Edwards v. Peasant (INMATE 2)
REPORT AND RECOMMENDATION of the Magistrate Judge that: 1) Dft's 12 MOTION for Summary Judgment be GRANTED to the extent Dft seeks dismissal of this case due to Plf's failure to properly exhaust available administrative remedies; 2) This case be DISMISSED with prejudice in accordance with the provisions of 42 USC 1997e(a) for Plf's failure to exhaust administrative remedies available to him during his confinement at the Ventress Correctional Facility; Objections to R&R due by 12/23/2008. Signed by Honorable Terry F. Moorer on 12/10/2008. (wcl, )
IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION _____________________________ M IC H A E L LYNN EDWARDS, #249 580 P l a in tif f , v. D R . PEASANT D e f e n d a n t. _____________________________ * * * * * 2:08-CV-564-TMH (WO)
R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE
In this 42 U.S.C. § 1983 action Michael Edwards alleges that he received inadequate medical care and treatment during his incarceration at the Ventress Correctional Facility.1 Plaintiff names Dr. John Peasant as the sole defendant. Plaintiff requests that he be provided with appropriate medical attention.
P u r s u a n t to the orders of this court, Defendant filed an answer, written report, and su p p o rting evidentiary materials addressing the claims for relief raised in the complaint. In th is report, Defendant asserts this case is due to be dismissed because Plaintiff failed to e x h a u st an administrative remedy available to him at the prison as required by the Prison L itig a tio n Reform Act, 42 U.S.C. § 1997e(a). Specifically, Defendant maintains that, with re sp e c t to the claims presented in the instant complaint, Plaintiff failed to exhaust the a d m in is tra tiv e remedies available to him at the Ventress Correctional Facility via the medical
1 During the pendency of this action Plaintiff was released from custody.
d e p a rtm e n t's grievance process as he failed to file a grievance and/or an appeal of any g rie v a n c e about the allegations made the basis of his complaint. (Doc. No. 12, Peasant A f f id a v i t.)
I. STANDARD OF REVIEW
"S u m m a ry judgment is appropriate 'if the pleadings, depositions, answers to in te rro g a to rie s, and admissions on file, together with the affidavits, if any, show there is no g e n u i n e issue as to any material fact and that the moving party is entitled to judgment as a m a tte r of law.'" Greenberg v. BellSouth Telecomm., Inc., 498 F.3d 1258, 1263 (11 th Cir. 2 0 0 7 ) (per curiam) (citation omitted); Fed.R.Civ.P. Rule 56(c) (Summary judgment "should b e rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits sh o w that there is no genuine issue as to any material fact and that the movant is entitled to ju d g m e n t as a matter of law.").2 The party moving for summary judgment "always bears the in itia l responsibility of informing the district court of the basis for its motion, and identifying th o s e portions of the [record, including pleadings, discovery materials and affidavits], which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. C a tre tt, 477 U.S. 317, 323 (1986). The movant may meet this burden by presenting evidence w h ic h would be admissible at trial indicating there is no dispute of material fact or by
Effective December 1, 2007, "[t]he language of Rule 56 [was] amended ... to make the rule more ea sily understood and to make style and terminology consistent throughout the rules. These changes ... are stylistic only." Fed.R.Civ.P. 56 Advisory Committee Notes. Thus, although Rule 56 underwent stylistic ch an g es, its substance remains the same and, therefore, all cases citing the prior rule remain equally applicable to the current rule.
