Bishop v. Arkansas, State of et al

Filing 31

ORDER granting 21 Motion for Summary Judgment and dismissing plaintiff's claims without prejudice. Signed by Magistrate Judge Beth Deere on 11/18/10. (bkp)

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Bishop v. Arkansas, State of et al Doc. 31 IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS P I N E BLUFF DIVISION C H R I S T O P H E R LEE BISHOP V. No. 5:10CV00190 BD DEFENDANTS ORDER I. B ackground: P la in tif f filed this 1983 lawsuit pro se alleging that in October 2009, while he w a s incarcerated at the Arkansas Department of Correction ("ADC"), he broke his thumb. He claims that this injury went untreated until March 2010, and that as a result of the d e la y in treatment, his thumb does not function properly. D e f e n d a n ts have filed a motion for summary judgment arguing that Plaintiff's c la im s should be dismissed because he failed to exhaust his claims under the Prison L itig a tio n Reform Act ("PLRA") prior to filing the lawsuit. (Docket entry #21) Plaintiff h a s not responded to the Defendants' motion, and the time for doing so has expired (#24). T h e Defendants' motion (#21) should be GRANTED. II. A n a ly sis : A. S u m m a ry Judgment Standard P L A IN T IF F S T A T E OF ARKANSAS, et al. S u m m a ry judgment is appropriate when the evidence, viewed in the light most f a v o ra b le to the nonmoving party, presents no genuine issue of material fact. FED. R. C IV. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 246 (1986). Once the moving party has successfully carried its b u rd e n under Rule 56(c), the nonmoving party has an affirmative burden to go beyond the p le a d in g s and by depositions, affidavits, or otherwise, designate "specific facts showing th a t there is a genuine issue for trial." FED. R. CIV. P. 56(e); Mosley v. City of N o r th w o o d s , 415 F.3d 908, 910-11 (8th Cir. 2005) ("The nonmoving party may not `rest o n mere allegations or denials, but must demonstrate on the record the existence of s p e c if ic facts which create a genuine issue for trial.'" (quoting Krenik v. County of Le S u e u r , 47 F.3d 953, 957 (8th Cir. 1995))). If the opposing party fails to carry that burden o r fails to establish the existence of an essential element of its case on which that party w ill bear the burden of proof at trial, summary judgment should be granted. See Celotex, 4 7 7 U.S. at 322. "Although it is to be construed liberally, a pro se complaint must c o n ta in specific facts supporting its conclusions." Martin v. Sargent, 780 F.2d 1334, 1 3 3 7 (8th Cir. 1985). B. E x h a u s tio n T h e PLRA requires that prisoners exhaust all "available" remedies before filing s u it under 42 U.S.C. 1983. See 42 U.S.C. 1997e(a); Booth v. Churner, 532 U.S. 731, 7 3 8 , 121 S.Ct. 1819 (2001) (holding that available remedies "must be exhausted before a c o m p la in t under 1983 may be entertained"). The United States Court of Appeals for the E ig h th Circuit has defined "available" as "capable of use for the accomplishment of a p u rp o s e ; immediately utilizable [and] accessible." Miller v. Norris, 247 F.3d 736, 740 2 (8th Cir. 2001). It does not matter whether a prisoner subjectively believes that there was n o point in pursuing his administrative remedies. Lyon v. Vande Krol, 305 F.3d 806, 8 0 8 -0 9 (8th Cir. 2002); Chelette v. Harris, 229 F.3d 684, 688 (8th Cir. 2000), cert. denied 5 3 1 U.S. 1156 (2001). If exhaustion is not complete by the time the prisoner's complaint is filed, the case m u s t be dismissed. Johnson v. Jones, 340 F.3d 624, 627 (8th Cir. 2003). Prisoners are e x c u s e d from completing administrative procedures only when correctional officials have p re v e n te d prisoners from using the procedures or when the officials themselves have f a ile d to comply with administrative procedures. Miller v. Norris, supra at 740; Foulk v. C h a r rie r , 262 F.3d 687, 697-98 (8th Cir. 2001). H e re , the undisputed evidence shows that Plaintiff filed only one grievance in the tim e period relevant to this lawsuit, VSM-10-593. (#23-1 at p.1) Plaintiff did not appeal th a t grievance. (#232-1 at p.1) Under the ADC grievance procedure, in order to fully e x h a u s t a medical grievance, an inmate must appeal the medical response to the Deputy D ire c to r of Health and Correction Programs. (#23 at pp.1-2) Plaintiff did not do so. (#23-1 at p.1) P la in tif f has failed to present any evidence that he fully exhausted his a d m in is tra tiv e remedies regarding the claims at issue in this lawsuit or that the D e f e n d a n ts prevented him from pursing his administrative remedies. As a result, 3 Plaintiff has failed to create a material question of fact on this issue and Defendants are e n title d to judgment as a matter of law. III. C o n c lu s io n : T h e Defendants' motion for summary judgment (#21) is GRANTED. Plaintiff's c la im s are DISMISSED without prejudice. IT IS SO ORDERED this 18th day of November, 2010. ___________________________________ U N IT E D STATES MAGISTRATE JUDGE 4

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