Gaffney v. Department of Corrections et al
Filing
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ORDER granting 23 Motion to Dismiss (construed as mot for summary judgment); clk to enter judg for defs on clms against them; remaining clms dism as plf hasn't identified a def. Signed by Judge John W. Sedwick on 8/22/12. (PRR, COURT STAFF)
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UNITED STATES DISTRICT COURT
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DISTRICT OF ALASKA
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BRENT H. GAFFNEY,
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Plaintiff,
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vs.
DR. HENRY LUBAN et al.,
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Defendants.
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3:11-cv-00216 JWS
ORDER AND OPINION
[Re: Motion at docket 23]
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I. MOTION PRESENTED
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At docket 23, defendants Henry Luban (“Luban”), Bruce Busby (“Busby”), and
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Iris Beach (“Beach”) move pursuant to Federal Rule of Civil Procedure 12(b)(6) to
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dismiss the complaint for failure to state a claim. Because the motion is supported by
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affidavits and other materials outside the pleadings, the court must treat the motion “as
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one for summary judgment under Rule 56.”1 Plaintiff Brent H. Gaffney, who was
incarcerated, was granted approximately three additional months to respond.2 At
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Fed. R. Civ. P. 12(d).
Doc. 35.
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docket 48, plaintiff filed a motion to allow the case to proceed which the court construes
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as a response to defendants’ motion for summary judgment. Defendants filed a
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response to plaintiff’s motion, which the court construes as a reply in support of their
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motion for summary judgment, at docket 51. Oral argument was not requested and
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would not assist the court.
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II. BACKGROUND
Plaintiff was incarcerated at the Lemon Creek Correctional Center from May 7,
2011 through May 13, 2011. During that time, plaintiff alleges that he was denied
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medical treatment and medication. Plaintiff also alleges the Lemon Creek Correctional
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Center does not make accommodations for disabled persons.
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Plaintiff was incarcerated at the Anchorage Correctional Complex from May 13,
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2011 through September 21, 2011. Plaintiff maintains that during that period he was
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denied medication for a back injury, post-traumatic stress disorder, traumatic brain
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injuries, disassociation disorder, depression, and insomnia.
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Plaintiff filed suit against Luban, a doctor at the Anchorage Correctional
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Complex, Busby, the assistant superintendent at the Lemon Creek Correctional Center,
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and Beach, a nurse at the Lemon Creek Correctional Center. Plaintiff has asserted four
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claims. Two are asserted pursuant to 42 U.S.C. § 1983, based on alleged violations of
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the Eighth Amendment stemming from the denial of medical care discussed above.
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III. STANDARD OF REVIEW
Summary judgment is appropriate where “there is no genuine dispute as to any
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material fact and the movant is entitled to judgment as a matter of law.”3 The
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materiality requirement ensures that “only disputes over facts that might affect the
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outcome of the suit under the governing law will properly preclude the entry of summary
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Fed. R. Civ. P. 56(a).
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judgment.”4 Ultimately, “summary judgment will not lie if the . . . evidence is such that a
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reasonable jury could return a verdict for the nonmoving party.”5 In resolving a motion
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for summary judgment, a court must view the evidence in the light most favorable to the
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non-moving party.6 The reviewing court may not weigh evidence or assess the
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credibility of witnesses.7 The burden of persuasion is on the moving party.8
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IV. DISCUSSION
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The Prison Litigation Reform Act of 1995 (“PLRA”) contains an exhaustion
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provision which states that “[n]o action shall be brought with respect to prison conditions
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under section 1983 . . . or any other Federal law, by a prisoner . . . until such
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administrative remedies as are available are exhausted.”9 Under that provision, a
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prisoner must “exhaust any available [administrative remedies] . . . even where the
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relief sought–monetary damages–cannot be granted by the administrative process.”10
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Defendants argue that plaintiff has failed to exhaust his administrative remedies.
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Defendants note that plaintiff did not file any grievances while incarcerated at Lemon
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Creek Correctional Center and only one grievance while incarcerated at the Anchorage
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Correctional Complex. Although plaintiff’s grievance was based on a refusal to
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prescribe him Clonazepam and Ambien to treat his traumatic brain injuries and
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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
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Id.
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Lopez v. Smith, 203 F.3d 1122 (9th Cir. 2000).
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Dominguez-Curry v. Nevada Transp. Dept., 424 F.3d 1027, 1036 (9th Cir. 2005).
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Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
42 U.S.C. § 1997e(a).
Woodford v. Ngo, 548 U.S. 81, 85 (2006) (internal quotation omitted).
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insomnia,11 the grievance did not involve treatment by Luban, but rather by a
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psychiatrist, Dwight Stallman (“Stallman”).
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Plaintiff responds that he did adequately exhaust available administrative
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remedies, but that he is unable to produce documentation. Plaintiff maintains that there
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are several witnesses who would testify that they helped him with his grievances, but he
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is unable to identify or contact them. Plaintiff produced what purports to be an affidavit
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from another prisoner at the Anchorage Correctional Complex, Michael Everett. In it,
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Everett states that he helped plaintiff with four grievances. The affidavit, though signed,
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was not notarized and is composed in the same typeface and with all capital letters
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similar to most of plaintiff’s filings. Plaintiff also maintains that he requested that his
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grievances be logged.
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Defendants have presented the affidavit of Debbie Miller, superintendent of the
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Anchorage Correctional Complex, who states that there is no record of plaintiff
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requesting that his grievances be logged.12 Defendants have also produced the
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affidavit of Sergeant Suluia Augafa (“Augafa”), a compliance sergeant at the Anchorage
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Correctional Complex. Augafa states that plaintiff submitted numerous medical
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grievances during his most recent period of incarceration, which was from March 2012
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until July 2012.13 He states that none of them pertained to Luban, Busby, or Beach.
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Most importantly, Augafa states that the only medical grievance that plaintiff filed in
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2011 was the grievance pertaining to Stallman.14 Defendants have produced the
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See doc. 23-1 at 1.
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Doc. 51-1 at 2.
Doc. 51-2 at 1–2.
Doc. 24 at 2.
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affidavit of Robert Corcoran which states that plaintiff did not file any grievances while
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at the Lemon Creek Correctional Center.15
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Based on the evidence before the court, no reasonable jury could conclude that
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plaintiff filed a grievance pertaining to the defendants to this action. As defendants
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point out, even if the grievance regarding Stallman’s treatment of plaintiff were
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sufficient, Stallman and Luban’s difference in medical opinion is insufficient to establish
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deliberate indifference.16 Because plaintiff failed to exhaust the administrative remedies
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available to him, defendants are entitled to summary judgment on the claims against
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them.
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V. CONCLUSION
For the reasons above, defendants motion at docket 23, construed as a motion
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for summary judgment pursuant to Federal Rule of Civil Procedure 56 is GRANTED.
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The Clerk shall please enter judgment for defendants on the claims against them.
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Because plaintiff has not identified a defendant as to his remaining claims, those claims
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are DISMISSED.
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DATED this 22nd day of August 2012.
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/s/
JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE
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Doc. 25 at 1–2.
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Toguchi v. Chung, 391 F.3d 1051, 1059–60 (9th Cir. 2004) (citing Jackson v.
McIntosh, 90 F.3d 330, 332 (9th Cir. 1996).
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