Ellis v. Corizon Inc et al

Filing 24

MEMORANDUM DECISION AND ORDER denying 13 Plaintiff's Motion to Reconsider Initial Review Order; denying 17 Plaintiff's Motion to Reconsider Initial Review Order; denying 18 Defendant Takagis Motion for Summary Judgment. Within 30 days after entry of this Order, Counsel shall consult together and submit a joint (or if there is no agreement, separate) proposed scheduling order(s), which must include proposed deadlines for amendment of pleadings, discovery, expert disclosure, and di spositive motions on the merits of the remaining claims. 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 (cjs) Modified on 9/2/2016 to edit text (cjs).

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

KENT RICHARD ELLIS,
Plaintiff,

Case No. 1:15-cv-00304-BLW

vs.

MEMORANDUM DECISION AND
ORDER

CORIZON, INC.; DR. YOUNG; N.P.
POULSON; MS. RONA SEIGERT;
MS. SHELLI MALLET; P.A.
TAKAGI; WARDEN BLADES;
WARDEN YORDY; N.P. GELOK; NP
SHAFFER,
Defendants.

Pending before the Court in this prisoner civil rights action are several motions
ripe for adjudication. Having fully reviewed the record, the Court finds that the facts and
legal arguments are adequately presented in the briefs and record and that oral argument
is unnecessary. See D. Idaho Loc. Civ. R. 7.1. Accordingly, the Court enters the
following Order.
BACKGROUND
Plaintiff, a prisoner in the custody of the Idaho Department of Correction (IDOC),
alleges that from October 15, 2008 to April 25, 2015, Defendants acted with deliberate
indifference by refusing to authorize an MRI test for Plaintiff so that his back and hip

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problems arising from a 2006 prison basketball game injury could be correctly diagnosed
and treated. Even after he received the MRI test, several employees of the prison medical
care provider, Corizon, told Plaintiff that he had only degenerative issues for which no
further treatment was indicated. Several years later, medical providers revisited the MRI
report, and saw that they had missed an “addendum” to the report which showed the
diagnoses of a torn labrum (hip cartilage) and a hip bone cyst, in addition to degenerative
changes to the bone. Plaintiff underwent surgery to repair his hip.
The Court permitted Plaintiff to proceed against Defendants Physician’s Assistant
Takagi, Nurse Practitioner Gelok, Rona Siegert, Dr. Murray Young, and Corizon, Inc.
Plaintiff has filed two pro se motions for reconsideration seeking to proceed against the
other Defendants named in the Complaint, for whom the Court found insufficient
allegations. (Dkt. 13, 17.) Defendant Takagi has filed a Motion for Summary Judgment
asserting that Plaintiff failed to exhaust his administrative remedies as to the claims
asserted against him. (Dkt. 18.) Plaintiff has since retained counsel.
MOTION FOR SUMMARY JUDGMENT
1. 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

1

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

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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).
The Ngo Court noted that “proper” exhaustion of administrative remedies means
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.” Id. at 88. Similarly, in Jones v. Bock, 549 U.S. 199 (2007), the Court
clarified that, “[t]he 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.” Id. at
218.
For example, in Jones v. Bock, the Supreme Court concluded that because the
prison’s “procedures [made] no mention of naming particular officials, the Sixth Circuit’s
rule imposing such a prerequisite to proper exhaustion [was] unwarranted.” Id. The
Supreme Court observed: “The PLRA requires exhaustion of ‘such administrative
remedies as are available,’ 42 U.S.C. § 1997e(a), but nothing in the statute imposes a
‘name all defendants’ requirement.’” Id. at 217.

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“There is no question that exhaustion is mandatory under the PLRA and that
unexhausted claims cannot be brought in court.” Id. at 211. 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 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
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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.
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
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has the discretion to take evidence at a preliminary hearing to resolve any questions of
credibility or fact and that the plaintiff must establish the facts by a preponderance of the
evidence, just as he would have to do at trial).
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.
2. IDOC Grievance Process
There are three stages in the IDOC grievance process. First, an inmate with a
concern must seek resolution of the problem by filling out an offender concern form,
addressed to the proper staff member. 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 in 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 a final decision
issued in 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. (See Dkt. 18-3 and 18-4.)
3. Discussion
Defendant Takagi asserts entitlement to summary judgment because he was not
named in Plaintiff’s grievance. Rather, Plaintiff’s grievance stated the following:

