Storm v. Correctional Medical Services P.A.'s A-Z et al
Filing
37
MEMORANDUM DECISION AND ORDER granting 16 Motion to Produce; denying 18 Motion to Appoint Counsel; granting in part and denying in part 20 Motion for Service and Motion for Sanctions; finding as moot 21 Motion to Compel; denying 24 Motion f or Default Judgment; granting 25 Motion to Dismiss; granting 30 Motion for Extension of Time to File Response/Reply. The Clerk of Court shall send another Waiver of Service of Summons to Defendant Shahan in care of John J Burke. If Shahan, or his attorney, do not return the waiver within 30 days, the Clerk of Court is instructed to provide a Summons and the Complain to the US Marshal Service for personal service on him. Plaintiff may proceed with his Eighth Amendment claims and his medical malpractice claims against CMS and Shahan as they relate to physical therapy. All other claims and all other Defendants are DISMISSED. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by cjm)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
RICKIE STORM,
Case No. 1:10-cv-00319-BLW
Plaintiff,
MEMORANDUM DECISION AND
ORDER
v.
IDAHO DEPARTMENT OF
CORRECTION; BRENT REINKE;
CORRECTIONAL MEDICAL
SERVICES; PHYSICIAN’S
ASSISTANTS A-Z; DOCTORS A-Z;
JEFF SHAHAN; IDAHO STATE
CORRECTIONAL INSTITUTION;
MEDICAL STAFF,
Defendants.
Pending before the Court is a partial Motion to Dismiss (Dkt. 25) filed by
Defendant Correctional Medical Services. Also pending are the following motions filed
by Plaintiff: (1) Motion for Production of Documents (Dkt. 16); (2) Motion for
Appointment of Counsel (Dkt. 18); (3) Motion for Formal Service (Dkt. 20); (4) Motion
to Compel (Dkt. 21); (5) Motion for Default Judgment (Dkt. 24); and (6) Motion for
Extension of Time to Respond. (Dkt. 30).
Having fully reviewed the record, the Court finds that the facts and legal
arguments are adequately presented in the briefs and record. Accordingly, in the interest
MEMORANDUM DECISION AND ORDER -1-
of avoiding further delay, and because the Court finds the decisional process would not be
significantly aided by oral argument, this matter shall be decided on the record before this
Court. See D. Idaho Local Rule 7.1(b). The Court concludes that, except for his claims
relating to physical therapy, Plaintiff did not exhaust his administrative remedies and the
Court will dismiss those claims not relating to physical therapy.
PROCEDURAL BACKGROUND
Plaintiff is a prisoner in the custody of the Idaho Department of Correction
(IDOC), currently incarcerated at Idaho State Correctional Institution (ISCI). Plaintiff
suffers from arthritis in his lower back, bone spurs on the left side of his neck, and leg and
back pain from a pinched sciatic nerve. See Compl., Dkt. 3-1 at 3–5. Plaintiff filed this
civil rights suit under 42 U.S.C. § 1983 against the CMS Defendants. He alleged that he
received inadequate medical care in violation of the Eighth Amendment’s prohibition
against cruel and unusual punishment and state law negligence. Initial Review Order at
2-4, Dkt. 7. In the Initial Review Order, Magistrate Judge Boyle allowed Plaintiff to
proceed with his Eighth Amendment claims against Defendants Correctional Medical
Services and Jeff Shahan, a Health Services Administrator.
On April 15, 2011, Defendants moved to dismiss all of Plaintiff’s claims except for
those relating to physical therapy for his back – arguing that Plaintiff has failed to exhaust
his administrative remedies. See Motion to Dismiss, Dkt. 25. On May 10, 2011, Plaintiff
filed a Motion for Extension of Time to File Response (Dkt. 30), and on May 20, 2011,
filed his response. See Response, Dkt. 31. On June 3, 2011, Defendants filed their reply
MEMORANDUM DECISION AND ORDER -2-
in support of their Motion to Dismiss. See Reply, Dkt. 34. On August 2, 2011, Plaintiff
filed a Sur-Reply (Supplemental Response, Dkt. 35), to which Defendants objected (Reply
to Supplemental Response, Dkt. 36). All motions are now ripe for adjudication.
