Gallegos v. Correctional Medical Services et al

Filing 26

MEMORANDUM DECISION AND ORDER granting 13 Motion to Dismiss; denying 15 Motion to Deny Dismissal; denying 18 Motion for Summary Judgment; granting 20 Motion for Extension of Time to File; granting 23 Motion for Leave to File. This case is dismissed with prejudice. 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

ANDY GALLEGOS,
Case No. 3:10-cv-00300-BLW
Plaintiff,
MEMORANDUM DECISION AND
ORDER

v.
CORRECTIONAL MEDICAL
SERVICES; APRIL DAWSON; PAUL
DELAPLAIN; and KEVIN KAAE;
Defendants.

Pending before the Court is a Motion to Dismiss filed by Defendants Correctional
Medical Services, Dawson, and Kaae (CMS Defendants). See Dkt. 13. Also pending are
the following motions filed by Plaintiff: (1) Motion to Deny Dismissal (Dkt. 15); (2)
Motion for Summary Judgment (Dkt. 18); (3) Motion for Extension of Time (Dkt. 20);
and (4) Motion for Leave to Supplement Plaintiff’s Motion to Deny Dismissal (Dkt. 23).
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
of avoiding further delay, and because the Court conclusively finds that the decisional
process would not be significantly aided by oral argument, this matter shall be decided on

MEMORANDUM DECISION AND ORDER - 1

the record before this Court without oral argument. See D. Idaho Local Rule 7.1(b). The
Court concludes that Plaintiff did not exhaust his administrative remedies and will
dismiss this case without prejudice.
PROCEDURAL BACKGROUND
Plaintiff is a prisoner in the custody of the Idaho Department of Correction
(IDOC), currently incarcerated at Idaho Correctional Institution in Orofino (ICI-O). At
all times relevant to Plaintiff’s Complaint, he was incarcerated at Idaho Maximum
Security Institution (IMSI). Plaintiff, a diabetic, developed a sore on the second toe of his
left foot, causing a severe infection. Compl., Dkt. 3-1 at 1. He alleges that at IMSI he
received inadequate medical care in violation of the Eighth Amendment’s prohibition
against cruel and unusual punishment and that, as a result, his toe had to be amputated.
Initial Review Order, Dkt. 7 at 2-4.
Plaintiff filed this civil rights suit under 42 U.S.C. § 1983 against the CMS
Defendants. Plaintiff also brought claims against Physician’s Assistant Paul Delaplain,
who has not yet been served with the Complaint.1 In addition to his federal claims,
Plaintiff also asserted state law negligence and medical malpractice claims against all the
defendants.
On February 28, 2011, the CMS Defendants moved to dismiss this case for failure
to exhaust administrative remedies. Mot. to Dismiss, Dkt. 13. On March 9, 2011,

1

On December 30, 2010, counsel for the CMS Defendants waived service and notified the Court
that counsel is not representing Defendant Delaplain. Dkt. 11.

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Plaintiff filed his response and also moved for a denial of dismissal. Mot. to Deny
Dismissal, Dkt. 15. On March 23, 2011, the CMS Defendants filed their reply in support
of their Motion to Dismiss. Reply, Dkt. 16. On April 1, 2011, Plaintiff filed another
document – purportedly an additional reply to the CMS Defendants’ Motion to Dismiss –
which also contained a request for summary judgment. Reply to Defs’ Reply and Mot. for
Summ. Jmt., Dkt. 18.
Plaintiff then filed a Motion for an Extension of Time. The CMS Defendants
opposed the motion because “briefing on the issue of exhaustion was complete” and
Plaintiff had not identified “what filing he needs further time to oppose.” Opp. to Mot.
for Ext. of Time, Dkt. 21 at 2. Plaintiff answered this question on June 6, 2011, when he
moved to supplement his Motion to Deny Dismissal. Mot. for Leave to Suppl., Dkt. 23.;
see also Pl’s Suppl. Reply and Objection, Dkt. 23. The CMS Defendants oppose the
Motion to Supplement.
All motions are now ripe for adjudication.
PLAINTIFF’S MOTION FOR EXTENSION OF TIME
and MOTION TO SUPPLEMENT
Plaintiff’s Motion for an Extension of Time will be granted, and his Motion to
Supplement is deemed timely. The Court will also grant the Motion to Supplement.
Instead of simply opposing the CMS Defendants’ Motion to Dismiss, Plaintiff
responded with a Motion to Deny Dismissal. This is not normally the process followed,
because such an approach would allow the party opposing a motion to file what is, in

