Carr v. Carlyn et al

Filing 85

MEMORANDUM DECISION AND ORDER. IT IS ORDERED: 1. Defendants' Motion for Summary Judgment, Dkt. 52 , is GRANTED. 2. Defendants' Motion for Summary Judgment, Dkt. 73 , is GRANTED. 3. Defendants' Motion for Leave to File Excess Pages, D kt. 74 , is GRANTED. 4. Plaintiff's Motion for Sanctions, Dkt. 57, is DENIED. 5. Plaintiff's Motion for Partial Summary Judgment, Dkt. 60 , is DENIED. 6. Plaintiff's Motion for Entry of Judgment, Dkt. 68 , is DENIED. 7. Plaintiff� 39;s Motion for Partial Summary Judgment, Dkt. 72 , is DENIED. 8. Plaintiff's Motion for TRO, Dkts. 83 , is DENIED. 9. The Court will enter a separate judgment in accordance with Fed.R.Civ.P. 58. 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 (km)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

JODY CARR,
Case No. 1:14-cv-00125-BLW
Plaintiff,
v.
WARDEN CARLYN, SGT. HIGGENS,
D.W. YORDY, D.W. COBURN,
WARDEN RANDY BLADES, DR.
BABICH, DR. WHINNERY, N.P.
RORY YORK, TINA WILLIAMS,
SHELLY MALLET, CORIZON
MEDICAL, and IDOC,

MEMORANDUM DECISION AND
ORDER

Defendants.

INTRODUCTION
The Court has before it several motions. As explained below, the Court will grant
summary judgment in favor of all defendants, and dismiss this case in its entirety.
BACKGROUND
Carr is a prisoner in the custody of the Idaho Department of Corrections. He
alleges that in November of 2011, while incarcerated at Idaho Correctional InstitutionOrofino (ICI-O), he became ill with an antibiotic resistant strain of “C- Diff” and had
severe, bloody diarrhea for several months that went untreated and left him permanently

MEMORANDUM DECISION AND ORDER - 1

underweight and incontinent. He alleges that when he became ill at ICI-O he filed
Medical Care Request Forms, but Defendant York, a nurse practitioner, refused to see
him for approximately 60 days. Carr further alleges that when York finally examined
him, York diagnosed him as suffering from hemorrhoids and gave him hemorrhoid
cream. Thus, York examined Carr, determined a diagnosis, and provided him with
treatment.
Carr also filed a separate lawsuit, Carr v. Higgins et. al. (Case No. 1:13-cv00380-REB), in which he alleged that a correctional officer told him that another
correctional officer had put human feces in Plaintiff’s food in November 2011, and that
Carr learned this information within a few days of when he alleges he ate the feces-laced
food. Carr further alleges that he became immediately and violently ill. However, it
appears that Carr withheld the information that he may have consumed human feces from
York and other medical providers. Thus, Carr went to his medical providers with an
uncommon illness, the medical providers had no reason to believe he had been exposed
to feces-laced food, and they followed a regular course of attempting to diagnose the
problem. The other case was ultimately dismissed on summary judgment in favor of the
defendants.
Carr also states that in February or March of 2012, he was seen by a doctor who
diagnosed him with “C-Diff” and prescribed him an antibiotic, which he claims did
not work. He states that he repeatedly asked ICI-O Warden Carlyn for help during this
time period, but did not receive any help. Carr further alleges that prison officials failed

MEMORANDUM DECISION AND ORDER - 2

to protect him from assault, and that prison officials violated his right to send and receive
mail.
Upon review of Carr’s Amended Complaint, the Court allowed Carr to proceed
with the following claims: (1) Eighth Amendment deliberate indifference medical care
claim against Rory York; (2) Eighth Amendment deliberate indifference medical care
claims against Dr. Whinnery, Tina Williams, and Shelly Mallet; (3) Eighth Amendment
interference with medical care claim against Sergeant Higgins; (4) First Amendment mail
interference claim against Officer Maddox and Lieutenant Woodland; (5) Eighth
Amendment failure to protect claim against Physician’s Assistant Valley, Sergeant Link,
Sergeant Carter, and Lieutenant Aiello; and (6) First Amendment free speech claim
against Sergeant Mechtel. The claims are now before the Court on summary judgment,
except the claim against Rory York, who passed away on March 12, 2014. Dkt. 32.
ANALYSIS
1.

