Savage v. Gelok et al
Filing
26
MEMORANDUM DECISION AND ORDER Defendants' Motion for Partial Summary Judgment (Dkt. 17 ) is GRANTED IN PART. All of Plaintiff's claims other than (1) Plaintiff's claim, of inadequate medical treatment for gastrointestinal problems, a gainst Dr. Young for the treatment Plaintiff received through 10/20/15, and (2) Plaintiff's claim, of inadequate medical treatment for gastrointestinal problems, against Corizon for the treatment Plaintiff received through 12/22/15 - are DISMISS ED without prejudice. All Defendants except Defendants Young and Corizon are DISMISSED from this case. 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 (jp)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
BRANDON SAVAGE,
Case No. 1:16-cv-00073-BLW
Plaintiff,
MEMORANDUM DECISION AND
ORDER
v.
CHRISTIAN GELOK, WILLIAM
POULSON, DR. AGLER, HOWARD
KEITH YORDY, MURRAY YOUNG,
and CORIZON, INC.,
Defendants.
Plaintiff, a prisoner in the custody of the Idaho Department of Correction (IDOC),
is proceeding pro se and in forma pauperis in this civil rights action. Now pending before
the Court is Defendants’ motion for partial summary judgment. Defendants assert that
Plaintiff failed to exhaust his administrative remedies with respect to many of his claims.
(Dkt. 17.) Also pending is Plaintiff’s motion for summary judgment (Dkt. 21), but that
motion is not yet 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
MEMORANDUM DECISION AND ORDER - 1
Order, granting Defendants’ Motion in part and dismissing all of Plaintiff’s claims other
than (1) Plaintiff’s claim, of inadequate medical treatment for gastrointestinal problems,
against Dr. Young for the treatment Plaintiff received through October 20, 2015, and (2)
Plaintiff’s claim, of inadequate medical treatment for gastrointestinal problems, against
Corizon for the treatment Plaintiff received through December 22, 2015.
INTRODUCTION
Plaintiff alleges that he has been denied adequate medical care for his
gastrointestinal problems and his umbilical hernia. Pursuant to 28 U.S.C. §§ 1915 and
1915A, the Court previously reviewed Plaintiff’s Complaint (Dkt. 3), as well as his
supplemental pleading (Dkt. 9), and determined that he stated a plausible claim for relief
against Defendants Gelok, Poulson, Agler, Young, and Corizon. (Dkt. 10.)
Defendants now allege that all claims against Defendants Gelok, Poulson, and
Agler, as well as Plaintiff’s hernia claims against Defendants Young and Corizon, must
be dismissed because Plaintiff failed to exhaust available administrative remedies.
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
1.
Factual Background
This section includes facts that are undisputed and material to the resolution of the
issues in this case. Where material facts are in dispute, the Court has included Plaintiff’s
version of facts.
A.
IDOC Grievance Procedures
IDOC has established a grievance process, which is attached as Exhibit A-1 to the
Affidavit of Jill Whittington, IDOC’s Grievance Coordinator (“Whittington Aff.”) (Dkt.
MEMORANDUM DECISION AND ORDER - 2
17-3). This 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 most appropriate staff member.” (Id. ¶ 5.) If the issue cannot be
resolved informally through the concern form, the inmate must then file a grievance
form. (Id.) A grievance form must be submitted within 30 days of the incident giving rise
to the grievance.
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; the grievance must also
“contain ‘specific information including [the] nature of the complaint, dates, places, and
names.’” (Id. ¶ 6.) “Grievances are limited to one page of the grievance form, and an
inmate’s description of the issue being grieved must be written within the appropriate
area of the grievance form.” (Id.)
When the Grievance Coordinator receives a grievance, the coordinator enters the
grievance information into the Corrections Integrated System (“CIS”), an electronic
database used to log offender grievances and grievance appeals. (Id.) If a grievance is not
completed, is filled out incorrectly, or is otherwise deemed in violation of policy—such
as if the inmate failed to attach a copy of the concern form—the grievance is returned to
the inmate without being processed, along with a description of the grievance’s
deficiencies. (See Ex. 1, Appx. D, Dkt. 17-4 at 24.) Grievances rejected in this manner
“are not retained by the Grievance Coordinator.” (Whittington Aff., Dkt. 17-3 at ¶ 6.)