MEMORANDUM DECISION AND ORDER - 3

essence, an extra brief. The CMS Defendants are correct that Local Rule 7.1 allows only
three briefs when a motion is filed: (1) the moving party’s memorandum in support of the
motion; (2) the non-moving party’s response in opposition to the motion; and (3) the
moving party’s reply in support of the motion. However, Plaintiff is proceeding pro se,
and the Court will not deny him his opportunity to fully present his evidence and
arguments merely because he has not strictly complied with the Court’s procedural rules.
The Court has therefore considered 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).
Plaintiff’s Motion for Summary Judgment is premature, because there is nothing in
the record yet regarding the merits of the case other than Plaintiff’s allegations in the
Complaint. The CMS Defendants have not yet answered, nor were they required to do so
before the Court considered their Motion to Dismiss. Initial Review Order at 10.
Plaintiff’s Motion for Summary Judgment will be denied.
MEMORANDUM DECISION AND ORDER - 4

CMS DEFENDANTS’ MOTION TO DISMISS
1.

Exhaustion Requirements
Pursuant to the Prison Litigation Reform Act of 1995 (PLRA),2 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

2

110 Stat. 1321-71, as amended, 42 U.S.C. § 1997e, et seq.

MEMORANDUM DECISION AND ORDER - 5

confinement until all available administrative remedies have been exhausted.” This
exhaustion requirement applies to claims regarding prison medical care. See Drennon v.
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
MEMORANDUM DECISION AND ORDER - 6

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
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 Sheryll Byrne, Dkt. 13-2 at ¶5. If the issue cannot be resolved informally
through the use of a Concern Form, the inmate must then file a Grievance Form. Id. at
¶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. at ¶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, the
inmate 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. at ¶9. In cases of
medical grievances, the appellate authority is the Regional Manager or Vice President of
MEMORANDUM DECISION AND ORDER - 7

the medical contractor. Id. at ¶10. Not until the completion of all three of these steps –
Concern Form, Grievance Form, and grievance appeal – is the grievance system
exhausted. Id. at ¶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. at
¶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.

Plaintiff Did Not Exhaust His Administrative Remedies
Plaintiff discovered the sore on his toe on November 18, 2008. Compl., Dkt. 3-1 at

1. At issue, therefore, is Plaintiff’s use of the IDOC grievance process from that date
through April 16, 2009, when Plaintiff’s toe was amputated.
A.

Findings Regarding Plaintiff’s Use of the Grievance Process

Sheryll Byrne, the current Grievance Coordinator at IMSI, searched the grievance
database for any grievances filed by Plaintiff.3 Byrne Affidavit at ¶14. According to the
exhibits attached to the Byrne Affidavit, on March 3, 2009 Plaintiff attempted to file a
grievance regarding the treatment of his infected toe. Ex. C to Byrne Affidavit, Dkt. 13-2
at 31. This grievance was returned to Plaintiff “without action being taken” because
3

Defendants initially included in their Motion grievance records and argument in connection
with another inmate whose last name is also Gallegos, even though his first name and prisoner number are
obviously different from Plaintiff’s. Plaintiff pointed out that these records did not pertain to him, and
Defendants have since withdrawn any argument regarding the grievance records of that other inmate. See
Mot. to Deny Dismissal at 2; Defs’ Reply re Mot. to Dismiss, Dkt. 16 at 2-3.

