Opinion
No. 7:02-CV-097-R.
April 5, 2004
ORDER OF DISMISSAL
Came on to be considered Defendants' motion for summary judgment and Plaintiff's response thereto and the Court finds and orders as follows:
This is an action filed by an inmate confined in the James V. Allred Unit of the Texas Department of Criminal Justice ("TDCJ") in Iowa Park, Texas. Defendants are TDCJ employees who work at the Allred Unit. Plaintiff claims that Defendants failed to diagnose his broken arm and shoulder and that they refused to provide medical treatment for two weeks. Complaint ¶ V. He seeks monetary damages for pain and mental anguish. Id. at ¶ VI. 42 U.S.C. § 1997e mandates that inmates exhaust administrative remedies as a prerequisite to filing suit in federal court. Despite the fact that he seeks monetary damages, which are unavailable under the TDCJ grievance system, Plaintiff is required to exhaust such remedies prior to seeking relief in federal court. Booth v. Churner, 532 U.S. 731, 121 S.Ct. 1819 (2001).
Kirby claims that his arm and shoulder were broke during the 4th week of January 2001. Attachment to Complaint at p. 1. He claims that, because he was denied proper medical treatment at that time, he continues to suffer pain and lack of movement in his arm and shoulder. Id. at p. 2.
Defendants have submitted evidence showing that, on January 23, 2002, Plaintiff filed a Step 1 grievance complaining about the alleged delay in treatment at the time his injury occurred and about ongoing pain in his arm and shoulder. Defendants' Motion for Summary Judgment, Exhibit I at p. 308. In his response to the grievance, Warden Mooneyham stated that Plaintiff was last seen for shoulder pain on September 25, 2001 and that he had not complained since then. Id. at p. 309. Plaintiff was advised by Mooneyham that his office defers to the professional judgment of the medical department in providing medical care to inmates. Id. Thereafter Plaintiff filed a Step 2 grievance which was denied. As with the response to his Step 1 grievance, the Step 2 response dealt with the issue of Plaintiff's medical care at the time of the filing of the grievance. Id. at p. 321.
The TDCJ grievance program requires that a Step 1 grievance be filed within 15 days of the date of the alleged incident. Defendants' Motion for Summary Judgment, Exhibit J at p. 335. In his Step 1 grievance, Plaintiff concedes that it was filed almost a year after the injury occurred. Defendants' Motion for Summary Judgment, Exhibit I at p. 308. In response to Plaintiff's Step 1 grievance, Warden Mooneyham did not address Plaintiff's claim that he had been denied treatment for his broken shoulder and arm at the time of the incident. Id. at p. 309. He addressed only Plaintiff's current claims of continuing shoulder pain. Id.
By not raising the medical care claims at issue in the instant case in a timely Step 1 grievance, Plaintiff failed to avail himself of a potential remedy and of a statutory prerequisite to maintaining this lawsuit. He cannot circumvent the established grievance procedures and revive his right to bring suit by including year-old allegations in a grievance dealing with current medical care claims. Especially in light of the fact that the claims brought forth in the case at bar were not addressed in the TDCJ response to Plaintiff's grievance.
Summary judgment is proper when the pleadings and evidence illustrate that no genuine issue exists as to any material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Slaughter v. Southern Talc Co., 949 F.2d 167, 170 (5th Cir. 1991). Disputes concerning material facts are genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986)). Substantive law provides that an issue is "material" if it involves a fact that might affect the outcome of the suit under the governing law. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; Burgos v. Southwestern Bell Telephone Co., 20 F.3d 633, 635 (5th Cir. 1994). The nonmovant is not required to respond to the motion until the movant properly supports his motion with competent evidence. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553 (1986); Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995). However, once the movant has carried his burden of proof, the nonmovant may not sit idly by and wait for trial. Page v. DeLaune, 837 F.2d 233, 239 (5th Cir. 1988).
When a movant carries his initial burden, the burden then shifts to the nonmovant to show that the entry of summary judgment is inappropriate. Celotex, 477 U.S. at 322-24, 106 S.Ct. at 2552-53; Duckett v. City of Cedar Park, 950 F.2d 272, 276 (5th Cir. 1992). Although the nonmovant may satisfy this burden by tendering depositions, affidavits, and other competent evidence, "conclusory allegations, speculation, and unsubstantiated assertions are inadequate to satisfy the nonmovant's burden," Douglass, 79 F.3d at 1429, as "the adverse party's response . . . must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). Merely colorable evidence or evidence not significantly probative, however, will not defeat a properly supported motion for summary judgment. Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2510-11. Furthermore, a mere scintilla of evidence will not defeat a motion for summary judgment. Anderson, 477 U.S. at 252, 106 S.Ct. at 2512; Davis v. Chevron U.S.A., Inc., 14 F.3d 1082, 1086 (5th Cir. 1994).
Summary judgment evidence is viewed in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co., Ltd., v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356 (1986); Rosado v. Deters, 5 F.3d 119, 123 (5th Cir. 1993). In addition, factual controversies are resolved in favor of the nonmovant, but only when both parties have submitted evidence of contradictory facts, thus creating an actual controversy. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). In the absence of any proof, however, the Court does not assume that the nonmovant could or would prove the necessary facts. Id.
In making its determination on the motion, the Court looks at the full record including the pleadings, depositions, answers to interrogatories, admissions, and affidavits. Fed.R.Civ.P. 56(c); Williams v. Adams, 836 F.2d 958, 961 (5th Cir. 1988). However, "the [Court's] function is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249, 106 S.Ct. at 2511. The movant's motion for summary judgment will be granted if he meets his burden and the nonmovant fails to make the requisite showing that a genuine issue exists as to any material fact. Fed.R.Civ.P. 56(c); Campbell v. Sonat Offshore Drilling, Inc., 979 F.2d 1115, 1119 (5th Cir. 1992).
The summary judgment evidence presented in this case establishes that there are no genuine issues of material fact with regard to Plaintiff's failure to exhaust administrative remedies. Therefore, Defendants are entitled to summary judgment as a matter of law.
For the foregoing reasons, Defendants' motion for summary judgment is GRANTED and Plaintiff's complaint is hereby dismissed pursuant to 42 U.S.C. § 1997e for failure to exhaust administrative remedies.
SO ORDERED.