Mitchell v. IDOC et al

Filing 76

MEMORANDUM DECISION AND ORDER denying as moot 67 Motion to Compel; denying as moot 72 Motion for Summary Judgment; granting 73 Motion to Dismiss. Plaintiff Mitchells Complaint 3 is DISMISSED WITHOUT PREJUDICE. This action is CLOSED.. Signed by Judge Larry M. Boyle. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (krb)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
ROB L. MITCHELL,
Case No. 1:10-cv-00039-LMB
Plaintiff,
MEMORANDUM DECISION AND
ORDER

v.
JOHANNA SMITH, ISCI Warden;
IDAHO DEPARTMENT OF
CORRECTIONS; DR. LOIS ADRIAN;
PHILIP VALDEZ, ICC Warden; DR.
GERRETT
Defendants.

Now pending before the Court are Defendant Johanna Smith’s Motion to Dismiss.
(Dkt. 73). On June 16, 2010, the court entered an Initial Review Order allowing Plaintiff
to proceed with his claims against Defendants Johanna Smith, Lois Adrian, Philip Valdez
and Dr. Gerrett. (Dkt. 8). On August 24, 2011, the Court dismissed Valdez from the
action. (Dkt. 45). Having reviewed the record, and Smith’s motion, the Court issues the
following Order dismissing Plaintiff’s Amended Complaint in its entirety.
Background
Mitchell is an inmate in the custody of the Idaho Department of Correction
(IDOC), alleging that he has suffered from a hernia since approximately 2004. Mitchell
MEMORANDUM DECISION AND ORDER -1-

claims that his symptoms have increased in recent years, but prison officials refuse to
authorize surgery. Mitchell contends that in refusing to authorize hernia surgery, Warden
Smith was deliberately indifferent to his medical needs.
In her motions, Smith argues that Mitchell’s complaint should be dismissed for
several reasons. Smith first argues Mitchell did not property exhaust his administrative
remedies. Alternatively, she asserts that Mitchell’s medical records do not support his
claims that Defendants were deliberately indifferent to his serious medical needs. Finally,
Smith alleges that she is entitled to qualified immunity.
In support of her motion, Smith argues that the ICC medical records reflect that
once Mitchell began complaining about symptoms related to his hernia, ICC medical staff
was attentive and diligent in treating his medical condition. Further, it is undisputed that
the only reason Mitchell was not given a surgical consultation while at ICC, was because
he was transferred out of the facility. Finally, Smith submits that there are no genuine
issues of material fact.
Discussion
A.

Exhaustion of Administrative Remedies
Smith argues that Mitchell failed to exhaust his administrative remedies prior to

filing this lawsuit. Specifically, she claims that Mitchell only submitted a Concern Form
in October 2009. However, Smith alleges that Mitchell failed to complete the

MEMORANDUM DECISION AND ORDER -2-

administrative process beyond that point. Likewise, Smith submits that dismissal is
required because Plaintiff failed to exhaust his administrative remedies.
Pursuant to the Prison Litigation Reform Act of 1995 (PLRA),1 a prisoner is
required to exhaust all of his administrative remedies within the prison system before he
can bring a civil rights lawsuit challenging the conditions of his confinement. 42 U.S.C.
§ 1997e(a). “Proper” exhaustion of administrative remedies is required, meaning that “a
prisoner must complete the administrative review process in accordance with the
applicable procedural rules, including deadlines, as a precondition to bringing suit in
federal court.” Woodford v. Ngo, 548 U.S. 81, 88 (2006). “There is no question that
exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought
in court.” Jones v. Bock, 549 U.S. 199, 211 (2007). The Jones v. Bock Court noted that
the important policy concern behind requiring exhaustion is that it “allows prison officials
an opportunity to resolve disputes concerning the exercise of their responsibilities before
being haled into court.” Id. at 204.
Where there is an “informal[]” and “relative[ly] simpl[e]” prison grievance system,
prisoners must take advantage of it before filing a civil rights complaint. Woodford v.
Ngo, 548 U.S. at 103. In Woodford v. Ngo, the prisoner had filed his grievance within six
months of the incident at issue, rather than within fifteen days as required by the
California Prison grievance system. Id. at 86-87. The Supreme Court rejected the Ninth