MEMORANDUM DECISION AND ORDER - 3
If a grievance is correctly completed, the grievance coordinator assigns the inmate
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 coordinator. The coordinator then forwards the grievance to a “reviewing authority.”
In the case of a medical grievance, the reviewing authority is the “facility Health Services
Administrator.” (Id.) The reviewing authority reviews the staff member’s response to the
grievance and issues a decision on the inmate’s grievance. The grievance decision is then
returned to the inmate.
If the decision on an inmate’s grievance is not satisfactory to the inmate, the
inmate may appeal that decision. (Id. ¶ 8.) If the grievance involves a medical issue, the
“appellate authority” is the Health Services Director. (Id.) The appellate authority decides
the grievance appeal and the appeal form is returned to the inmate. Not until the
completion of all three of these steps—concern form, grievance form, and grievance
appeal—is the grievance process exhausted. (Id. at ¶ 9.)
B.
Plaintiff’s Medical Grievances
Plaintiff attempted to filed a medical grievance on September 10, 2015. This
grievance, which was assigned Grievance No. II150000947 (“Grievance 947”), was
returned to Plaintiff without action because Plaintiff “failed to attach a concern form
showing his attempt to resolve the issue.” (Whittington Aff. at ¶ 12.)
Plaintiff resubmitted the grievance on October 4, 2015, this time attaching the
required concern form. This grievance, which was assigned Grievance No. II150001060
(“Grievance 1060”), stated that Plaintiff should be examined by a gastroenterologist and
MEMORANDUM DECISION AND ORDER - 4
that he had attempted to resolve his concerns with several individuals, including
Defendant Young. (Ex. A-3 to Whittington Aff., Dkt. 17-6 at 2-3; Ex. 1 to Plaintiff’s
Aff., Dkt. 19-4 at 5-7.) This grievance did not mention Plaintiff’s hernia issue. This
grievance was granted on October 20, 2015, because Plaintiff was “already scheduled to
see a gastroenterologist.” (Id.)
On December 21, 2015, Plaintiff again attempted to submit a medical grievance
“in regard to the very inappropriate care [Plaintiff] received from” Defendant Agler.
(Plaintiff’s Aff. at 3.) This grievance, which was assigned Grievance No. II150001358
(“Grievance 1358”), stated as follows:
On [December 11, 2015], I was admitted to the infirmary by a
provider. While in the infirmary, I was met by wannabe Dr.
Agler. I refused to allow him to convince me that it isn’t
normal to have a bowel movement everyday and that it’s
perfectly normal to go up to 2 weeks without one. Now me
gosh darn knowing well that not to be true, I called him on it
& he kicked me out of the infirmary and blatantly refused me
anymore treatment, even taking away my wheelchair and
forcing me to walk around in agonizing pain.
(Ex. 2 to Plaintiff’s Aff., Dkt. 19-5 at 3.) Grievance 1358 was returned to Plaintiff
without being processed the same day it was submitted, because Plaintiff did not attach a
concern form to the grievance.1 (Id. at 2; Plaintiff’s Aff. at 3; Ex. A-2 to Whittington
Aff.) Plaintiff did not resubmit this grievance.
Whittington claims that Grievance 1358 was also rejected “because it contained inappropriate or
harassing comments.” (Whittington Aff. at ¶ 14.) Because there is no evidence in the record to support
this assertion, the Court does not accept it for purposes of Defendant’s Motion.
1
MEMORANDUM DECISION AND ORDER - 5
Plaintiff asserts that he submitted another grievance on December 21, 2015. This
grievance, which was not issued a grievance number, stated:
Going on 4 months now, I have once again begun
experiencing severe intestinal distress until which continues
to cause me extremely uncomfortable and debilitating pain.
Medical has blatantly refused & denied to follow the
orders/recommendations made by the actual specialists and
only desires to treat me by continuously dosing me up on
laxatives, telling me that eventually something will have to
come out, unto which is not helping and only making things
worse.
(Plaintiff’s Aff. at 7; Ex. 3 to Plaintiff’s Aff., Dkt. 19-6 at 4.) On December 22, 2015, the
grievance coordinator returned this grievance to Plaintiff without processing it, stating
that the issue “was previously grieved” in Grievance 1060. (Plaintiff’s Aff. at 8; Ex. 3 to
Plaintiff’s Aff., Dkt. 19-6 at 4.)
