PETERSON v. ROGAN et al
Filing
41
Entry Granting Motion for Summary Judgment - The consequence of Peterson's failure to properly exhaust his administrative remedies, in light of 42 U.S.C. § 1997e(a), is that his claim should not have been brought and must now be dismisse d without prejudice. Ford, 362 F.3d at 401("We therefore hold that all dismissals under § 1997e(a) should be without prejudice."). The motion for summary judgment 29 is granted. Judgment consistent with this Entry shall now issue. (See Entry.) Copy to plaintiff via US Mail. Signed by Judge Jane Magnus-Stinson on 9/12/2012. (RSF)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
LAWRENCE PETERSON,
Plaintiff,
vs.
DOCTOR MICHAEL ROGAN, and
CORRECTIONAL MEDICAL
SERVICES,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
No. 2:11-cv-0007-JMS-DML
Entry Granting Motion for Summary Judgment
On or about January 10, 2011, Lawrence Peterson filed this lawsuit against
Corizon, Inc. (f/k/a Correctional Medical Services, Inc.) (hereinafter “Corizon”), which
contracts with the State of Indiana to provide medical services to inmates, alleging
that his Eighth and Fourteenth Amendment rights were violated pursuant to 42
U.S.C. § 1983. Specifically, Peterson alleges that he was denied proper Hepatitis-C
treatment.
Corizon now seeks summary judgment on its affirmative defense that
Peterson failed to properly exhaust his administrative remedies prior to filing this
lawsuit. The motion is also deemed applicable to the other defendant, Dr. Michael
Rogan, who has not yet appeared in this action. See Malak v. Associated Physicians,
Inc., 784 F.2d 277, 280 (7th Cir. 1986) (“Where one defendant files a motion for
summary judgment which the court grants, the district court may sua sponte enter
summary judgment in favor of additional non-moving defendants if the motion raised
by the first defendant is equally effective in barring the claim against the other
defendants and the plaintiff had an adequate opportunity to argue in opposition to
the motion.”). For the reasons explained in this Entry, Corizon has met its burden
under Federal Rule of Civil Procedure 56(a) and the motion for summary judgment
[29] must be granted.
I.
Summary Judgment Standard
The motion for summary judgment must be granted if “the movant 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 substantive law identifies that
facts are material. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A
dispute about a material fact is genuine only “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Id. If no reasonable
jury could find for the non-moving party, then there is no “genuine” dispute. Scott v.
Harris, 550 U.S. 372 (2007).
II. Applicable Law
In acting on a motion for summary judgment, “[t]he applicable substantive law
will dictate which facts are material.” National Soffit & Escutcheons, Inc., v. Superior
Systems, Inc., 98 F.3d 262, 265 (7th Cir. 1996). The substantive law applicable to the
motion for summary judgment is this:
(1)
The Prison Litigation Reform Act (APLRA@) requires that a prisoner exhaust
his available administrative remedies before bringing a suit concerning prison
conditions. 42 U.S.C. § 1997e(a); Porter v. Nussle, 534 U.S. 516, 524-25 (2002).
This exhaustion requirement “applies to all inmate suits about prison life,
whether they involve general circumstances or particular episodes, and
whether they allege excessive force or some other wrong.” Id., at 532 (citation
omitted). A civil action with respect to “prison conditions” means “any civil
proceeding arising under Federal law with respect to the conditions of
confinement or the effects of actions by government officials on the lives of
persons confined in prison.” 18 U.S.C. § 3626(g)(2).
(2)
In Woodford v. Ngo, 548 U.S. 81, 90 (2006), the Supreme Court held that the
PLRA exhaustion requirement requires “proper” exhaustion: “Administrative
law . . . requir[es] proper exhaustion of administrative remedies, which ‘means
using all steps that the agency holds out, and doing so properly (so that the
agency addresses the issues on the merits).’” Id., (quoting Pozo v. McCaughtry,
286 F.3d 1022, 1024 (7th Cir. 2002)).
(3)
The PLRA's exhaustion requirement creates an affirmative defense and the
burden of proof is on the defendants. Dole v. Chandler, 438 F.3d 804, 809 (7th
Cir. 2006) (citing Dale v. Lappin, 376 F.3d 652, 655 (7th Cir. 2004)).
(4)
When asserted, the defense must be resolved prior to the merits of a claim
being reached. Perez v. Wis. Dep't of Corr., 182 F.3d 532, 536 (7th Cir. 1999).
(5)
“[T]here 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,
212 (2007) (citing Porter, 534 U.S. at 524). When a prisoner has failed to
exhaust administrative remedies on a claim, “the proper remedy is dismissal
of the claim without prejudice.” Id. 549 U.S. at 223–24.
III. Material Facts
The reading of the evidentiary record most favorable to Peterson as the
non-movant, see Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150
(2000), is the following:
•
Wayne Scaife (“Mr. Scaife”) is the Grievance Specialist at the Pendleton
Correctional Facility (“Pendleton”). As a result of his duties as Grievance
Specialist, Mr. Scaife is responsible for both medical and non-medical
grievances filed by Pendleton inmates. Furthermore, as Grievance Specialist,
Mr. Scaife is the custodian of Pendleton’s grievance records, including, but not
limited to, the initial grievance documents filed by inmates, as well as
responses and appeals. Mr. Scaife is familiar with the Department of
Correction’s computer files and records relating to the Offender Grievance
Response System (“OGRE”).
•
The grievance process begins with the offender contacting staff to discuss the
matter or incident subject to the grievance and seeking informal resolution.
If the offender is unable to obtain a resolution of the grievance informally, he
may submit a formal written complaint (Level I) to the Grievance Specialist of
the facility where the incident occurred.
