Stephenson v. Corizon Medical Services et al

Filing 24

MEMORANDUM DECISION AND ORDER. IT IS ORDERED: Defendants Motion for Summary Judgment 13 is GRANTED. Plaintiffs Complaint is DISMISSED without prejudice. Defendants Motion for a Protective Order and to Stay Discovery 15 is DENIED as MOOT. Defend ants Motion to Dismiss 19 is DENIED as MOOT. Plaintiffs Motion to Reconsider in Forma Pauperis Status 22 is DENIED as MOOT. 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 (st)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

DWAYNE R. STEPHENSON,
Plaintiff,
vs.

Case No. 1:14-cv-00460-BLW
MEMORANDUM DECISION
AND ORDER

CORIZON MEDICAL SERVICES, DR.
YOUNG, NP POULSON, et al.,
Defendants.

Pending before the Court in this prisoner civil rights matter is Defendants’ Motion
for Summary Judgment (Dkt. 13), Motion to Dismiss (Dkt. 19), and Motion to Stay
Discovery pending disposition of the other motions (Dkt. 15). Plaintiff also asks the
Court to reconsider whether he qualifies for in forma pauperis status (Dkt. 22). These
matters are now ripe for adjudication.
Having fully reviewed the record, the Court finds that the parties have adequately
presented the facts and legal arguments in the briefs and record and that the decisional
process would not be significantly aided by oral argument. Therefore, the Court will
decide this matter on the written motions, briefs and record without oral argument. D.
Idaho L. Civ. R. 7.1(d).

MEMORANDUM DECISION AND ORDER - 1

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT:
EXHAUSTION OF ADMINISTRATIVE REMEDIES

In the pending Motion for Summary Judgment, the Corizon Defendants argue that
Plaintiff failed to exhaust his administrative remedies completely before filing his
lawsuit, mandating dismissal without prejudice. For the reasons that follow, the Court
agrees.
1.

Plaintiff’s Allegations and Undisputed Material Facts
Plaintiff filed his Complaint on October 28, 2014. He contends that, after

undergoing a neck surgery in October 2013, something in his neck “snapped,” and
thereafter he suffered continuous pain. He asserts that the medical providers at the
prison—Defendants Dr. Murray Young and Nurse Practitioner William Poulson, who
work for Corizon, LLC —have refused to give him proper diagnoses and treatments after
that date.
In March 2014, Plaintiff signed forms giving permission for inmate
representatives in an ongoing class action lawsuit to discuss his medical issues with Idaho
Department of Correction (IDOC) Medical Services Administrator Rona Siegert and
others at status meetings where the monitoring of the provision of medical services is
discussed among IDOC officials, Corizon officials, inmates, lawyers, and other interested
representatives. The permission form states:
I understand that this form is not a substitute for a . . . grievance form. . . . I
am also still required to follow the concern/grievance process if I want to
grieve this issue.
(Plaintiff’s Exhibit, Dkt. 17-2, p. 1.)
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On October 6, 2014, Plaintiff filed a grievance on the same medical issues, which
was denied. On November 5, 2014, he filed an appeal, but his appeal form was returned
because the handwriting was partially illegible, and he resubmitted it. The response was
returned to Plaintiff on November 12, 2014. However, Plaintiff filed his Complaint in this
matter on October 28, 2014, before the appeal was completed.
2.

Standard of Law
The Prison Litigation Reform Act of 1995 (“PLRA”)1 requires a prisoner to

exhaust all available administrative remedies within the prison system before he can
include the claims in a new or ongoing civil rights lawsuit challenging the conditions of
confinement. 42 U.S.C. § 1997e(a); Cano v. Taylor, 739 F.3d 1214, 1220-21 (9th Cir.
2014) (a claim may be exhausted prior to filing suit or during suit, so long as exhaustion
was completed before the first time the prisoner sought to include the claim in the suit).
“Proper” exhaustion of administrative remedies is required, meaning that the prisoner
must comply “with [the prison’s] deadlines and other critical procedural rules because no
adjudicative system can function effectively without imposing some orderly structure on
the course of its proceedings.” Woodford v. Ngo, 548 U.S. 81, 90-91 (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 exhaustion requirement is based on the important policy concern that prison
officials should have “an opportunity to resolve disputes concerning the exercise of their
1

Pub. L. No. 104-134, 110 Stat. 1321, as amended, 42 U.S.C. § 1997e, et seq.