1

110 Stat. 1321-71, as amended, 42 U.S.C. § 1997e, et seq.

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Circuit’s determination that the prisoner “had exhausted administrative remedies simply
because no such remedies remained available to him.” Id. at 87.
Failure to exhaust remedies is an affirmative defense that should be brought as an
unenumerated Rule 12(b) motion. Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2002). In
deciding a motion to dismiss for failure to exhaust administrative remedies, a court may
look beyond the pleadings and decide disputed issues of fact. Id. at 1119-20. Defendants
bear the burden of proving failure to exhaust. Brown v. Valoff, 422 F.3d 926 (9th Cir.
2005).
B.

Grievance Process of the Idaho Department of Correction (IDOC)
The IDOC’s grievance process consists of three stages. First, any inmate with a

concern is required to seek an informal resolution by filling out an Offender Concern
Form, addressed to the staff person “most capable of responding” to the inmate’s issue.
(Affidavit of Jill Whittington, Dkt. 73-2, at ¶ 5) (“Whittington Affidavit”). If the issue
cannot be resolved informally through the use of a Concern Form, the inmate must then
file a Grievance Form. (Id. at ¶ 6). The Grievance Form must be submitted within 30
days of the incident giving rise to the grievance. (Id.)
When submitting a Grievance Form, the inmate must attach a copy of the Offender
Concern Form, showing the inmate’s attempt to settle the issue informally. (Id.) Only one
issue may be raised in each grievance. (Id. at ¶ 7). When the grievance involves a
medical issue, the Grievance Form is “routed through medical staff supervised by a

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Health Services Administrator, who is employed by the health care contractor.” (Id. at
¶ 8). The Health Services Administrator is charged with responding to the grievance.
(Id.) If the grievance involves a non-medical issue, the reviewing authority is generally
the warden of the prison. (Id. at ¶ 7).
If the decision on an inmate’s grievance is not satisfactory to the inmate, the
inmate may appeal that decision. (Id. at ¶ 12). Not until the completion of all three of
these steps - Concern Form, Grievance Form, and grievance appeal - is the grievance
process exhausted. (Id. at ¶ 14).
Since November 2007, all grievances are logged and recorded, even those that are
not processed. (Id. at ¶ 18). Grievances are logged into a computer database, which is
searchable by an inmate’s name or IDOC number, or by year. (Id.) According to Affiant
Jill Whittington, Grievance Coordinator for ISCI, there is no record of any grievance
submitted by Plaintiff from 2007 to January 23, 2012. (Id. at ¶ 19).
C.

Plaintiff did not exhaust his administrative remedies.
Along with his Complaint, Mitchell submitted a completed copy of an Offender

Concern Form. The Concern Form is clearly related to this claim. (Exhibit 1 to
Complaint, Dkt. 3-1). Additionally, Plaintiff has submitted the response to his Concern
Form, informing Mitchell that he was “in March 2009, [he was] sent off site for an
evaluation by a surgeon, Dr. Martin...” (Id.)

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However, Plaintiff has not submitted copies of any Grievance Forms or documents
showing that he appealed any grievance decision. In fact, Plaintiff has submitted nothing
in response to Defendants’ Motion to Dismiss. Therefore, there is no evidence that
Plaintiff filed any grievance or grievance appeal. Plaintiff’s only allegation regarding the
grievance process is his statement in his Complaint that he exhausted his administrative
remedies. (Complaint, Dkt. 3 at 8). This general allegation is insufficient to overcome
Defendants’ evidence that Plaintiff did not file a grievance. The Court finds that Plaintiff
did not file a grievance, processed or otherwise, on the issue of his requested hernia
surgery.
Defendants have met their burden of showing that Plaintiff did not exhaust his
administrative remedies. Although Plaintiff may have undertaken the first step of the
grievance process - submitting an Offender Concern Form - he did not proceed past the
first step. He did not file a grievance. Therefore, Plaintiff did not exhaust his
administrative remedies. Accordingly, the Court will dismiss the Complaint without
prejudice.
D.

