suffered similar infections. Id.
Plaintiff did not submit a Request to Staff regarding Defendant Sample's medical care, or alleged lack thereof, until April 15, 2019. Doc. No. 21-31 at 910. On May 6, 2019, Plaintiff received a response in which the official asked Plaintiff to specify the action he was requesting. Id. at 9. On May 13, 2019, Plaintiff submitted a Grievance based on the same allegations. Id. at 7-8. Therein, Plaintiff requested monetary compensation and to prevent similar deliberate indifference from occurring in the future. Id. at 7. On June 5, 2019, Plaintiff received a response indicating the Grievance was out of time from the incident, which Plaintiff had identified as occurring on March 27, 2018. Id. at 6. On June 6, 2019, Plaintiff filed a request to file an appeal out of time. Id. at 3-4. Plaintiff's appeal was rejected because, as the response explained, inter alia, Plaintiff had not previously submitted an appeal that was declared untimely. Id. at 2.
The Court is limiting its discussion herein to the Requests to Staff and related administrative process materials relevant to Plaintiff's claims.
Plaintiff's right leg was amputated on March 27, 2018. Doc. No. 1 at 10.
In considering Plaintiff's efforts to exhaust, the Court must take his particular circumstances into account. Plaintiff was not informed until after he had been hospitalized that his amputations may have been avoidable if he had been transferred to the hospital sooner. Plaintiff did not return to JHCC following his amputations until April 27, 2018. Id. at 10. Thus, it is unlikely, if not impossible, that Plaintiff could have filed a Request to Staff within ten days of any relevant date.
Nevertheless, presuming Plaintiff could not file a relevant Request to Staff prior to his return, his attempts to complete the administrative process remain untimely. Plaintiff did not file a Request to Staff regarding Defendant Sample's medical care until April 15, 2019, almost a full year after his return. Id. at 9-10. At that point, Plaintiff's attempts to exhaust his administrative remedies were exceedingly out of time.
Perhaps recognizing this problem, in his Response, Plaintiff relies on Ross to support his argument that he is excused from exhaustion. He states that a prisoner need not exhaust remedies if they are not available. Doc. No. 44 at 3-4. In Ross, the Supreme Court did indeed hold that the PLRA requires an inmate to exhaust only those administrative remedies that are “available.” The Court noted that the administrative remedy process is not “available” when the procedure “operates as a simple dead end” because the “administrative scheme [is] so opaque that . . . no reasonable prisoner can use [it].” Ross, 136 S.Ct. at 1859 (quotations omitted). However, Plaintiff does not offer any explanation as to how ODOC's administrative process is so confusing as to render it incapable of use. Moreover, 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.
Plaintiff's failure to exhaust administrative remedies is fatal to federal judicial review of his claim against Defendant Sample. Woodford, 548 U.S. at 9092. Accordingly, the undersigned recommends Defendant Sample'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 to address the remaining bases for Defendant Sample's request for dismissal/summary judgment.
VI. Defendant McDougal
Plaintiff also asserts an Eighth Amendment deliberate indifference claim against Defendant McDougal. Plaintiff alleges that by April 2019, Hanger Clinic had determined that he needed a new socket for his prosthesis. Doc. No. 1 at 11. Plaintiff's leg shrunk two inches in diameter and as a result, the prosthesis was causing a great deal of pain when he walked. Id. Plaintiff contends that Defendant McDougal was aware of these circumstances and by his own admission, took no action to obtain a new socket for five weeks. Id. Eight months later, when Plaintiff filed the present case, he still had not obtained a new socket for his prosthesis. Id.
A. Individual Requests to Staff
On July 16, 2019, Plaintiff submitted a Request to Staff to Defendant McDougal inquiring as to why a previously scheduled appointment with Hanger Clinic had been changed. Doc. No. 21-13 at 2. Defendant McDougal responded by explaining that Hanger Clinic changed the appointment date but in doing so, did not provide an explanation. Id. On the same date, Plaintiff submitted another Request to Staff in which he requested that his appointment with Hanger Clinic be changed from August to July. Doc. No. 21-14 at 2. An employee in “Main Medical” responded by explaining that Hanger Clinic indicated that it did not have a sooner appointment available. Id.
On August 15, 2019, Plaintiff submitted a Request to Staff to Defendant McDougal requesting a meeting to discuss his prosthetic and the Hanger Clinic. Doc. No. 21-15 at 2. Plaintiff explained that he had been to Hanger Clinic that day and been informed that he was in dire need of a new socket for his prosthetic resulting from his leg shrinking in diameter. Id. at 2-3. In the response portion of the Request to Staff, Defendant McDougal noted the requested meeting had occurred and that Defendant McDougal had requested Plaintiff's records from Hanger Clinic. Id. at 2. Defendant McDougal also advised Plaintiff that Hanger Clinic had ten days to respond to the request and directed Plaintiff to file another Request to Staff on August 30, 2019, so they could check the status of the same. Id.
On August 29, 2019, Plaintiff submitted said Request to Staff inquiring as to the status of obtaining his records from Hanger Clinic. Doc. No. 21-16 at 2. In response, Defendant McDougal advised Plaintiff to meet with him on September 12, 2019. Id.