s h o w in g that the nonmoving party has failed to present evidence in support of some element o f its case on which it bears the ultimate burden of proof. Id. at 322-324. Defendant has met his evidentiary burden and demonstrated the absence of a genuine is s u e of material fact with respect to Plaintiff's failure to exhaust administrative remedies. T h u s , the burden shifts to Plaintiff to establish, with appropriate evidence beyond the p le a d in g s , that a genuine issue material to his case exists. Clark v. Coats and Clark, Inc., 929 F .2 d 604, 608 (11 th Cir. 1991); Celotex, 477 U.S. at 324; Fed.R.Civ.P. 56(e)(2) ("When a m o tio n for summary judgment is properly made and supported, an opposing party may not re ly merely on allegations or denials in its own pleading; rather, its response must ... set out sp e c if ic facts showing a genuine issue for trial."). A genuine issue of material fact exists w h e n the nonmoving party produces evidence that would allow a reasonable fact-finder to re tu rn a verdict in its favor. Greenberg, 498 F.3d at 1263. To survive Defendant's properly supported motion for summary judgment, Plaintiff is required to produce "sufficient [favorable] evidence" establishing proper exhaustion of a d m in is tra tiv e remedies. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). "If the e v id e n c e [on which the nonmoving party relies] is merely colorable ... or is not significantly p r o b a t iv e ... summary judgment may be granted." Id. at 249-250. "A mere 'scintilla' of e v id e n c e supporting the opposing party's position will not suffice; there must be enough of a showing that the [trier of fact] could reasonably find for that party. Anderson v. Liberty L o b b y , 477 U.S. 242, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986)." Walker v. Darby, 911
F .2 d 1573, 1576-1577 (11 th Cir. 1990). Conclusory allegations based on subjective beliefs a re likewise insufficient to create a genuine issue of material fact and, therefore, do not s u f f ic e to oppose a motion for summary judgment. Waddell v. Valley Forge Dental A s s o c ia te s, Inc., 276 F.3d 1275, 1279 (11 th Cir. 2001); Holifield v. Reno, 115 F.3d 1555, 1 5 6 4 n.6 (11 th Cir. 1997) (plaintiff's "conclusory assertions ..., in the absence of [admissible] su p p o rtin g evidence, are insufficient to withstand summary judgment."); Harris v. Ostrout, 6 5 F.3d 912, 916 (11 th Cir. 1995) (grant of summary judgment appropriate where inmate p ro d u c e s nothing beyond "his own conclusory allegations...."); Fullman v. Graddick, 739 F .2 d 553, 557 (11 th Cir. 1984) ("mere verification of party's own conclusory allegations is not s u f f i c i e n t to oppose summary judgment...."). Hence, when a plaintiff fails to set forth s p e c if ic facts supported by appropriate evidence sufficient to establish the existence of an e lem e n t essential to his case and on which the plaintiff will bear the burden of proof at trial, s u m m a ry judgment is due to be granted in favor of the moving party. Celotex, 477 U.S. at 3 2 2 ("[F]ailure of proof concerning an essential element of the nonmoving party's case n e c e ss a rily renders all other facts immaterial."); Barnes v. Southwest Forest Industries, Inc., 8 1 4 F.2d 607, 609 (11 th Cir. 1987) (if on any part of the prima facie case the plaintiff presents in s u f f ic ie n t evidence to require submission of the case to the trier of fact, granting of su m m ary judgment is appropriate). F o r summary judgment purposes, only disputes involving material facts are relevant. U n ited States v. One Piece of Real Property Located at 5800 SW 74 th Avenue, Miami,
F lo r id a , 363 F.3d 1099, 1101 (11 th Cir. 2004). What is material is determined by the s u b s ta n tiv e law applicable to the case. Anderson, 477 U.S. at 248; Lofton v. Secretary of the D e p a rtm e n t of Children and Family Services, 358 F.3d 804, 809 (11 th Cir. 2004) ("Only f a ctu a l disputes that are material under the substantive law governing the case will preclude e n try of summary judgment."). "The mere existence of some factual dispute will not defeat s u m m a ry judgment unless that factual dispute is material to an issue affecting the outcome o f the case." McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11 th Cir. 2003) (c ita tio n omitted). To demonstrate a genuine issue of material fact, the party opposing s u m m a ry judgment "must do more than simply show that there is some metaphysical doubt a s to the material facts.... Where the record taken as a whole could not lead a rational trier o f fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita Elec. I n d u s . Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In cases where the evidence b ef o re the court which is admissible on its face or which can be reduced to admissible form in d ic a te s that there is no genuine issue of material fact and that the party moving for s u m m a ry judgment is entitled to it as a matter of law, summary judgment is proper. Celotex, 4 7 7 U.S. at 323-324 (summary judgment appropriate where pleadings, evidentiary materials an d affidavits before the court show there is no genuine issue as to a requisite material fact); W a d d e ll, 276 F.3d at 1279 (to establish a genuine issue of material fact, the nonmoving party m u st produce evidence such that a reasonable trier of fact could return a verdict in his favor). A lth o u g h factual inferences must be viewed in a light most favorable to the