Corizon Defendants (Dr. Whinnery, Williams, Mallet, and Valley) are
Entitled to Summary Judgment.
Inmates must exhaust their available administrative remedies before bringing civil

rights actions based on prison conditions. The federal Prison Litigation Reform Act
(“PLRA”) requires exhaustion of administrative remedies for all federal claims brought
by state prisoners who challenge the conditions of their confinement in a federal
complaint. “No action shall be brought with respect to prison conditions under section
1983 of this title, or any other federal law, until such administrative remedies as are
available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion must be proper; meaning “a
MEMORANDUM DECISION AND ORDER - 3

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). “The level of detail necessary in
a grievance to comply with the grievance procedures will vary from system to system and
claim to claim, but it is the prison’s requirements, and not the PLRA, that define the
boundaries of proper exhaustion.” Jones v. Bock, 549 U.S. 199, 218 (2007).
Idaho law also requires that prisoners exhaust administrative remedies before
proceeding with civil lawsuits. Idaho Code § 19–4206(1). The Idaho Court of Appeals
has interpreted this statutory provision to require exhaustion for all civil actions related to
conditions of confinement. Drennon v. Idaho State Corr. Inst., 181 P.3d 524, 526 (Idaho
Ct.App.2007). Likewise, Idaho requires that the prisoner meet procedural deadlines to
exhaust administrative remedies properly. Butters v. Valdez, 241 P.3d 7, 12 (Idaho
Ct.App.2010) (Relying on federal law interpreting 42 U.S.C. § 1997e(a)).
In the Ninth Circuit, a claim that a prisoner failed to exhaust administrative
remedies is an affirmative defense that should be brought as an unenumerated motion to
dismiss under Rule 12(b) of the Federal Rules of Civil Procedure. Wyatt v. Terhune, 315
F.3d 1108, 1119 (9th Cir.2002). Defendants have the burden to plead and prove
exhaustion, and the reviewing court may look beyond the pleadings to resolve disputed
issues of fact, if necessary. Id.
Here, the Corizon defendants have brought such a motion, and they have met their
burden. IDOC’s grievance procedure for inmates is set forth in Defendants’ statement of
facts and supporting affidavits. See Pitzer Aff., ¶ 3, Dkt. 52-3. The IDOC grievance
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process is contained generally in IDOC Policy 316: Offender Grievance Process. The
grievance procedure is contained in IDOC Division of Prisons Standard Operating
Procedure 316.02.01.001. Id., Ex. A-1, Dkt. 52-4.
The IDOC grievance procedure consists of three stages. Id. ¶ 5, Dkt. 52-3. First, an
inmate must seek an informal resolution by filling out an Offender Concern Form,
addressed to the most appropriate staff member. If the issue is not informally resolved at
this stage, the inmate must file a Grievance Form. The Grievance Form must be
submitted within 30 days of the incident giving rise to the grievance. Id. The inmate must
attach a signed Offender Concern Form showing the inmate’s attempt to settle the issue
informally. Moreover, grievances must contain “specific information including nature of
the complaint, dates, places, and names,” and only one issue may be raised in each
grievance. Id., ¶ 6. The grievance information is then entered into the Corrections
Integrated System, and the Grievance Coordinator assigns the grievance “to the staff
member most capable of responding to and, if appropriate, resolving the issue.” Id. That
staff member responds to the grievance and returns it to the Grievance Coordinator.
The Grievance Coordinator then forwards the grievance to a “reviewing authority”
unless it’s a medical issue, in which case it is forwarded to the facility Health Services
Administrator. Id. The reviewing authority returns the grievance to the Grievance
Coordinator, who logs the response into the database and sends the completed grievance
back to the inmate. Id. ¶ 7. When the grievance involves a medical issue, the grievance is
routed through facility medical staff employed by a health care contractor. Id. An inmate
may appeal an unsatisfactory decision. Id., ¶ 8. A facility head then decides the inmate’s
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grievance appeal. If it is a medical grievance the Health Services Director is the appellate
authority. After the appeal is decided, the Grievance Coordinator returns the completed
appeal form to the inmate. Id. The grievance process is exhausted at the end of all three
of these steps. Id., ¶ 9.
Here, Carr filed only one medical grievance (Grievance IO120000119) between
March 1, 2012 and January 20, 2015. It does not exhaust the claims asserted against Dr.
Whinnery, Williams, or Mallet. First and foremost, Carr did not identify these defendants
as required by the IDOC grievance policy. Id., ¶ 6. In fact, the grievance form was
submitted before these defendants were even involved in the matter. In his grievance,
Carr asserts that he did not receive pain medications or evaluation by a doctor for his
diarrhea complaints. But in his Amended Complaint, he asserts that Dr. Whinnery,
Williams, and Mallet improperly placed him in administrative segregation, prescribed
inappropriate medications, and refused to give him proper care. These are not part of the
grievance he submitted to IDOC. And regarding defendant PA Valley, Carr’s nonmedical grievances after he was apparently assaulted do not reference Valley or anyone
else on the healthcare staff. Id., ¶¶ 12-14. As explained above, the IDOC grievance policy
requires an inmate to identify the individuals against whom the inmate has a grievance.
Accordingly, Carr failed to exhaust his administrative remedies against the Corizon
medical defendants. Id., ¶ 6. Accordingly, the Court will grant summary judgment in
their favor.
2.