MEMORANDUM DECISION AND ORDER - 3

responsibilities before being haled into court.” Id. at 204. Once in court, defendants have
the right to bring motions addressing exhaustion of administrative remedies at the
beginning of litigation, and “disputed factual questions relevant to exhaustion should be
decided at that time. Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014) (en banc).
The issue of “[e]xhaustion should be decided, if feasible, before reaching the merits of a
prisoner’s claim.” Id. at 1170.
The defendant bears the ultimate burden of proving failure to exhaust. See Brown
v. Valoff, 422 F.3d 926, 936 (9th Cir. 2005). If the defendant initially shows that (1) an
available administrative remedy existed and (2) the prisoner failed to exhaust that
remedy, then the burden of production shifts to the plaintiff to bring forth evidence
“showing that there is something in his particular case that made the existing and
generally available administrative remedies effectively unavailable to him.” Albino, 747
F.3d at 1172.
Confusing or contradictory information given to a prisoner is relevant to the
question “of whether relief was, as a practical matter, ‘available.’” Brown, 422 F.3d at
937. Administrative remedies will be deemed unavailable and exhaustion excused if the
inmate had no way of knowing the prison’s grievance procedure, if the prison improperly
processed an inmate’s grievance, if prison officials misinformed an inmate regarding
grievance procedures, if the inmate “did not have access to the necessary grievance forms
within the prison’s time limits for filing the grievance,” or if prison staff took any other
similar actions that interfered with an inmate’s efforts to exhaust. Albino, 747 F.3d at
1173.
MEMORANDUM DECISION AND ORDER - 4

Failure to exhaust is an affirmative defense that may be asserted in a Federal Rule
of Civil Procedure 12(b)(6) motion to dismiss for failure to state a claim only if the
prisoner’s failure to exhaust is clear from the face of the complaint and any public
records subject to judicial notice. Albino, 747 F.3d at 1166. When either party relies on
evidence beyond the pleadings and public records, the exhaustion issue should be
determined as a matter of summary judgment under Rule 56. Id. at 1170. “If the record is
sufficiently developed to permit the trial court to consider summary judgment, and if the
court finds that when viewing the evidence in the light most favorable to a moving party
the movant has not shown a genuine dispute of fact on the issue of exhaustion,” the Court
may enter summary judgment for either the moving or the nonmoving party. Id. at 1176;
see Fed. R. Civ. P. 56(f) (“After giving notice and a reasonable time to respond, the court
may . . . grant summary judgment for a nonmovant.”)
Rule 56 prohibits the courts from resolving genuine disputes as to material facts
on summary judgment. If a genuine dispute exists as to material facts relating to an
exhaustion defense, the motion should be denied, and the “disputed factual questions
relevant to exhaustion should be decided by the judge, in the same manner a judge rather
than a jury decides disputed factual questions relevant to jurisdiction and venue.” Albino,
747 F.3d at 1170-71. See Lake v. Lake, 817 F.2d 1416, 1420 (9th Cir. 1987) (the court
has the discretion to take evidence at a preliminary hearing to resolve any questions of
credibility or fact, and the plaintiff must establish the facts by a preponderance of the
evidence, just as at trial).

MEMORANDUM DECISION AND ORDER - 5

If a prisoner has failed to exhaust available administrative remedies, the
appropriate remedy is dismissal without prejudice. Wyatt v. Terhune, 315 F.3d 1108,
1120 (9th Cir. 2003), overruled in part on other grounds by Albino, 747 F.3d 1162.
3.