Finally, on January 25, 2016, Plaintiff attempted to file a grievance, which was
issued grievance number II160000120 (“Grievance 120”). Although the content of
Grievance 120 is not in the record, Plaintiff does not dispute Whittington’s assertion that
this grievance was returned to Plaintiff without being processed because Plaintiff’s
writing “did not stay within the appropriate area on the form as required by IDOC
policy.” (Whittington Aff. ¶ 14.)
2.
Standard of Law Governing Summary Judgment
Summary judgment is appropriate where a party can show that, as to any claim or
defense, “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). One of the principal purposes of the
summary judgment rule “is to isolate and dispose of factually unsupported claims or
MEMORANDUM DECISION AND ORDER - 6
defenses.” Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). It is not “a disfavored
procedural shortcut,” but is instead the “principal tool[] by which factually insufficient
claims or defenses [can] be isolated and prevented from going to trial with the attendant
unwarranted consumption of public and private resources.” Id. at 327.
“[T]he mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment . . . .” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Rather, there must be no genuine
dispute as to any material fact for a case to survive summary judgment. Material facts are
those “that might affect the outcome of the suit.” Id. at 248. “Disputes over irrelevant or
unnecessary facts will not preclude a grant of summary judgment.” T.W. Elec. Serv., Inc.
v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987).
The moving party is entitled to summary judgment if that party shows that each
material fact cannot be disputed. To show that the material facts are not in dispute, a
party may cite to particular parts of materials in the record or show that the adverse party
is unable to produce admissible evidence to support a fact. Fed. R. Civ. P. 56(c)(1)(A) &
(B). The Court must consider “the cited materials,” but it may also consider “other
materials in the record.” Fed. R. Civ. P. 56(c)(3). The Court is “not required to comb
through the record to find some reason to deny a motion for summary judgment.”
Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1029 (9th Cir. 2001)
(internal quotation marks omitted). Instead, the “party opposing summary judgment must
direct [the Court’s] attention to specific triable facts.” So. Ca. Gas Co., 336 F.3d at 889.
MEMORANDUM DECISION AND ORDER - 7
If the moving party meets its initial responsibility, then the burden shifts to the
opposing party to establish that a genuine dispute as to any material fact actually does
exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The
existence of a scintilla of evidence in support of the non-moving party’s position is
insufficient. Rather, “there must be evidence on which [a] jury could reasonably find for
the [non-moving party].” Anderson, 477 U.S. at 252.
Material used to support or dispute a fact must be “presented in a form that would
be admissible in evidence.” Fed. R. Civ. P. 56(c)(2). Affidavits or declarations submitted
in support of or in opposition to a motion “must be made on personal knowledge, set out
facts that would be admissible in evidence, and show that the affiant or declarant is
competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4).
If a party “fails to properly support an assertion of fact or fails to properly address
another party’s assertion of fact,” the Court may consider that fact to be undisputed. Fed.
R. Civ. P. 56(e)(2). The Court may grant summary judgment for the moving party “if the
motion and supporting materials—including the facts considered undisputed—show that
the movant is entitled to it.” Fed. R. Civ. P. 56(e)(3).
The Court does not determine the credibility of affiants or weigh the evidence set
forth by the parties. Although all reasonable inferences which can be drawn from the
evidence must be drawn in a light most favorable to the non-moving party, T.W. Elec.
Serv., Inc., 809 F.2d at 630-31, the Court is not required to adopt unreasonable inferences
from circumstantial evidence, McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th Cir. 1988).
MEMORANDUM DECISION AND ORDER - 8
Statements in a brief, unsupported by the record, cannot be used to create an issue
of fact. Barnes v. Indep. Auto. Dealers, 64 F.3d 1389, 1396 n.3 (9th Cir. 1995). The
Ninth Circuit “ha[s] repeatedly held that documents which have not had a proper
foundation laid to authenticate them cannot support a motion for summary judgment.”
Beyene v. Coleman Sec. Services, Inc., 854 F.2d 1179, 1182 (9th Cir. 1988) (citation and
internal quotation marks omitted). Authentication, required by Federal Rule of Evidence
901(a), is not satisfied simply by attaching a document to an affidavit. Id. The affidavit
must contain “testimony of a witness with personal knowledge of the facts who attests to
the identity and due execution of the document.” Id.
3.