PLAINTIFF’S MOTION FOR EXTENSION OF TIME
AND SUR-REPLY
Plaintiff’s Motion for an Extension of Time (Dkt. 30) will be granted, and his
Supplemental Response (Dkt. 35) will be considered in deciding this motion. Because
Plaintiff is proceeding pro se, the Court will not deny him the opportunity to fully present
his evidence and arguments, despite the fact that he has failed to comply with the Court’s
procedural rules. The Court will therefore consider all of Plaintiff’s submissions in ruling
on the pending motions.
MOTION FOR SUMMARY JUDGMENT
Summary judgment is appropriate if a party shows “that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). The moving party may support its position by “citing to particular
parts of materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations (including those made for purposes of
the motion only), admissions, interrogatory answers, or other materials.” Fed. R. Civ. P.
56(c)(1)(A).
1.
Exhaustion Requirements
MEMORANDUM DECISION AND ORDER -3-
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 Court explained the
important policy concern behind the exhaustion requirement: “allow[ing] prison officials
an opportunity to resolve disputes concerning the exercise of their responsibilities before
being haled into court.” Id. at 204.
Idaho law also requires that a prisoner exhaust his administrative remedies before
filing a civil lawsuit related to the conditions of his confinement. Section 19-4206(1) of
the Idaho Code provides that “[u]nless a petitioner who is a prisoner establishes to the
satisfaction of the court that he is in imminent danger of serious physical injury, no . . .
civil action shall be brought by [the prisoner] . . . with respect to conditions of
confinement until all available administrative remedies have been exhausted.” This
exhaustion requirement applies to claims regarding prison medical care. See Drennon v.
1
110 Stat. 1321-71, as amended, 42 U.S.C. § 1997e, et seq.
MEMORANDUM DECISION AND ORDER -4-
Idaho State Corr. Inst., 181 P.3d 524, 526, 530 (Idaho Ct. App. 2007) (affirming
dismissal for failure to exhaust claims regarding, among other things, the prisoner’s
medical treatment). Like the exhaustion requirement in the PLRA, section 19-4206
requires that the prisoner meet procedural deadlines to properly exhaust his administrative
remedies. Butters v. Valdez, 241 P.3d 7, 12 (Idaho Ct. App. 2010) (relying on federal law
interpreting 42 U.S.C. § 1997e(a)).
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, 1119 (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;
see also Ritza v. Int’l Longshoremen’s and Warehousemen’s Union, 837 F.2d 365, 369
(9th Cir. 1988) (“No presumptive truthfulness attaches to plaintiff’s allegations, and the
existence of disputed material facts will not preclude the trial court from evaluating for
itself the merits of jurisdictional claims”) (internal quotation marks and alteration
omitted)). The defendant bears the burden of proving failure to exhaust. Brown v. Valoff,
422 F.3d 926, 936 (9th Cir. 2005).
If a plaintiff has failed to exhaust his administrative remedies, his claims are
subject to dismissal without prejudice. See Wyatt, 315 F.3d at 1120. An inmate must
exhaust his remedies prior to filing suit; exhaustion cannot be accomplished during a suit
or after a suit has been filed. See McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir.
2002) (per curiam) (suit dismissed without prejudice where prisoner attempted to exhaust
MEMORANDUM DECISION AND ORDER -5-
administrative remedies during pendency of suit).
2.
Grievance Process of the 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 directly involved” with the inmate’s issue.
Affidavit of Jill Whittington ¶4–5, Dkt. 25-2. If the issue cannot be resolved informally
through the use of a Concern Form, the inmate must then file a Grievance Form. Id. ¶6.
The Grievance Form has to 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 Concern
Form, showing the inmate’s attempt to settle the issue informally. Only one issue may be
raised in each grievance. Id. at ¶7. Where, as here, the grievance involves a medical
issue, the Grievance Form is “routed through medical staff supervised by the Health
Services Administrator, who is employed by the Health Care Contractor.” Id. ¶8. The
Health Services Administrator is charged with responding to the grievance. Id.
If the decision on an inmate’s grievance is not satisfactory to the inmate, he or she
may appeal that decision. The grievance policy requires that the inmate file an appeal
within 5 days of receiving the response to the grievance. Id. ¶9. In cases of medical
grievances, the appellate authority is the Regional Manager or Vice President of the
medical contractor. Id. ¶10. Not until the completion of all three of these
steps—Concern Form, Grievance Form, and grievance appeal—is the grievance system
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exhausted. Id. ¶11.