IDOC Defendants (Higgins, Aiella, Link, Carter, Mechtel, Woodland, and
Maddox) are Entitled to Summary Judgment.

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Carr failed to exhaust his administrative remedies against defendants Higgins,
Aiella, Link, Carter and Mechtel. And he failed to state a claim against defendants
Woodland and Maddox.
a.

Defndants Higgins, Aiella, Link, Carter, and Mechtel

The PLRA requirement that an inmate exhaust his administrative remedies, and
IDOC’s grievance procedure, are explained in detail just above. The Court will not repeat
them hear, but that same standard applies. The Court finds that Defendants Higgins,
Aiella, Link, Carter, and Mechtel have met their burden of showing Carr did not exhaust
his administrative remedies.
First, in his Amended Complaint Carr generally alleges that Defendant Higgins
obstructed his right to medical treatment while he was housed at ISCI between April 26,
2012 and December 11, 2012 and again between February 5, 2013 and April 9, 2013. But
Carr did not submit any grievances while he was housed at ISCI between April 15, 2012
and December 11, 2012 or within thirty days thereafter as required by the grievance
procedure. Pitzer Decl., ¶20, Ex. E, Dkts. 73-7 and 73-10. The same is true for the period
of February 5, 2013 to April 9, 2013 and thirty days thereafter regarding being prevented
from receiving medical care. Id. ¶ 21, Exs. E and F, Dkts. 73-7 and 73-10.
Regarding Defendants Link, Aiello and Carter, Carr generally alleges they failed
to protect him from an assault on September 20, 2014. Within 30 days of that alleged
assault, Carr submitted four grievances. All four were screened by the IMSI grievance
coordinator and returned without action pursuant to the IDOC grievance procedure
because they did not comply with the grievance guidelines. Id., ¶ 23, Ex. H, Dkt. 73-11.
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The return slip indicates that Carr raised more than one specific issue per grievance, and
that he failed to write it in concise and understandable language. Id. This is not unlike
some of the briefing before the Court, and the Court agrees that it is not understandable
or in line with the grievance guidelines. Thus, Carr failed to properly exhaust available
administrative remedies with respect to his failure to protect claims under the Eighth
Amendment against Link, Aiella, and Carter.
The same is true for Carr’s claims against Defendant Mechtel. According to the
evidence before the Court, Carr submitted three grievances in October of 2013
complaining about Mechtel. Similar to the grievances against Link, Aiella, and Carter,
the grievance coordinator screened and rejected these grievances. Id., ¶ 22, Exs. E and G,
Dkt. 73-10. Like his other grievances, these were returned to Carr with an explanation
about why they were not processed – raised more than one issue, no clear description, no
dates, etc. Id. Under these circumstances, the Court will dismiss the claims against
Higgins, Link, Aiella, Carter, and Mechtel because Carr failed to exhaust his
administrative remedies as to these defendants.
b.