Exhaustion of Administrative Remedies Requirement
Pursuant to the Prison Litigation Reform Act of 1995 (“PLRA”),1 prisoners are
required to exhaust all available administrative remedies within the prison system before
they can include the claims in a new or ongoing civil rights lawsuit challenging the
conditions of their confinement. 42 U.S.C. § 1997e(a); see also Cano v. Taylor, 739 F.3d
1214, 1220-21 (9th Cir. 2014) (holding that 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
1
Pub. L. No. 104-134, 110 Stat. 1321, as amended, 42 U.S.C. § 1997e, et seq.
MEMORANDUM DECISION AND ORDER - 9
U.S. 81, 90-91 (2006). However, an inmate need exhaust only those remedies that are
“available”—that is, an inmate must exhaust “those, but only those, grievance procedures
that are ‘capable of use’ to obtain ‘some relief for the action complained of.’” Ross v.
Blake, 136 S. Ct. 1850, 1859 (2016) (quoting Booth v. Churner, 532 U.S. 731, 738
(2001).
“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). Proper exhaustion is required “even where it may appear futile.” Nunez v.
Duncan, 591 F.3d 1217, 1231 (9th Cir. 2010). The exhaustion-of-administrative-remedies
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.
As the PLRA intended, all motions addressing exhaustion of administrative
remedies, including “disputed factual questions relevant to exhaustion[,] should be
decided at the very beginning of the litigation.” Id. at 1171. Rule 56 prohibits the courts
from resolving genuine disputes as to material facts on summary judgment. However, if a
genuine dispute exists as to material facts relating to an exhaustion defense such that
summary judgment is inappropriate, the Court is authorized—but not required—to decide
the disputed facts in an appropriate preliminary proceeding, “in the same manner a judge
rather than a jury decides disputed factual questions relevant to jurisdiction and venue.”
Id. at 1170-71. See also McNutt v. General Motors Acceptance Corp. of Ind., 298 U.S.
MEMORANDUM DECISION AND ORDER - 10
178, 184 (1936) (stating that the court may “inquire into the facts as they really exist”)
(internal quotation marks omitted); Murphy v. Schneider Nat’l, Inc., 362 F.3d 1133, 1139
(9th Cir. 2004) (stating that the court may “hold[] an evidentiary hearing on the disputed
facts”); Lake v. Lake, 817 F.2d 1416, 1420 (9th Cir. 1987) (stating that the court “has the
discretion to take evidence at a preliminary hearing in order 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”) (internal quotation marks omitted). In
all cases, “[e]xhaustion should be decided, if feasible, before reaching the merits of a
prisoner’s claim.” Albino, 747 F.3d 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 plaintiff failed to exhaust that
remedy, then the burden of production shifts to the plaintiff to produce 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.
There are three general situations that can render a prison grievance process
effectively unavailable to an inmate. First, an administrative procedure is not available,
and therefore need not be exhausted, “when (despite what regulations or guidance
materials may promise) it operates as a simple dead end—with officers unable or
MEMORANDUM DECISION AND ORDER - 11
consistently unwilling to provide any relief to aggrieved inmates.” Ross, 136 S. Ct. at
1859.
Second, “an administrative scheme might be so opaque that it becomes, practically
speaking, incapable of use. In this situation, some mechanism exists to provide relief, but
no ordinary prisoner can discern or navigate it.” Id. “When rules are so confusing that no
reasonable prisoner can use them, then they’re no longer available.” Id. (internal
quotation marks and alteration omitted).
Finally, administrative remedies will be deemed unavailable if “prison
administrators thwart inmates from taking advantage of a grievance process through
machination, misrepresentation, or intimidation,” or if administrators otherwise interfere
with an inmate’s pursuit of relief. Id. at 1860. For example, if the prison improperly
processed an inmate’s grievance, if prison officials misinformed an inmate regarding
grievance procedures, or if the inmate “did not have access to the necessary grievance
forms within the prison’s time limits for filing the grievance,” administrative remedies
will be considered unavailable. Albino, 747 F.3d at 1172-73; see also McBride v. Lopez,
807 F.3d 982, 987 (9th Cir. 2015) (holding that an inmate’s fear of retaliation may suffice
to render the grievance process unavailable, if the prisoner (1) “provide[s] a basis for the
court to find that he actually believed prison officials would retaliate against him if he
filed a grievance,” and (2) “demonstrate[s] that his belief was objectively reasonable”).
MEMORANDUM DECISION AND ORDER - 12
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.
4.
Discussion
A.