n o n m o v in g party and pro se complaints are entitled to liberal interpretation by the courts, a p r o se litigant does not escape the burden of establishing by sufficient evidence a genuine is s u e of material fact. Beard v. Banks, 548 U.S. 521, ___, 126 S.Ct. 2572, 2576, 165 L.Ed.2d 6 9 7 (2006); Brown v. Crawford, 906 F.2d 667, 670 (11 th Cir. 1990). Thus, Plaintiff's pro se s ta tu s alone does not mandate this court's disregard of elementary principles of production a n d proof in a civil case. In this case, Plaintiff fails to demonstrate a requisite genuine issue o f material fact in order to preclude summary judgment. Matsushita, 475 U.S. at 587.
II. DISCUSSION Plaintiff challenges the medical care and treatment he received during his incarceration a the Ventress Correctional Facility for keloids on the back of his scalp.3 In response to the complaint, Defendant argues this case should be dismissed because Plaintiff failed to properly exhaust his administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a).
The PLRA requires exhaustion of available administrative remedies before a prisoner c a n seek relief in federal court on a 42 U.S.C. § 1983 complaint. Specifically, 42 U.S.C. § 1 9 9 7 e (a ) directs that "[n]o action shall be brought with respect to prison conditions under s e c tio n 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, o r other correctional facility until such administrative remedies as are available are
A keloid is a type of hypertrophic scar which results from a tissue overgrowth at the site of a prior skin injury. (Doc. No. 12, Peasant Affidavit at 2.)
e x h a u ste d ." "Congress has provided in § 1997(e)(a) that an inmate must exhaust irrespective o f the forms of relief sought and offered through administrative remedies." Booth v. C h u r n e r, 532 U.S. 731, 741 n.6 (2001). "[T]he PLRA's exhaustion requirement applies to a ll inmate suits about prison life, whether they involve general circumstances or particular e p is o d e s, and whether they allege excessive force or some other wrong." Porter v. Nussle, 5 3 4 U.S. 516, 532 (2002). Exhaustion of all available administrative remedies is a
p re c o n d itio n to litigation and a federal court cannot waive the exhaustion requirement. B o o th , 532 U.S. at 741; Alexander v. Hawk, 159 F.3d 1321, 1325 (11 th Cir. 1998); Woodford v . Ngo, 548 U.S. 81, 126 S.Ct. 2378 (2006). Moreover, "the PLRA exhaustion requirement r e q u ir e s proper exhaustion." Id. at 2387 (emphasis added). The Supreme Court in Woodford determined "[proper exhaustion] means . . . that a p riso n e r must complete the administrative review process in accordance with the applicable p ro c e d u ra l rules, including deadlines, as a precondition to bringing suit in federal court." 1 2 6 S.Ct. at 2384. The Court further explained "[p]roper exhaustion demands compliance w ith an agency's deadlines and other critical procedural rules [prior to seeking relief from a federal court] because no adjudicative system can function effectively without imposing so m e orderly structure on the courts of its proceedings . . . Construing § 1997e(a) to require p ro p e r exhaustion . . . fits with the general scheme of the PLRA, whereas [a contrary] in te rp re ta tio n [allowing an inmate to bring suit in federal court once administrative remedies a re no longer available] would turn that provision into a largely useless appendage." Id. at
2 3 8 6 . This interpretation of the PLRA's exhaustion requirement "carries a sanction" for n o n c o m p lia n c e and avoids "mak[ing] the PLRA exhaustion scheme wholly ineffective." Id. a t 2388. Consequently, a prisoner cannot "proceed . . . to federal court" after bypassing a v a ila b le administrative remedies, either by failing to properly exhaust administrative re m e d ie s or waiting until such remedies are no longer available, as allowing federal review u n d e r these circumstances would impose "no significant sanction" on the prisoner and "the P L R A did not create such a toothless scheme." Id. Further, the PLRA's exhaustion
re q u ire m e n t contains no futility exception where there is an available inmate grievance p ro c e d u re . See Booth, 532 U.S. at 741 n. 6 ( "[W]e will not read futility or other exceptions in to statutory exhaustion requirements where Congress has provided otherwise." ); Cox v. M a y e r , 332 F.3d 422, 424-28 (6 th Cir. 2003) (holding that the exhaustion requirement applies to a former prisoner who filed his complaint without exhausting his administrative remedies a n d who had since been released from custody); see also Massey v. Helman, 196 F.3d 727, 7 3 3 (7 th Cir. 1999).