Prior to November 2007, the IDOC did not keep records of grievances submitted
by inmates if those grievances were not processed for some reason. Since November
2007, all grievances are logged and recorded, even those that are not processed. Id. ¶13.
Grievances are logged into a computer database, which is searchable by an inmate’s name
or IDOC number, by grievance number, or by year. Id.
3.
Findings Regarding Plaintiff’s Use of the Grievance Process
Jill Whittington is the current Grievance Coordination and custodian of grievances
and grievance logs at ISCI. Whittington Aff. ¶ 12. In this role, she searched the grievance
database for any grievances filed by Plaintiff and located seven grievances filed by
Plaintiff during the time in question. Id. ¶14. According to the exhibits attached to the
Whittington Affidavit, on April 24, 2009, Plaintiff attempted to file a grievance regarding
the treatment of his back in relation to his cyatic nerve. Ex. D to Whittington Aff., Dkt.
25-2 at 49. This grievance was returned to Plaintiff “without action being taken” because
Plaintiff did not submit copies of any concern forms showing his attempts to resolve the
issue informally. Id. The same result came of another grievance filed on June 24, 2010,
also for Plaintiff’s failure to include concern forms. Id. Plaintiff also had improperly
filed grievances returned to him without action on July 23, 2009, and January 12, 2010.
Id. Neither of these grievances are considered fully grieved or properly exhausted. On
January 22, 2010, one of Plaintiff’s grievances was granted at the reviewing authority
level. Id. Plaintiff failed to timely appeal this granting of the grievance, making it not
MEMORANDUM DECISION AND ORDER -7-
fully grieved or exhausted. Id. However, on June 11 and 12 of 2009, Plaintiff filed two
medical grievances that were eventually fully and properly exhausted. Id. at 49.
The grievances were logged as Grievance Numbers II 090000837, and II
090000841. Id. at 49. Regarding the former, the Director of Nursing told Plaintiff on
June 25, 2009, that his care was appropriate because he had “x rays done as ordered ...
and then [was] seen by Dr. Adrian on 6/19/09 and NP Foss on 6/24.” Id. The Health
Services Administrator concurred with the Director’s response and denied Plaintiff’s
grievance on July 6, 2009, noting that Plaintiff will be scheduled for physical therapy. Id.
at 52. Plaintiff appealed on July 10, 2009, arguing that he still had not been seen by a
physical therapist. Id. at 53. The appeal was denied on August 11, 2009. Id. The final
denial of Plaintiff’s grievance failed to address his request for physical therapy, noting
only that they “reviewed your grievance and concur with [the Health Services
Administrator].” Id.
The later grievance, II 090000841, concerned issues relating to Plaintiff’s access to
pain medication for treatment of “arthritis in back and pinched [sciatic] nerve.”
Whittington Plaintiff’s back. Id. at 55. Here, the Director of Nursing told Plaintiff on
June 22, 2009, that his care was appropriate because he had “been seen and provided
several different medications for pain,” but that narcotics “are only for short term use as
they are so addictive.” Id. On July 6, 2009, the Health Services Administrator concurred
generally with the Director’s response, noting specifically, that “[y]ou are also being
referred to Physical therapy to assist you with your pain management program.” Id. at 56.
MEMORANDUM DECISION AND ORDER -8-
Plaintiff appealed this determination stating that he agrees with the medication
recommendations, but that he is “[n]ot being seen by a physical therapist.” Id. Plaintiff
states in his grievance appeal that “I don’t want to just be medicated, I want to be fixed
[even if it requires surgery].” Id. On September 14, 2009, his level 3 appeal was denied
because “[Plaintiff has] been seen by P.T.” Id.
In his Response, Plaintiff submitted copies of thirteen Concern Forms regarding
his medical treatment. However, the forms do not show any exhausted medical
grievances with respect to any of those Concern Forms, other than the two already
acknowledged by Defendants. See Exs. A-O to Affidavit of Rickie Storm, Dkt. 31-1 at 3046.
B.