No Evidence of Deliberate Indifference
Beyond the failure to properly exhaust administrative remedies, Plaintiff’s claims

do not rise to the level of deliberate indifference, which is a required showing to maintain
an Eighth Amendment medical claim.

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Here, Plaintiff alleges that Defendants violated his Eighth Amendment right to
adequate medical care. To state a proper Eighth Amendment claim regarding prison
medical care, a plaintiff must show that prison officials’ “acts or omissions [were]
sufficiently harmful to evidence deliberate indifference to serious medical needs.” Estelle
v. Gamble, 429 U.S. 97, 106 (1976). “Because society does not expect that prisoners will
have unqualified access to health care, deliberate indifference to medical needs amounts
to an Eighth Amendment violation only if those needs are ‘serious.’” Hudson v.
McMillian, 503 U.S. 1, 9 (1992).
The Ninth Circuit has defined a “serious medical need” in the following ways:
failure to treat a prisoner’s condition [that] could result in further significant
injury or the unnecessary and wanton infliction of pain[;] . . . [t]he existence
of an injury that a reasonable doctor or patient would find important and
worthy of comment or treatment; the presence of a medical condition that
significantly affects an individual’s daily activities; or the existence of chronic
and substantial pain.
McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992) (internal quotations omitted),
overruled on other grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133 (9th Cir.
1997) (en banc).
Deliberate indifference exists when an official knows of and disregards a serious
medical condition or when an official is “aware of facts from which the inference could
be drawn that a substantial risk of harm exists,” and actually draws such an inference.
Farmer v. Brennan, 511 U.S. 825, 837 (1994). Deliberate indifference can be
“manifested by prison doctors in their response to the prisoner’s needs or by prison guards
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in intentionally denying or delaying access to medical care or intentionally interfering
with the treatment once prescribed.” Estelle, 429 U.S. at 104-05 (footnotes omitted).
Differences in judgment between an inmate and prison medical personnel
regarding appropriate medical diagnosis and treatment are not enough to establish a
deliberate indifference claim. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). “[T]o
prevail on a claim involving choices between alternative courses of treatment, [Plaintiff]
must show that the chosen course of treatment ‘was medically unacceptable under the
circumstances,’ and was chosen ‘in conscious disregard of an excessive risk’” to
Plaintiff’s health. Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004) (quoting
Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996)).
Mere indifference, medical malpractice, or negligence will not support a cause of
action under the Eighth Amendment. Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th
Cir. 1980). A mere delay in treatment does not constitute a violation of the Eighth
Amendment, unless the delay causes serious harm. Wood v. Housewright, 900 F.2d 1332,
1335 (9th Cir. 1990). If medical personnel have been “consistently responsive to [the
inmate’s] medical needs,” and there has been no showing that the medical personnel had
“subjective knowledge and conscious disregard of a substantial risk of serious injury,”
there is no Eighth Amendment violation. Toguchi, 391 F.3d at 1061.
The Eighth Amendment does not provide a right to a specific treatment. See
Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997) (“[The plaintiff] is not entitled to

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demand specific care. She is not entitled to the best care possible. She is entitled to
reasonable measures to meet a substantial risk of serious harm to her.”). A prison
doctor’s recommendation for a less costly treatment is not deliberate indifference unless
the recommendation “was so inadequate that it demonstrated an absence of professional
judgment, that is, that no minimally competent professional would have so responded
under those circumstances.” Collignon v. Milwaukee County, 163 F.3d 982, 989 (7th Cir.
1998).
There is no constitutional right to an outside medical provider of one’s own choice.
Roberts v. Spalding, 783 F.2d 867, 870 (9th Cir. 1986) (“A prison inmate has no
independent constitutional right to outside medical care additional and supplemental to
the medical care provided by the prison staff within the institution.”). Therefore, Plaintiff
cannot state a claim by demanding to be seen by an outside medical provider.
In order to succeed on his claims, Mitchell must demonstrate either that Smith
personally participated in the decisions regarding Plaintiff’s medical care, or that, as a
supervisor, he or she directed, or knew of and failed to prevent, the actions causing
Plaintiff’s damages or injuries. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).
Vague and conclusory allegations of official participation in civil rights violations are not
sufficient. See Ivey v. Board of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir.
1982); see also Iqbal, 129 S. Ct. at 1949 (“Nor does a complaint suffice if it tenders