MEMORANDUM DECISION AND ORDER - 8

Plaintiff did not submit copies of any Concern Forms showing his attempts to resolve the
issue informally. Id. at 30. Plaintiff apparently corrected this deficiency and resubmitted
the grievance, because the record includes a Grievance Form showing that prison officials
considered the resubmitted grievance, received on March 9, 2009,4 on the merits. Id. at
42-44.
The grievance was logged as Grievance Number IM090000173. Id. at 42. The
Director of Nursing told Plaintiff on March 16, 2009 that his care was appropriate
because he had “seen the PA, the provider, have had X-rays, wound clinics, diabetic
checks, and medication for your toe.” Id. The Health Services Administrator concurred
with the Director’s response and denied Plaintiff’s grievance on March 26, 2009. Id. at
43. Therefore, any appeal of this grievance had to be filed no later than five days later, on
March 31, 2009.
But according to the documentation submitted by Plaintiff with his Motion to
Deny Dismissal, Plaintiff did not appeal the denial of the March 3 grievance until May
11, 2009. See Exs. B1 and B2 to Pl’s Mot. to Deny Dismissal, Dkt. 15-1 at 2-3. On May
13, 2009, the appeal was returned to Plaintiff “without action being taken” because
Plaintiff “did not file the grievance . . . appeal within the time limit.” Ex. C to Byrne
Affidavit, Dkt. 13-2 at 34. Then-Grievance Coordinator Kim Reischman added a
handwritten note: “5 days from receipt of level 2 Response (3-26-09).” Id.

4

To avoid confusion, the Court will refer to the resubmitted grievance as “the March 3
grievance,” as this is the date appearing on the initial grievance form submitted by Plaintiff.

MEMORANDUM DECISION AND ORDER - 9

Two days later, on May 15, 2009, Plaintiff attempted to file another grievance,
describing his dissatisfaction with his medical treatment in terms virtually identical to
those in the March 3 grievance.4 Id. at 37. Plaintiff also sent a concern form to
Reischman informing her that he never received any responses to his Concern Forms
from the medical staff, but included his own copies of those forms in support of the
grievance. Ex. to Mot. to Deny Dismissal, Dkt. 23-1 at 1.
On May 18, 2009, Reischman returned the May 15 grievance to Plaintiff, also
“without action being taken.” Ex. C to Byrne Affidavit at 36. Reischman told Plaintiff,
“Your administrative remedies have been exhausted on this issue. Previous grievance . . .
appeal number: IM090000173 was on this same topic.” Id. That same day, Reischman
also responded to Plaintiff’s May 15 concern form and told him that he was “unable to

4

In describing the problem in the March 3 grievance, Plaintiff stated,

I have to have my toe cut off, because it got infected. I was asking medical day in and
day out to look at my toe cause it didn’t look good. And all the P.A. said was to keep it
clean and gave me these little packets of onitment [sic]. I told them there was puss [sic]
coming out of it and it was swallon [sic]. Dr. Dawson even looked at it too, and still
didn’t do anything at first until it was way to [sic] late. And now my toe has to be
removed.
Ex. C to Byrne Affidavit, Dkt. 13-2 at 44.
The May 15 grievance was quite similar:
I had to have my toe cut off, because it got infected. I was asking medical day in and day
out to look at my toe. Because it was all red and swollen up. And all the P.A. said was
to keep it clean and gave these packets of onitment [sic] to put on it. I told them there
was puss [sic] coming out of it and it was bleeding a lot too. Dr. Dawson looked at it and
still didn’t do anything until it was way to [sic] late. I had my toe cut off on April-162009.
Id. at 37.

MEMORANDUM DECISION AND ORDER - 10

grieve this issue again. IM090000173 was on the exact same issue.” Ex. to Mot. to
Suppl. at 1.
In his Motion to Deny Dismissal, Plaintiff submitted copies of seven Concern
Forms regarding his medical treatment, but he does not assert that he filed a medical
grievance with respect to any of those Concern Forms other than (1) Grievance Number
IM090000173 and (2) his attempted May 15 grievance. (See Exhibits I-L to Motion to
Deny Dismissal, Dkt. 15-1, at 10-13.)
B.

Analysis

The CMS Defendants argue that because Plaintiff’s appeal of the March 3
grievance was not filed until May 11, 2009, Plaintiff has failed to properly exhaust his
administrative remedies regarding the medical treatment he received for his infected toe.
Defs’ Mem. for Mot. to Dismiss, Dkt. 13-1 at 13-14. They also argue that the May 15
grievance was “simply a backdoor attempt to grieve a claim and issue that had previously
been addressed by Mr. Gallegos, but which he had failed to properly grieve.” Id. at 14.
The Court agrees with the CMS Defendants that Plaintiff did not timely appeal the
denial of the March 3 grievance. Instead of filing the appeal within five days of the
grievance denial, Plaintiff waited approximately six weeks to appeal. Because Plaintiff
did not meet the IDOC’s deadline with respect to the grievance appeal, he did not
properly exhaust his administrative remedies.
Plaintiff counters that he “has diligently, in good faith pursued an adequate
grievance process.” Mot. to Deny Dismissal, Dkt. 15 at 2. However, he does not offer an
MEMORANDUM DECISION AND ORDER - 11

