Garza v. Correct Care Solutions

Filing 35

ORDER ENTERED: The motion 16 of defendants CCS for summary judgment is sustained and the claims against all defendants are dismissed without prejudice. Plaintiff's pending motions 23 , 26 & 28 are denied. Signed by Senior District Judge Sam A. Crow on 6/28/2011. (Mailed to pro se party Jose Garza by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JOSE GARZA,
Plaintiff,
v.

CASE NO.

09-3146-SAC

CORRECT CARE
SOLUTIONS, et al.,
Defendants.
O R D E R
This civil rights action, 42 U.S.C. § 1983, is before the court
upon the Motion for Summary Judgment (Doc. 16) of defendants Correct
Care Solutions (CCS).

The motion is based upon plaintiff’s alleged

failure to exhaust administrative remedies.

Plaintiff was fully

informed of the following summary judgment standards. Prisoners are
required by federal law to exhaust prison grievance procedures prior
to filing suit in federal court.

See 42 U.S.C. § 1997e(a); Jones v.

Bock, 549 U.S. 199, 202 (2007);1 Hines v. Sherron, 372 Fed.Appx.
853, 856 (10th Cir. 2010)(Section 1997e(a) “requires a prisoner to
exhaust all of his administrative remedies prior to filing a
lawsuit.”)(citing Porter v. Nussle, 534 U.S. 516, 524 (2002)); Booth
v. Churner, 532 U.S. 731, 741 (2001).

The statutory exhaustion

requirement of § 1997e(a) is mandatory, and the district court is
not authorized to dispense with it.

Hines, 372 Fed.Appx. at 856

(citing Beaudry v. Corr. Corp. of Am., 331 F.3d 1164, 1167 n. 5 (10th
Cir. 2003)(per curiam), cert. denied, 540 U.S. 1118 (2004)).

It

1
Section 1997e(a) provides in pertinent part: “No action shall be
brought with respect to prison conditions under section 1983 . . . by a prisoner
. . . until such administrative remedies as are available are exhausted.”

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.”
532.

Porter, 534 U.S. at

In order to satisfy the exhaustion prerequisite a prisoner

must timely exhaust all steps of a prison system’s grievance
procedure, substantial compliance is not sufficient.

Hardeman v.

Sanders, 396 Fed.Appx. 551, 554 (10th Cir. 2010)(citing Little v.
Jones, 607 F.3d 1245, 1249 (10th Cir. 2010)); Jernigan v. Stuchell,
304 F.3d 1030, 1032 (10th Cir. 2002).

Any claim that was not

properly exhausted in full compliance with the prison’s established
Id. at 1031-33.

grievance process is barred and must be dismissed.
Defendants’ motion was filed on July 9, 2010.

Mr. Garza, who

is proceeding pro se and may have other impediments, managed to file
a timely pleading (Doc. 19) in which he stated that the Motion to
Dismiss was based upon attachments to the Martinez Report including
medical records and that he had not been served with a copy of those
attachments.

He stated that he needed the attachments in order to

respond to defendants’ motion because prison officials refused to
provide him with copies of his medical records.

Therein, he also

properly requested an extension of time to respond to defendants’
motion.

On November 1, 2010, the court granted plaintiff an

extension of thirty (30) days.

On November 16, 2010, plaintiff

filed another timely Motion for Extension of Time (Doc. 26) in which
he stated that defendants had not complied with the court’s Order to
serve him with a copy of the Martinez Report.2

2

Defendants did not

This motion is denied as moot, since Mr. Garza has had more than
enough additional time and has managed to submit numerous responsive pleadings and
documents. In at least one, he even indicates that he has submitted all the
materials he has available.

2

file a Certificate of Service of the Martinez Report until December
14, 2010.

Before and after being served with a copy of the Report

and attachments, plaintiff submitted eight pleadings with exhibits
attached (Docs. 24, 25, 27, 29, 31, 32, 33, 34),3 which are plainly
his efforts to respond to defendants’ Motion for Summary Judgment.
These

materials

were

filed

Extension of Time pending.

while

he

had

a

timely

Motion

for

Accordingly, defendants’ Motion for

Summary Judgment is not unopposed.
The court has considered defendants’ motion together with all
of plaintiff’s pro se filings submitted in response, and finds that
the motion should be granted.

In a prior Order entered November 1,

2010, the court treated defendants’ motion as one for summary
judgment, and found that defendants had met their initial burden of
demonstrating that “no disputed material fact exists” regarding the
affirmative defense of failure to exhaust administrative remedies.
Specifically, the court found that defendants CCS had “established
that plaintiff did not file a proper grievance on any of the claims
raised in his Complaint.” In the same order, Mr. Garza was directed
to

“demonstrate

with

specificity

the

existence

of

a

disputed

material fact” on the issue of exhaustion. He was cautioned that if
he “fails to make such a showing, the affirmative defense bars his
claim, and defendant is then entitled to summary judgment as a
matter of law.” Plaintiff was further advised that in order to show
exhaustion, he was required to provide information as to specific
issues presented in proper grievances to particular persons, the
dates

of

such

grievances

and

appeals,

3

and

the

administrative

The court directed the clerk’s office to docket filings as “exhibits”
that were plainly intended to submit exhibits of grievances.

3

responses.
The court has examined plaintiff’s Notice of Acknowledgement
(sic) of Show Cause Order (Doc. 22) and the eight filings with
exhibits attached that have been submitted by Mr. Garza in an
obvious attempt to comply with the court’s order and to oppose
defendants’ Motion for Summary Judgment.