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The problem is:
6111/14 Dr. Young refered me lo Dr. Swartzman I specialist for my R. hip lower
back issues. 6-30-14 1 saw Dr. Swartzman. 7-11-14 M.R.I. requested by N.P.
Gelok. 7-24-14 M.R.I. denied by Dr. Young 7-28-14 M.R.I. requested again by
N.P. Gelok. M.R.I. denied again, this time by Corizon Corporate. 9-18-14
M .R.I. was finaly given. 10-1-14 N.P. Gelok reviewed M.R.I., told me that all I
had was degenerative bone in hip, 4 6 15 self initiated visit P.A. Poulson finds
mistake in M.R.I .review. Orders referal to ortho A.S...A.P.
I have tried to solve this problem informally by:
Countless attempts for years to get my hip properly looked al, evaluated. See
attached concern forms & H.S.R.'s all the while I was misdiagnosed & denied
treatment.
I suggest the following solution for the problem:
Compensate me for my pain & suffering. Give me corrective surgery to fix my
hip. Provide proof to me that Corizon & Corizon employees do not deny inmates
treatment due to financial cost!

(Dkt. 18-6 (verbatim).)
The IDOC has published a lengthy policy governing the grievance system, which
provides that a grievance “must (a) contain a reasonable and clear description of the
problem and (b) contain specific information such as dates, places, and names.” (Dkt. 184, p. 10, emphasis in original.) The common meaning of “such,” as used in the grievance
policy, is “of the same of a similar kind,” and the idiom “such as” means “for example”
or “like or similar to.” See http://www.yourdictionary.com/such. Therefore, the policy
reasonably can be read to mean that the prisoner must include specific information, which
may include the following: dates, places, and names.
This Court did not find any case interpreting the idiom “such as” in the manner
Defendant asserts. Rather, the cases tend to support the opposite. Though not of
precedential value, the reasoning of these cases is sound and consistent with each other.
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See Appeal of J.W. Bateson Co., Inc., VABCA No. 2071, 85-3 B.C.A. (CCH) ¶ 18394
(Sept. 16, 1985) (concluding that “the central meaning of ‘such as’ is ‘for example’”);
Lawler Mfg. Co. v. Bradley Corp., 280 F. App'x 951, 954 (Fed. Cir. 2008) (unpublished)
(observing that “such as” is a term that “refers either to items similar to what are recited”
or to “examples of what is covered by that provision”); Mauerhan v. Principi, 16 Vet.
App. 436, 442 (2002) (explaining that the phrase “‘such as’ means ‘for example’ or ‘like
or similar to’” (quoting Webster's New World Dictionary 1337 (3d coll. ed. 1988)), and,
therefore, “[t]he use of the term ‘such as’ demonstrates that the symptoms after that
phrase are not intended to constitute an exhaustive list, but rather are to serve as examples
of the type and degree of the symptoms.”); Warren v. McDonald, No. 13-3161, 2016 WL
2640983, at *3 (Vet. App. May 10, 2016) (unpublished) (concluding similarly and noting
that “it is not in the business of repairing poorly drafted regulations”).
The IDOC policy plainly does not require that the prisoner provide all names,
because that would have been very easy for the IDOC to specify—“provide all names of
the staff involved,” or provide every name of the staff involved.” If Defendants desire to
enforce a policy provision strictly, it must be written in a precise manner that supports
their interpretation. Here, a loosely-written policy cannot be strictly enforced.
Other provisions of the grievance policy support the Court’s interpretation. The
policy provides that the Offender Concern Form (OCF)—which is the first step in the
grievance process—may not be accepted by IDOC staff if it contains “vague
issues/complaints.” (Dkt. 18-4, p. 8.) There is no requirement that every person involved
in the problem or issue be named at the outset of the administrative grievance procedure.
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In addition, in what seems to be an effort to summarize the grievance policy
(perhaps because it is so long), the IDOC publishes a “Grievance and Informal
Resolution Process for Offenders Offender Handout” (Handout). (Dkt. 18-4, p. 23.) One
would think that the Handout would contain the very important information that
grievances must include some specific information “such as” dates, places, and names,
but it does not.
The IDOC seems to rely primarily on the Handout to provide prisoners with
necessary information regarding grievances, because it specifies that (1) all prisoners are
to be given a copy of the Handout (which has no information about mandatory items to be
included in the grievance—rightly so, because the policy is not stated in mandatory
terms), and (2) facility heads must ensure that the lengthy grievance policy contained in
the SOP manual is readily available to all offenders housed in their facility. Prisoners
must seek out the SOP manual if they desire to find out the information that grievances
must contain specific information, such as dates, places, and names.
The Handout does instruct prisoners to read the policy by asking a staff member
for the SOP. However, because the Handout appears to be a summary of the procedures,
it may mislead inmates to believe that it contains the important points of the policy, but,
in fact, the Handout contains no instruction to use specific information in writing
grievances.