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‘naked assertion[s]’ devoid of ‘further factual enhancement.’”) (alteration in original)
(quoting Twombly, 550 U.S. at 557).
Here, there is no dispute regarding the facts of Mitchell’s claims. In fact, Plaintiff
has not even responded to Defendants’ dispositive motions. Further, the Court was
unable to identify any meaningful dispute regarding Mitchell’s factual allegations.
Rather, the Court finds that the facts fail to give rise to a valid or actionable claim of
deliberate indifference. (See Memorandum Decision and Order, Dkt. 45)
In summary, Mitchell was diagnosed with a right inguinal hernia on November 10,
2004. (Id.) On January 24, 2007, the hernia was examined again by ICC medical staff,
and a hernia belt was ordered for treatment. (Id.) Not until December 6, 2007, did
Mitchell present himself for treatment of hernia pain to ICC medical staff. (Id.) In early
January 2008, there was a flurry of activity from Mitchell who sent several requests to be
examined by medical staff. (Id.) On June 3, 2008, Dr. Hrnicek stated that he believed
Mitchell to be an “ideal candidate for surgical repair.” (Id.) However, before Mitchell
could be sent for a surgical consultation, he was transferred out of ICC on June 18, 2008.
(Id.)
ISCI medical staff continued treating Mitchell for his hernia through the rest of
2008. (Id.) Then, at Mitchell’s request, on January 26, 2009, he was seen by ISCI
medical staff and a consultation request was made for hernia surgery. (Id.; see also

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Thacker Affidavit, Dkt. 30-3). After re-evaluating Mitchell, and rescheduling the surgery
consultation, on March 18, 2009, Mitchell was sent to St. Luke’s Hospital for a surgery
consultation, resulting in a recommendation of surgery from Dr. Martin. (Id.) However,
the request for surgery was denied by an IDOC official, noting that it doesn’t appear
“medically necessary.” (Id.)
After managing the hernia and caring for Mitchell for another nine months, on
February 2, 2010, ISCI medical staff made another request for a surgical consultation,
which occured on April 6, 2010. (Id.) On Dr. Henson’s recommendation, on April 27,
2010, ISCI requested surgery for Mitchell’s hernia. (Id.) Thereafter, following standard
follow-up procedures, on June 7, 2010, Mitchell underwent surgery for repair of his
hernia. (Id.) However, Mitchell had complications following his surgery, and on July 15,
2010, ISCI medical staff requested another surgery consultation. (Id.)
Once aware of Mitchell’s medical needs, ICC medical staff undertook reasonable
efforts to care for his medical needs, including a hernia belt, a bottom bunk memo, and
pain medication. (Id.) Mitchell’s allegations of improper delay is properly characterized
as conservative medical care; deliberate and wilful indifference does not exist. (Id.)
Accordingly, dismissal is equally appropriate for Plaintiff’s failure to plead deliberate
indifference sufficiently.
Order
1.

Defendant Smith’s Motion to Dismiss (Dkt. 73) is GRANTED;

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2.

Defendant Smith’s Motion for Summary Judgment (Dkt. 72) is DENIED
AS MOOT;

3.

Defendant Smith’s Motion to Compel (Dkt. 67) is DENIED AS MOOT;

4.

Plaintiff Mitchell’s Complaint (Dkt. 3) is DISMISSED WITHOUT
PREJUDICE; and

5.

This action is CLOSED.

DATED: January 16, 2013.

Honorable Larry M. Boyle
United States Magistrate Judge

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