Defendants Woodland and Maddox

As a prison inmate, Carr retains the First Amendment right to send and receive
mail. Thornburgh v. Abbott, 490 U.S. 401, 407 (1989). “[H]owever, [] these rights must
be exercised with due regard for the ‘inordinately difficult undertaking’ that is modern
prison administration.” Id., citing Turner v. Safley, 482 U.S. 78, 84 (1987). A prison
regulation affecting outgoing or incoming mail need not satisfy a “least restrictive
means” test, but must be “‘generally necessary’ to a legitimate governmental interest.”
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Abbott, 490 U.S. at 414. The detention, inspection, and censoring of mail by prison
officials in order to uncover contraband has been held to further a legitimate penological
interest. Mann v. Adams, 846 F.2d 589, 591 (9th Cir. 1988).
Carr alleges that Defendants Maddox and Woodland interfered with delivery of
his mail on April 15, 2014 by opening, reading and confiscating the initial disclosures he
received from the defendants in another case (Carr v. Higgins et. al. (Case No. 1:13-cv00380-REB), which has subsequently been dismissed). In its order on the Amended
Complaint, the Court explained that this claim cannot be classified as a “legal mail”
claim because the mail was not subject to the attorney-client privilege. Keenan v. Hall, 83
F.3d 1083, 1094 (9th Cir. 1996), Dkt. 27, p.16. Thus, the Court allowed this claim to
proceed as a general interference with mail claim, noting that Carr must show that prison
officials regularly and unjustifiably interfered with his incoming mail. See Davis v.
Goord, 320 F.3d 346, 351 (2d Cir. 2003) (“The inmate must show that prison officials
regularly and unjustifiably interfered with the incoming legal mail); Gardner v. Howard,
109 F.3d 427, 431 (8th Cir. 1997) (“We have never held or suggested that an isolated,
inadvertent instance of opening incoming confidential legal mail will support a § 1983
damage action”); Smith v. Maschner, 899 F.2d 940, 944 (10th Cir. 1990). Carr has not
come forward with any such evidence. Instead, Defendant Maddox’s explanation
regarding the delay in delivery of the mail shows just the opposite.
Maddox explains that on April 14, 2014, he was distributing legal mail on CBlock at IMSI, where Carr was housed. Maddox Decl., ¶6, 73-12. Although the Court has
since determined that the mail was not legal mail, Maddox nevertheless opened the mail
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in Carr’s presence in line with the legal mail guidelines. Id. While scanning it, he saw
that it included attachments which may have been unauthorized for an inmate’s
possession, including copies of daily shift logs and print outs from the electronic database
of records maintained by IDOC. Id. Uncertain of whether an inmate was allowed to
possess this information, he and Carr went to the unit foyer to discuss the matter with the
shift commander, Lieutenant Woodland. Id. Woodland instructed Maddox to contact the
IMSI paralegal for guidance. Id., ¶7; Woodland Decl., ¶6, Dkt. 73-16. The paralegal
asked to screen the documents to determine whether they implicated security or other
concerns. Id. After the paralegal screened them, and determined they were okay to give to
Carr, Maddox tried to deliver them to Carr. Id. Although Carr refused to accept them
because he believed they had been tampered with, he has no basis in fact for this
argument, and there is substantial evidence to the contrary – he ultimately received the
documents in their entirety as determined by the court in that case. See Case No. 1:13-cv00380-REB, Notice of Compliance Regarding Initial Disclosures, Dkt 42; Amended
Notice of Service attached to Notice of Compliance Regarding Initial Disclosures as
Exhibit A, Dkt. 42 at pp. 5-6. Under these circumstances, the Court will also dismiss the
claims against Maddox and Woodland for failure to state a claim.
ORDER
IT IS ORDERED:
1. Defendants’ Motion for Summary Judgment, Dkt. 52, is GRANTED.
2. Defendants’ Motion for Summary Judgment, Dkt. 73, is GRANTED.
3. Defendants’ Motion for Leave to File Excess Pages, Dkt. 74, is GRANTED.
MEMORANDUM DECISION AND ORDER - 10

4. Plaintiff’s Motion for Sanctions, Dkt. 57, is DENIED.
5. Plaintiff’s Motion for Partial Summary Judgment, Dkt. 60, is DENIED.
6. Plaintiff’s Motion for Entry of Judgment, Dkt. 68, is DENIED.
7. Plaintiff’s Motion for Partial Summary Judgment, Dkt. 72, is DENIED.
8. Plaintiff’s Motion for TRO, Dkts. 83, is DENIED.
9. The Court will enter a separate judgment in accordance with Fed.R.Civ.P. 58.

DATED: March 17, 2017
_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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