The record in this case establishes that the health care provider for the Alabama Department of Corrections provides a grievance procedure for inmate complaints related to medical treatment. The evidentiary materials submitted by Defendant demonstrates that Plaintiff failed to file any grievance with respect to the actions about which he complains in the instant complaint. Plaintiff does not dispute his failure to exhaust the administrative remedy available in the prison system prior to filing this case. The court, therefore,
concludes that the claims presented in this cause of action are subject to dismissal as Plaintiff failed to properly exhaust administrative remedies available to him which is a precondition to proceeding in this court on his claims. Woodford, 548 U.S. at 87-94, 126 S.Ct. at 2384-2388. As noted, Plaintiff obtained his release from the Alabama prison system during the pendency of this action. Thus, the administrative remedy provided by Defendant is no longer available to Plaintiff. Under such circumstances, dismissal with prejudice is appropriate. Bryant v. Rich, 530 F.3d 1368, 1375 n.1 (11 th Cir. 2008); Johnson v. Meadows, 418 F.3d 1152, 1157 (11th Cir. 2005); Marsh v. Jones, 53 F.3d 707, 710 (5th Cir. 1995) ("Without the prospect of a dismissal with prejudice, a prisoner could evade the exhaustion requirement by filing no administrative grievance or by intentionally filing an untimely one, thereby foreclosing administrative remedies and gaining access to a federal forum without exhausting administrative remedies."); Berry v. Keirk, 366 F.3d 85, 88 (2nd Cir. 2004) (footnotes omitted) (Inmate's "federal lawsuits ... properly dismissed with prejudice" where previously available administrative remedies had become unavailable and no special circumstances justified the failure to exhaust.). III. CONCLUSION Accordingly, it is the RECOMMENDATION of the Magistrate Judge that: 1. Defendant's motion for summary judgment (Doc. No. 12) be GRANTED to the extent Defendant seeks dismissal of this case due to Plaintiff's failure to properly exhaust
available administrative remedies. 2. This case be DISMISSED with prejudice in accordance with the provisions of 42 U.S.C. § 1997e(a) for Plaintiff's failure to exhaust administrative remedies available to him during his confinement at the Ventress Correctional Facility. It is further ORDERED that on or before December 23, 2008 the parties may file objections to the Recommendation. Any objections filed must specifically identify the findings in the Magistrate Judge's Recommendation to which a party objects. Frivolous, conclusive or general objections will not be considered by the District Court. The parties are advised that this Recommendation is not a final order of the court and, therefore, it is not appealable. Failure to file written objections to the proposed findings and advisements in the Magistrate Judge's Recommendation shall bar the party from a de novo determination by the District Court of issues covered in the Recommendation and shall bar the party from attacking on appeal factual findings in the Recommendation accepted or adopted by the District Court except upon grounds of plain error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981, en banc), adopting as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981.
D o n e , this 10 th day of December 2008. /s /T e r r y F. Moorer TERRY F. MOORER U N IT E D STATES MAGISTRATE JUDGE
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