•
If the formal written complaint is not resolved in a manner that satisfies the
offender, he may submit an appeal (Level II) within ten (10) working days
from the date of receipt of the grievance response. If the offender receives no
grievance response within twenty-five (25) working days of the day he or she
submitted the grievance, he or she may appeal as though the grievance had
been denied. In that event, the time to appeal begins on the 26th working day
after the grievance was submitted and ends ten (10) working days later.
•
Exhaustion of the grievance procedure requires pursuing a grievance to the
final step.
•
Peterson, DOC #892938, is currently incarcerated at Pendleton. Peterson
arrived at Pendleton on or about July 21, 2010. Since arriving at Pendleton
Correctional Facility, Peterson has failed to file any grievances related to
Hepatitis-C treatment.
•
Before arriving at Pendleton, Peterson was an inmate at the Wabash Valley
Correctional Facility. The OGRE records reflect that Peterson failed to file any
grievances related to Hepatitis-C treatment while at the Wabash Valley
Correctional Facility.
IV. Discussion
To survive summary judgment, the nonmoving party must establish some
genuine issue for trial such that a reasonable jury could return a verdict in his favor.
Makowski v. SmithAmundsen LLC, 662 F.3d 818, 822 (7th Cir. 2011) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “The nonmovant will
successfully oppose summary judgment only when it presents definite, competent
evidence to rebut the motion.” Vukadinovich v. Bd. of Sch. Trs., 278 F.3d 693, 699
(7th Cir. 2002) (internal quotation and citation omitted).
Peterson argues that summary judgment should not be granted in favor of the
defendants because he did in fact exhaust his administrative grievances. In support
of his argument he submits a declaration [see dkt 33] in which he testifies in relevant
part: “I Plaintiff did exhaust all grievance remedies and procedures while confined at
Wabash Valley Correctional Facility” and “[t]hat Defendants in their response to
Plaintiff’s grievances refused to respond to Plaintiff’s complaint of not being treated
for Hepatitis, but answer’s all other issues not raised.” In support, Peterson attaches
the administrative responses to grievance number 60281. See Exhibit A, dkt 32 at
pp. 5-7. Those administrative responses do not reflect any complaint regarding
Peterson’s Hepatitis C treatment. Peterson’s conclusion that grievance number
60281 was sufficient to exhaust his administrative remedies regarding his Hepatitis
C treatment is contradicted by the record of that grievance and of the administrative
responses to it. The court has examined the offender grievance appeal for grievance
number 60281 signed by Peterson (see dkt 34-1). That appeal does not contain any
mention of Hepatitis-C. Instead, Grievance Number 60281 requests a bottom bunk
pass for diabetes and other heart related problems. Thus, Peterson’s grievance
appeal contradicts his contention that he properly filed and appealed a grievance
related to Hepatitis-C treatment.
In many instances, sworn affidavits, particularly those that are detailed,
specific, and based on personal knowledge are “competent evidence to rebut [a]
motion for summary judgment.” Dale v. Lappin, 376 F.3d 652, 655 (7th Cir. 2004)
(per curiam); see also Dalton v. Battaglia, 402 F.3d 729, 735 (7th Cir. 2005) (“We have
repeatedly stated that the record may include a so-called ‘self-serving’ affidavit
provided that it is based on personal knowledge.”). However, “[w]hen opposing
parties tell two different stories, one of which is blatantly contradicted by the record,
so that no reasonable jury could believe it, a court should not adopt that version of
the facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris,
550 U.S. 372, 380 (2007). That is the case here with regard to whether grievance
number 60281 contained a complaint related to Peterson’s Hepatitis-C treatment.
Peterson’s characterization of his grievance as containing such a complaint is “so
utterly discredited by the record that no reasonable jury could have believed him.”
Id., 550 U.S. at 380-381. The grievance responses and the grievance appeal speak for
themselves.
Peterson’s argument that his grievances were filed at Wabash Valley
Correctional Facility and that Wayne Sciafe, an employee of Pendleton, cannot attest
to grievances filed at other Indiana Department of Correction prison facilities is
without merit. Mr. Scaife’s Affidavit makes clear the following points: (1) he has
access to, and is familiar with, the Department of Correction’s entire computer filing
system, i.e., OGRE, and (2) after reviewing the OGRE files, he determined that
Peterson failed to properly file or appeal a grievance related to Hepatitis-C treatment
while housed at Pendleton or elsewhere. Indeed, Peterson’s contention does not rest
upon the existence of documents to which Mr. Scaife has not had access, but to the
sufficiency of a grievance which is fully documented within the OGRE system.
“Where the record taken as a whole could not lead a rational trier of fact to find
for the nonmoving party, there is no ‘genuine issue for trial.’” Harris, 550 U.S. at 380
(quoting Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87
(1986) (footnote omitted). That is the case here. Peterson failed to file an appeal of a
Hepatitis-C related grievance and has therefore not exhausted the grievance
procedure pursuant to the Offender Grievance Policy. No reasonable person could
conclude otherwise.
V. Conclusion
The consequence of Peterson’s failure to properly exhaust his administrative
remedies, in light of 42 U.S.C. § 1997e(a), is that his claim should not have been
brought and must now be dismissed without prejudice. Ford, 362 F.3d at 401(“We
therefore hold that all dismissals under § 1997e(a) should be without prejudice.”).
The motion for summary judgment [29] is granted. Judgment consistent with
this Entry shall now issue.
IT IS SO ORDERED.
09/12/2012
Date: __________________
_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana
Distribution:
LAWRENCE PETERSON
892938
PENDLETON CORRECTIONAL FACILITY
Inmate Mail/Parcels
4490 West Reformatory Road
PENDLETON, IN 46064
All Electronically Registered Counsel
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?