Analysis
Defendants argue that, with the exception of Plaintiff’s claims relating to physical
therapy, Plaintiff has failed to properly exhaust his administrative remedies regarding the
medical treatment he received. Defs.’ Mem. in Support of Mot. to Dismiss, Dkt. 25-1 at 918. Specifically, Defendants argue that all claims concerning Defendant’s foot and any
claims concerning his back, except for those concerning physical therapy, should be
dismissed for failure to exhaust. Id.
The Court agrees that Plaintiff did not timely appeal the denial of any of his
grievance, except as noted above. Because Plaintiff did not meet the IDOC’s deadline
with respect to the grievance appeal, he did not properly exhaust his administrative
remedies.
MEMORANDUM DECISION AND ORDER -9-
Plaintiff counters that he completed the grievance process “to the best of his
abilities.” Id. at 11. However, he fails to offer an explanation of why he did not file
timely appeals of the un-exhausted grievances, other than a bald assertion that he “fully
exhausted his administrative remedies during the whole process.” Id. at 2. Generally,
however, Plaintiff’s response repeats the claims he made in his Complaint.
Because Plaintiff did not properly complete the grievance process with respect to
most of his medical treatment, his § 1983 claims against the CMS Defendants, except as
to those relating to requests for physical therapy, must be dismissed. 42 U.S.C. §
1997e(a). Because Plaintiff does not allege that he is currently in imminent danger of
serious injury, his medical claims under state law must also be dismissed. I.C. § 194206(1).
4.
Defendant Shahan
Even though Defendant Shahan has not been served and therefore has not joined
the CMS Defendants’ Motion to Dismiss, the exhaustion requirements of 42 U.S.C. §
1997e(a) and Idaho Code section 19-4206(1) apply equally to Plaintiff’s claims against
Shahan. Thus, the Court will dismiss those claims against Shahan not relating to physical
therapy as well.
PLAINTIFF’S REMAINING MOTIONS
1.
Motion for Production of Documents (Dkt. 16) & Motion to Compel (Dkt. 21)
Plaintiff requests a full copy of his medical history from CMS. Defendants do not
oppose this request.
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It is beyond dispute that a patient is entitled to copies of his own medical records
from his medical providers.2 The entity from which Plaintiff seeks medical records is a
party to this suit, and has access to, probably reviewed, and likely used Plaintiff’s medical
records in its defense. Formal discovery in such an instance would be wasteful, as
Plaintiff is proceeding in forma pauperis. Accordingly, the Court will grant Plaintiff’s
request for production of his medical records and will require Defendants to produce a
copy of the pertinent medical records to Plaintiff within fourteen (14) days after entry of
this Order.
2.
Motion for Appointment of Counsel
As he did in his Complaint, Plaintiff once again asks for appointment of counsel.
Plaintiff cites his status as an inmate and lack of legal resources and training as grounds
for granting the motion. On December 30, 2010, Judge Boyle denied this request by
Initial Review Order. Dkt. 11.
In civil cases, counsel should be appointed only in “extraordinary cases.” Wilborn
v. Escalderon, 789 F.2d 1328, 1330 (9th Cir. 1986). To determine whether extraordinary
circumstances exist, the court should evaluate two factors: (1) the likelihood of success on
the merits of the case, and (2) the ability of the plaintiff to articulate his claims pro se in
light of the complexity of legal issues involved. Terrell v. Brewer, 935 F.2d 1015, 1017
2
See, e.g., I.C. § 39-1392(d), which provides that, “nothing in this act shall be construed as
restricting or altering the rights of inspection and copying by patients and their duly authorized
representatives with respect to the official chart maintained in connection with the course of care provided
such patients, which right of copying and inspection and to use such charts and their contents in
appropriate judicial proceedings is unaltered by this enactment.”
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(9th Cir. 1990). Neither factor is dispositive, and both must be evaluated together. Id.
Having reviewed the record in this case, the Court concludes that extraordinary
circumstances are not present. Plaintiff has some chance of success on the merits of some
of his claims, and Plaintiff has effectively argued his position and been able to gather and
submit appropriate evidence while incarcerated. Accordingly, Plaintiff’s Motion for
Appointment of Counsel (Dkt. 18) will be denied.
3.
Motion for Formal Service and Motion for Default Judgment
Plaintiff requests that the Court order the United States Marshall to effect formal
service to those parties who have yet to make an appearance. Plaintiff later moved for
default judgment for failure to comply with the Court’s order to submit a waiver of
service. However, all but one of the parties, Defendant Shahan, were dismissed in the
Initial Review Order.