explanation of why he failed to file a timely appeal of the March 3, 2009 grievance, other
than his claim that he “fully exhausted his administrative remedies for officials
interfeared [sic] with his exhaustion process at no fault of his own.” Suppl. Reply at 2.
For this official interference argument, Plaintiff relies primarily on Reischman’s
statements on May 18, 2009 that Plaintiff had exhausted his administrative remedies. He
claims that Reischman’s response to the May 15 Concern Form actually constitutes “the
Level - 3 Appellate Authority Response” to his grievance. Suppl. Reply at 3. Thus, goes
the argument, he exhausted all three levels of the grievance process: Concern Form,
Grievance Form, and grievance appeal.
The grievance policy is clear, however, that a Concern Form is the first step of the
process, the purpose of which is to allow inmates and staff members to resolve issues
informally before the inmate files a grievance; it is not the final step. Ex. B to Byrne
Affidavit, Dkt. 13-2 at 12-24. Additionally, Reischman’s response to Plaintiff’s Concern
Form did not pertain to the March 3 grievance, but rather the new grievance that Plaintiff
filed on May 15, 2009. Ex. to Mot. to Suppl. at 1.
Plaintiff also states that it was Reischman’s fault that he did not properly exhaust
because she informed him that his remedies were, in fact, fully exhausted. Suppl. Reply at
3. If the May 11 grievance appeal had not already been untimely, the Court would agree
with Plaintiff. An official’s statement to an inmate that the inmate’s remedies have been
exhausted – and the prisoner’s reliance on that statement to cease pursuing an
administrative remedy – would excuse the inmate from any further exhaustion. See, e.g.,
MEMORANDUM DECISION AND ORDER - 12

Nunez v. Duncan, 591 F.3d 1217, 1229 (9th Cir. 2010) (holding that failure to exhaust is
excused “[w]here prison officials have effectively prevented a prisoner from using the
available procedures”); Brown, 422 F.3d at 935 (“[A] prisoner need not press on to
exhaust further levels of review once he has . . . been reliably informed by an
administrator that no remedies are available.”). One can easily imagine a situation where
such a statement would lull the inmate into believing that he did not need to pursue any
further remedies. Therefore, if Reischman’s response actually induced Plaintiff to miss a
deadline or otherwise forgo using the grievance process, the CMS Defendants would not
be entitled to rely on an exhaustion defense.
But that is not the situation in this case. Plaintiff’s appeal of the March 3
grievance was untimely because it was not filed within five days after receiving the
response to the grievance. The new grievance that Plaintiff filed on May 15, 2009 could
not cure this deficiency because the appeal deadline for the March 3 grievance had
already passed. Therefore, nothing Reischman said to Plaintiff on May 18, 2009 could
have adversely affected Plaintiff’s ability to comply with the grievance system’s
deadlines or with any other procedural rule.
Because Plaintiff did not properly complete the grievance process with respect to
his medical treatment, his § 1983 claims against the CMS Defendants 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 negligence and medical practice claims under state law must
also be dismissed. I.C. § 19-4206(1).
MEMORANDUM DECISION AND ORDER - 13

4.

Defendant Delaplain
Even though Defendant Delaplain 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
Delaplain. Thus, the Court will dismiss those claims as well.
ORDER
IT IS ORDERED:
1.

Plaintiff’s Motion for Extension of Time (Dkt. 20) is GRANTED.

2.

Plaintiff’s Motion for Leave to Supplement Plaintiff’s Motion to Deny
Dismissal (Dkt. 23) is GRANTED.

3.

Plaintiff’s Motion for Summary Judgment (Dkt. 18) is DENIED.

4.

Plaintiff’s Motion to Deny Dismissal (Dkt. 15) is DENIED.

5.

The CMS Defendants’ Motion to Dismiss (Dkt. 13) is GRANTED. This
case is DISMISSED without prejudice.

DATED: August 23, 2011

Honorable B. Lynn Winmill
Chief U. S. District Judge

MEMORANDUM DECISION AND ORDER - 14