B. October 1, 2019 Request to Staff and Appeal
On October 1, 2019, Plaintiff submitted a Request to Staff to Defendant McDougal again inquiring as to the status of his new prosthetic socket. Doc. No. 21-17 at 2. Defendant McDougal responded that they had met on October 17, 2019, and it was explained to Plaintiff that Hanger Clinic had informed them that the doctor did not have his notes yet from Plaintiff's previous appointment. Id.
On November 7, 2019, Plaintiff submitted a Grievance from this Request to Staff. Doc. No. 21-33 at 8. Therein, Plaintiff explained that during the October 17, 2019 meeting, Defendant McDougal “stated that he had done nothing about my new socket for the last 5 weeks.” Id. Plaintiff complained that Defendant McDougal should be pushing Hanger Clinic to furnish the doctor's notes and schedule Plaintiff's appointment to get his new socket. Id. On November 26, 2019, Plaintiff received a response wherein the Reviewing Authority explained, “In review of your medical chart and other pertinent information, we received a cost estimate for your socket on October 22, 2019 from Hanger Clinic. The estimate will go before our URC committee in December and if approved[, ] an appointment will be set with Hanger Clinic. Relief denied.” Id. at 7.
On December 4, 2019, Plaintiff submitted a Grievance Appeal in which he requested the delays to his medical care be stopped. Id. at 4-5. He also requested monetary compensation for the deliberate indifference to his medical needs that he had endured and the physical pain he had suffered as a result. Id. Although Plaintiff had clearly sought more than just monetary compensation, on January 3, 2020, his appeal was rejected because he had included a request for monetary compensation. Id. at 2. The response also informed Plaintiff that he could “correct the error within 10 days.” Id. Plaintiff did not do so.
C. October 17, 2019 Request to Staff and Appeal
Plaintiff submitted a Request to Staff to Defendant McDougal on October 17, 2019, in which he inquired as to why his prosthetic socket had not arrived. Doc. No. 21-18 at 2-3. He also stated that Defendant McDougal's six month delay in obtaining the socket demonstrated deliberate indifference to his medical needs. Id. An official responded that Defendant McDougal had met with Plaintiff on October 17, 2019, and that they would be contacting Hanger Clinic requesting records from Plaintiff's last visit. Id. at 2.
Plaintiff filed a Grievance from this Request to Staff on November 7, 2019. Doc. No. 34 at 7. He asserted that Defendant McDougal was being deliberately indifferent to his medical needs and requested Defendant McDougal push Hanger Clinic for the doctor's note and push Oklahoma City Medical Services to approve his prosthetic socket. Id. Plaintiff's Grievance was rejected because Plaintiff had included documents in addition to the Request to Staff and because the issues raised had been addressed in a previous grievance. Id. at 6.
On December 16, 2019, Plaintiff submitted a Grievance Appeal asserting, inter alia, that the delay on the part of Defendant McDougal constituted deliberate indifference. Id. at 4. In his request for action, he stated that he wanted the “deliberate indifference to my medical need to stop and get my new badly needed socket and[/]or compensation.” Id. On January 15, 2020, his appeal was again rejected because he had included a request for monetary compensation. Id. at 2. The response also informed Plaintiff that he could “correct the error within 10 days.” Id.
In his Motion for Summary Judgment, Defendant argues that because Plaintiff did not resubmit the appeals he filed after they were rejected, he failed to complete the administrative remedy process. The undersigned agrees.
ODOC's grievance process specifically provides that grievances shall not be submitted requesting monetary compensation. Doc. No. 21-7 at 5. Here, Plaintiff asked for not only monetary compensation but also sought to stop further delay with regard to his medical care and to obtain his new prosthetic socket. Doc. Nos. 21-33 at 5, 21-34 at 4. Plaintiff was provided the opportunity to resubmit the appeals without his requests for monetary compensation but failed to do so.
As previously noted, “[a]n inmate who begins the grievance process but does not complete it is barred from pursuing a § 1983 claim under [the] PLRA for failure to exhaust his administrative remedies.” Jernigan, 304 F.3d at 1032. Further, substantial compliance with the grievance procedures is insufficient. Id.
By not resubmitting his appeals as instructed, Plaintiff failed to employ the administrative remedies available to him. Id. at 1032-33. Thus, Plaintiff did not complete the exhaustion of his administrative remedies prior to filing the current lawsuit. Because this failure is fatal to federal judicial review of his claims, Woodford, 548 U.S. at 90-92, the undersigned recommends Defendant McDougal's Motion, converted to one seeking summary judgment, be granted.
In light of the recommendation herein, it is unnecessary to address the remaining bases for Defendant McDougal's request for dismissal/summary judgment.
RECOMMENDATION
Based on the foregoing findings, it is recommended Defendants Sample and McDougal's Motion to Dismiss, converted to a Motion for Summary Judgment, (Doc. No. 42) be GRANTED and judgment be entered in Defendants Sample and McDougal's favor based upon Plaintiff's failure to exhaust his administrative remedies. Plaintiff is advised of the right to file an objection to this Second Supplemental Report and Recommendation with the Clerk of this Court by July 12th , 2021, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. The failure to timely object to this Second 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 Second Supplemental Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motion not specifically addressed herein is denied.
On June 15, 2021, Plaintiff voluntarily dismissed the final remaining Defendant, Joel McCurdy, pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i).