IDOC Grievance Process
The IDOC has a simple grievance process, consisting of three stages. First, an

inmate with a concern must seek resolution of the problem by filling out an offender
concern form, addressed to a staff person capable of resolving the issue. If the issue
cannot be resolved through the use of a concern form, the inmate must then file a
grievance form. The grievance is then resolved by a Level 1 Initial Response, which is
reviewed by a Level 2 Reviewing Authority Response, and then returned to the inmate. If
the grievance did not resolve the issue satisfactorily, the inmate must file an appeal,
which is reviewed and decided by a Level 3 Appellate Authority Response. When all
three of these steps—concern form, grievance form, and grievance appeal—are
completed, the administrative grievance process is exhausted. (Affidavit of Jill
Whittington, Dkt. 13-3.) The procedure requires that the grievance and appeal forms be
handwritten legibly; if they are not, they are returned to the inmate with instructions to
make the writing legible. (IDOC Grievance Procedures, Dkt. 13-4, p. 10.)
4.

Discussion and Conclusion
The law is clear that (1) the particular prison grievance procedures must be

followed as specified in the prison’s written policies; and (2) a claim cannot be included
in a civil rights complaint unless it was exhausted before the time it is first included in the
lawsuit. Here, Plaintiff attempted to informally resolve his problem by taking it to the
MEMORANDUM DECISION AND ORDER - 6

class action medical monitoring meeting. However, nowhere does Plaintiff point to any
procedures that state that this method is an acceptable alternative to filing a prison
grievance, or to any official statement by a prison administrator letting him know that he
had satisfied the grievance procedures in an alternative manner and had the green light to
file a lawsuit without using the established grievance procedures. The form itself
contradicts his argument.
The fact that completion of the grievance process was delayed because Plaintiff
submitted a partially illegible appeal was his own fault, and he was simply required to
rewrite it and resubmit it, which he did. A legible appeal is a reasonable requirement,
because prison officials cannot know of the problem if they cannot read the grievance
appeal. However, after resubmitting the grievance appeal in a legible form, Plaintiff then
was required to wait for a response from his grievance appeal before filing his lawsuit,
which he did not do.
One of the reasons prisoners must follow the internal grievance system is to allow
prison officials to fix problems internally, without the need for filing a costly, timeconsuming lawsuit. Another reason is to provide them with legal notice, so that a lawsuit
can be filed if officials do not fix the problem at the grievance or appeal stage. Yet
another reason is to aid prisoners in the rehabilitative process—they are in prison for
failing to follow society’s rules, and the sooner they understand the importance of rules
and learn how to follow them with exactness, the better able they are to function within
the prison society and, if released, within the society at large. The bottom line is that
“before” means before.
MEMORANDUM DECISION AND ORDER - 7

The undisputed material facts show Plaintiff did not follow the rules of
administrative exhaustion. The United States Supreme Court has clarified that exactness
in following the administrative exhaustion rules is required. No adequate excuse for
failing to follow the rules is evident from the record. The Court rejects Plaintiff’s
argument that he did not first present his claim in his lawsuit at the time he first presented
the lawsuit for filing—simply because his lawsuit was “conditionally” filed by the Clerk
of Court. It is not the category in which the Clerk accepted and filed the lawsuit that is at
issue, but the fact that Plaintiff presented it for filing at that time.
Therefore, this case must be dismissed without prejudice. However, because
Plaintiff is still within the statute of limitations period on his more current lack-of-care
claims, he may re-file his lawsuit immediately, based upon any completed grievances,
and so Defendants’ procedural victory may be short-lived.
ORDER
IT IS ORDERED:
1. Defendants’ Motion for Summary Judgment (Dkt. 13) is GRANTED.
Plaintiff’s Complaint is DISMISSED without prejudice. A new complaint
based on the claims in the now-completed grievance may be re-filed within the
statute of limitations period.
2. Defendants’ Motion for a Protective Order and to Stay Discovery (Dkt. 15) is
DENIED as MOOT.
3. Defendants’ Motion to Dismiss (Dkt. 19) is DENIED as MOOT.

MEMORANDUM DECISION AND ORDER - 8

4. Plaintiff’s Motion to Reconsider in Forma Pauperis Status (Dkt. 22) is
DENIED as MOOT. Plaintiff may file a new motion with a current statement
of his prison trust account, together with a writtten explanation of his expenses
and income, with his new lawsuit.

DATED: November 12, 2015

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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