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4. Conclusion
The Court concludes that Defendant Takagi is not entitled to summary judgment
because the only mandatory part of the grievance procedure at issue is that the prisoner
include some specific information of the type listed in the grievance policy, which
Plaintiff did.
MOTIONS TO AMEND
While proceeding pro se, Plaintiff filed two motions asking the Court to reconsider
its Initial Review Order. (Dkt. 13, 17.) For the following reasons, the motions will be
denied, but Plaintiff, through counsel, will be given an opportunity to file a second
motion to file an amended complaint, if counsel deems it appropriate under the
circumstances.
If Plaintiff desires to proceed against Nurse Shaffer or Nurse Poulson, he will have
to clarify which allegations demonstrate deliberate indifference. For example, Plaintiff
has alleged that Poulson “misdiagnosed” his condition, a term that generally equated with
negligence, a cause of action that is not cognizable as a constitutional claim.
A constitutional tort requires that the plaintiff show that the state actor deliberately
or intentionally caused the deprivation, or, at the least, did so in a subjectively reckless
manner—disregarding a risk of harm of which he or she is aware. See Farmer v.
Brennan, 511 U.S. 825, 836-38 (1994) (rejecting the objective reckless standard, which is
where a “person reckless who acts or (if the person has a duty to act) fails to act in the
face of an unjustifiably high risk of harm that is . . . so obvious that it should be known”;

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and observing that “an official's failure to alleviate a significant risk that he should have
perceived but did not, while no cause for commendation, cannot under our cases be
condemned as the infliction of punishment”). Gross negligence and ordinary negligence
are not actionable under § 1983, because such actions are not an abuse of governmental
power but merely a “failure to measure up to the conduct of a reasonable person.”
Daniels v. Williams, 474 U.S. 327 (1986).
Plaintiff also desires to proceed against Wardens Blades and Yordy. It is
insufficient to say only that these Defendants were “personally informed” that Plaintiff
was suffering from serious pain. These allegations do not show that these wardens were
aware that Plaintiff was receiving inappropriate treatment. Plaintiff must provide
additional facts stating how, when, and where these Defendants were “personally
informed” that inappropriate treatment issues were causing Plaintiff undue pain. Plaintiff
has provided insufficient allegations supporting his contention that the medical contractor
removed all pain medication from the prison and replaced it with psychotropic
medication, as he vaguely alleges, or that, if true, the wardens knew that no pain
medication was being permitted in prison during the time period in question.
Plaintiff also desires to proceed against Shelli Mallet, who required him to
resubmit his “concern form.” Plaintiff has not shown how this requirement caused him
harm if he immediately resubmitted the form. Nor has he shown that the requirement (or
any delay in the processing of the forms) was due to deliberate indifference of Mallet. As
with the allegations against the wardens, there are no facts regarding when these actions

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(including any resubmissions) took place. For all of these reasons, the motions for
reconsideration will be denied.
ORDER
IT IS ORDERED:
1. Plaintiff’s Motions to Reconsider Initial Review Order (Dkt. 13, 17) are
DENIED without prejudice.
2. Defendant Takagi’s Motion for Summary Judgment (Dkt. 18) is DENIED.
3. Within 30 days after entry of this Order, Counsel shall consult together and
submit a joint (or if there is no agreement, separate) proposed scheduling
order(s), which must include proposed deadlines for amendment of pleadings,
discovery, expert disclosure, and dispositive motions on the merits of the
remaining claims.

DATED: September 2, 2016

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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