A.
Doctors A-Z, ISCI Medical Staff, and Physicians Assistants A-Z, Idaho
Department of Corrections, and Brent Reinke
On December 30, 2010, these Defendants were dismissed in the Initial Review
Order. Dkt. 11. In the order, the unnamed defendants were dismissed because the Clerk
of Court cannot effect service on unknown defendants. Reinke was dismissed because he
had no apparent relation to Plaintiffs claims. IDOC was dismissed on Eleventh
Amendment Grounds. Judge Boyle allowed Plaintiff time to amend his complaint to cure
any deficiencies regarding these putative defendants, but he elected not to amend, and the
time to do so has passed. Thus, these defendants are dismissed and Plaintiff’s Motion for
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Formal Service is denied with regard to these parties.
D.
Defendant Shahan
Shahan was not dismissed in Judge Boyle’s Initial Review Order. Instead, Judge
Boyle allowed Plaintiff to proceed with his Eighth Amendment claims against Shahan.
On February 2, 2011, John J. Burke of Hall, Farly, Oberrect & Blanton, P.A., was served
a copy of the Complaint, a copy of the Initial Review Order, and a Waiver of Service of
Summons to be executed on Shahan’s behalf. Dkt. 17. While it is clear that Shahan is a
CMS Defendant, Burke has not yet made an appearance on his behalf.
The Clerk of Court shall send another waiver of service of summons form, a copy
of the Complaint, and a copy of this Order, in compliance with Federal Rule of Civil
Procedure 4(d),3 to Defendant Shahan, in care of John J. Burke of Hall, Farly, Oberrect &
Blanton, P.A., PO Box 1271, Boise, ID, 83701. If Shahan, or his attorney, do not return
the waiver within 30 days, the Clerk of Court is instructed to provide a Summons and the
Complaint to the U.S. Marshal Service for personal service on him.
Mr. Shahan is advised that if Plaintiff is required to utilize the U.S. Marshal or a
private process server to obtain personal service because he refuses to use the waiver
procedure, then Plaintiff can request that each Defendant be charged personally for the
costs of service, including any attorney’s fees necessary to collect the service costs See
Fed. R. Civ. P. 4(d)(1) & (2); see Estate of Darulis v. Garate, 401 F.3d 1060 (9th Cir.
3
Under the Waiver procedure, a defendant has thirty (30) days to sign and return the Waiver. If
the defendant actually signs and returns the Waiver, then he or she has an additional sixty (60) days to file
an answer.
MEMORANDUM DECISION AND ORDER -13-
2005).
ORDER
IT IS ORDERED THAT:
1.
Motion for Production of Documents (Dkt. 16) is GRANTED;
A.
Defendants shall produce a copy of Plaintiff’s medical records to
him within fourteen (14) days after entry of this Order.
2.
Motion for Appointment of Counsel (Dkt. 18) is DENIED;
3.
Motion for Formal Service (Dkt. 20) is GRANTED IN PART AND
DENIED IN PART;
A.
The Clerk of Court shall send another waiver of service of summons
form, a copy of the Complaint, and a copy of this Order, in
compliance with Federal Rule of Civil Procedure 4(d), to Defendant
Shahan, in care of John J. Burke of Hall, Farly, Oberrect & Blanton,
P.A., PO Box 1271, Boise, ID, 83701. If Shahan, or his attorney, do
not return the waiver within 30 days, the Clerk of Court is instructed
to provide a Summons and the Complaint to the U.S. Marshal
Service for personal service on him.
4.
Motion to Compel (Dkt. 21) is MOOT;
5.
Motion for Default Judgment (Dkt. 24) is DENIED;
6.
Defendants’ Partial Motion to Dismiss (Dkt. 25) is GRANTED;
A.
Plaintiff may proceed with his Eighth Amendment claims and his
MEMORANDUM DECISION AND ORDER -14-
medical malpractice claims against CMS and Shahan as they relate
to physical therapy. All other claims and all other Defendants are
DISMISSED.
7.
Plaintiff’s Motion for Extension of Time (Dkt. 30) is GRANTED.
DATED: September 22, 2011
Honorable B. Lynn Winmill
Chief U. S. District Judge
MEMORANDUM DECISION AND ORDER -15-
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