Defendants’ Initial Showing
Defendants’ submitted evidence of four of the five2 grievances that Plaintiff filed
regarding his medical treatment: (1) Grievance 947, submitted on September 10, 2015;
(2) Grievance 1060, submitted on October 4, 2015; (3) Grievance 1358, submitted on
December 21, 2015; and (4) Grievance 120, submitted on January 25, 2016.
As to Grievance 947, Plaintiff did not comply with the grievance policy’s
requirement to attach a concern form. Therefore, Defendants have met their initial burden
of showing that Grievance 947 did not properly exhaust any of Plaintiff’s claims of
inadequate medical treatment. See Jones, 549 U.S. at 218 (stating that the prison’s
grievance policy “define[s] the boundaries of proper exhaustion”).
The parties agree that Grievance 1060 was properly exhausted as to the medical
treatment claims identified in that grievance. The grievance discussed Plaintiff’s
gastrointestinal problems and stated that Dr. Young had not acted to resolve Plaintiff’s
concerns. (See Ex. A-3 to Whittington Aff., Dkt. 17-6 at 2-3; Ex. 1 to Plaintiff’s Aff.,
Dkt. 19-4 at 5-7.) Grievance 1060 thus exhausted any claims of inadequate
gastrointestinal treatment through October 20, 2015—the date that Grievance 1060 was
2
A copy of the grievance that was not assigned a number was submitted by Plaintiff. The
unnumbered grievance will be discussed further in Section 4.B., infra.
MEMORANDUM DECISION AND ORDER - 13
granted by the Health Services Director—against Defendant Young and Defendant
Corizon. (Id.) However, Defendants have met their initial burden of showing that
Grievance 1060 did not exhaust any of Plaintiff’s claims against the other individual
Defendants or his hernia claims against Defendants Young and Corizon, because the
grievance did not refer to such individuals or claims.
Grievance 1358, like Grievance 947, did not include a copy of the concern form as
required by IDOC policy. (Ex. 2 to Plaintiff’s Aff., Dkt. 19-5 at 2; Plaintiff’s Aff. at 3;
Ex. A-2 to Whittington Aff.) Therefore, Defendants have also met their initial burden in
showing that Grievance 1358 did not exhaust any of Plaintiff’s claims.
Finally, Grievance 120 was returned to Plaintiff without action because Plaintiff
had not kept his grievance limited to the space provided. Because doing so is a
requirement of the IDOC grievance policy, Defendants have met their initial burden of
establishing that Grievance 120 did not exhaust any of Plaintiff’s current claims.
B.
Availability of Remedies
As explained above, Defendants have met their initial burden to show that Plaintiff
did not properly exhaust any of his claims other than those identified in Grievance 1060.
The burden now shifts to Plaintiff to raise a genuine issue of material fact regarding
whether administrative remedies were effectively unavailable to him. See Albino, 747
F.3d at 1172.
MEMORANDUM DECISION AND ORDER - 14
i.
The Unnumbered Grievance: Claims against Corizon for Inadequate
Gastrointestinal Treatment from October to December 2015
Plaintiff has satisfied his burden of showing that administrative remedies were
unavailable with respect to the claim identified in the unnumbered grievance, which
Plaintiff submitted to prison authorities on December 21, 2015. Plaintiff has shown that
he filed the grievance but that it was returned to him without action. (See Ex. A-1 to
Whittington Aff., Dkt. 17-4 at 24.) The Grievance Coordinator refused to process the
unnumbered grievance, purportedly because it involved the same issue that Plaintiff had
previously raised in Grievance 1060. However, a comparison of these two grievances
shows that this statement was incorrect.
Grievance 1060 involved the gastrointestinal treatment Plaintiff had been
receiving through October 20, 2015. On the other hand, the unnumbered grievance was
filed in December and states that Plaintiff’s treatment for his intestinal problems have
been “[g]oing on 4 months now,” that Plaintiff is dissatisfied with his continued treatment
for those problems, and that Plaintiff believes his current treatment (which would include
the treatment he received after he exhausted Grievance 1060) was “only making things
worse.” (Plaintiff’s Aff. at 7; Ex. 3 to Plaintiff’s Aff., Dkt. 19-6 at 4.) This is plainly a
complaint about the ongoing care Plaintiff was receiving as of the date of the
unnumbered grievance—not about the previous treatment, or lack thereof, identified in
Grievance 1060. Because prison staff improperly refused to process the unnumbered
grievance, Plaintiff has met his burden of showing that he was prevented from properly
exhausting the claim identified in that grievance—inadequate gastrointestinal treatment,
MEMORANDUM DECISION AND ORDER - 15
from October to December 2015, against Defendant Corizon.3 See Albino, 747 F.3d at
1172-73. Therefore, this claim is excused from exhaustion.
ii.
Remaining Claims
Plaintiff’s has not satisfied his burden of establishing a genuine issue of material
fact as to the exhaustion of any claims other than those set forth in the unnumbered
grievance (and in Grievance 1060).
Plaintiff first contends that the IDOC’s grievance policy is not readily available to
inmates. Although Whittington states that “each offender receives both written and verbal
instructions regarding the grievance procedures” within 10 days of arriving at the prison
(Whittington Aff. at ¶ 4), the Court will accept, for purposes of this decision, Plaintiff’s
assertion that he did not receive a copy of the grievance policy directly from prison
authorities.
However, that assertion does not establish a genuine issue of material fact.
Plaintiff acknowledges he was informed by prison officials that he could review the
policy by requesting it from a staff member, though he states generally that inmates “are
not even provided with ample time to actually review the entire policy.” (Plaintiff’s Aff.,
Dkt. 19-3, at 2.) Plaintiff thus had access to the policy if he chose to review it. Plaintiff
does not contend that he never reviewed the grievance policy. And regardless of how
much time Plaintiff might have spent reviewing that policy, the fact that Plaintiff properly
3
The unnumbered grievance does not refer to any individual Defendant, and so any claims against
them regarding Plaintiff’s medical treatment from October to December 2015 are unexhausted. (See
Whittington Aff. ¶ 6 (stating that policy requires a grievance to “contain ‘specific information including
[the] nature of the complaint, dates, places, and names.’”).)
MEMORANDUM DECISION AND ORDER - 16
exhausted Grievance 1060 proves that Plaintiff knew how to navigate the prison
grievance system. Therefore, that Plaintiff allegedly did not have his own physical copy
of the grievance process is irrelevant.
Plaintiff also asserts that the IDOC’s grievance process is “ludicrous” and
“ridiculous” because the staff member who initially responds to the grievance is generally
the same staff member who answered the concern form. (Plaintiff’s Aff. at 4.) Plaintiff
appears to be arguing that the grievance process is futile because there is no reason why
the first level response to the grievance would ever be different from the answer given in
the concern form.
However, a belief that the grievance system is futile is insufficient to excuse the
exhaustion requirement under the PLRA. Nunez, 591 F.3d at 1231. The only potential
exception arises when the grievance process “operates as a simple dead end—with
officers unable or consistently unwilling to provide any relief to aggrieved inmates.”
Ross, 136 S. Ct. at 1859. Here, Grievance 1060 was granted, establishing that inmates can
and do obtain relief through the grievance process. Therefore, Plaintiff has not raised a
genuine dispute of material fact as to whether the IDOC’s grievance process is a simple
dead end. See id. The Court also notes that the first level responder on the grievance is
not the person who issues a decision on the grievance—it is the reviewing authority who
decides the grievance. Therefore, it is irrelevant that the first level responder may be the
same individual who answered the concern form, and Plaintiff has not raised a genuine
MEMORANDUM DECISION AND ORDER - 17
dispute of material fact as to exhaustion of his claims (other than the claims identified in
Grievance 1060 and the unnumbered grievance).
5.
Conclusion
For the foregoing reasons, most of Plaintiff’s claims are unexhausted and will be
dismissed without prejudice.
ORDER
IT IS ORDERED:
1.
Defendants’ Motion for Partial Summary Judgment (Dkt. 17) is
GRANTED IN PART as set forth above.
2.
All of Plaintiff’s claims—other than (1) Plaintiff’s claim, of inadequate
medical treatment for gastrointestinal problems, against Dr. Young for the
treatment Plaintiff received through October 20, 2015, and (2) Plaintiff’s
claim, of inadequate medical treatment for gastrointestinal problems,
against Corizon for the treatment Plaintiff received through December 22,
2015—are DISMISSED without prejudice. All Defendants except
Defendants Young and Corizon are DISMISSED from this case.
DATED: November 28, 2016
_________________________
B. Lynn Winmill
Chief Judge
United States District Court
MEMORANDUM DECISION AND ORDER - 18
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