In his Notice, Mr. Garza

again alleges that he was not aware of an available grievance
procedure and that he was afraid to say anything at LCF.

He also

alleges that he went to the clinic seeking medical treatment for his
injuries “plenty of times.”
Doc. 24 has no case caption or title.4

However, on the top

sheet, Mr. Garza states that he has attached “almost everything he
has saved up.”

He alleges that he has written the Governor, the

KDOC, Legal Services for Prisoners, The Defender Project, the ACLU,
and a private attorney, and that he filled out a sick call slip and
a

grievance

on

a

work

injury.

He

regarding hernia pain and constipation.

exhibits

several

requests

He also attaches medical

bills for a hernia operation in 2010, and some grievances from 2009
and 2010.

None of these exhibits are shown to relate to either the

2003 assault or plaintiff’s immediate requests for medical treatment
for injuries from that assault. Plaintiff also attaches information
about the KDOC Sexual Assault Helpline on which he has written that
he made many calls, but never got a response.

He also refers to

grievances and letters concerning mail problems.

None of the

allegations or exhibits in this document shows that Mr. Garza timely

4
Mr. Garza has been repeatedly directed in the several cases filed by
him that he must put the case number and caption on the top of the first page of
any filings he submits to this court. He has ignored this directive.

4

and properly sought administrative relief on his claims, first
through his unit team, then the warden, and finally from the
Secretary of Corrections.
Doc. 25 has no caption or case number.

The top sheet contains

the same type of allegations as Doc. 24, and the attached exhibits
are again form 9s’ from 2010.

In several of these grievances Mr.

Garza requests to “speak to someone” about his injury and to see his
medical records.

Doc. 27 has no caption or case number.

The

attachments are 2010 grievances seeking a copy of an “injury claim”
he filed in November 2009 and all his medical records.

These

documents do not show that Mr. Garza timely and properly sought
administrative relief on his claims in this action.5
Document 29 has no caption.

Mr. Garza’s complaints that he

cannot now obtain his medical records do not prove that he timely
exhausted administrative remedies on his claims in the complaint.
Doc. 31 has no caption.

As plaintiff states therein, he is

“writing and sending a few sick call’s slips.”

In this letter

plaintiff complains regarding recent attempts to see the doctor.
His allegations and exhibits of 2010 medical requests do not satisfy
his burden of showing exhaustion of administrative remedies on his
claims.
Doc. 32 has no caption.

The attached postage receipts do not

establish that plaintiff followed each step of the administrative
process to exhaust the available remedies in a proper and timely

5
Exhaustion must be completed before the filing of the lawsuit, not
while it is pending. See Porter, 534 U.S. at 523-25. Allowing an inmate to
exhaust instead of dismissing his action would be contrary to the PLRA’s
requirement that a prisoner exhaust before he files a federal lawsuit.
See
Jernigan, 304 F.3d at 1032-33.

5

fashion.
Doc. 33 has no caption, but simply provides “here are some more
sick call slips.” The attached healthcare requests from 2011 do not
show exhaustion on plaintiff’s claims. Moreover, they indicate that
he is receiving medical treatment for his current conditions.
Doc. 34 has no caption and also has “more of (plaintiff’s) sick
call slips” attached.

These 2011 requests do not show timely

exhaustion of plaintiff’s claims that arose in 2003 or up to the
time of the filing of his complaint.
Having considered all materials filed by plaintiff in response
to defendants’ summary judgment motion asserting the defense of
failure to exhaust, the court finds that defendants CCS are entitled
to judgment as a matter of law.
Mr.

Garza

has

not

shown

The conclusion in inescapable that

that

he

filed

a

proper

and

timely

administrative grievance and appeals at the LCF regarding the
alleged

2003

assault

in

accord

with

the

available

prison

administrative processes. In fact, Mr. Garza admits that he did not
pursue administrative remedies while at the LCF.

Unfortunately,

plaintiff consciously avoided seeking administrative relief at a
time when an effective investigation and remedy might have been
provided, and he continued to avoid seeking either administrative or
judicial relief for years.
Mr. Garza again attempts to excuse his failure to exhaust by
alleging that he feared for his safety and that he contacted the
prison’s hot-line to no avail.

The court already held that these

bald allegations with no facts in support are simply insufficient to
excuse

his

intentional

grievance process.

failure

to

follow

the

administrative

As the court also noted, KDOC inmates are
6

provided at orientation with information regarding administrative
remedies and apparently on reporting sexual assault by other means.
Mr. Garza’s conclusory statement that he was not aware of how to
pursue administrative remedies is not sufficient in light of the
pertinent prison regulations.6
The same is true with regard to Mr. Garza’s claim that he was
denied immediate medical treatment for injuries that resulted from
the 2003 assault.

Plaintiff has not produced a single grievance

that he filed with his unit team at the LCF, then to the warden, and
finally to the Secretary of Corrections claiming that he was being
denied medical treatment for injuries from a sexual assault or for
any injury.

Nor does he present such documentation regarding

treatment he sought at the LCMHF.7

Because Mr. Garza did nothing to

pursue administrative remedies as to his medical treatment and did
not notify LCF or CCS staff through the grievance process of his

6
Under IMPP 10-103, had Mr. Garza properly and credibly reported the
alleged incident in a timely manner, it would have triggered an immediate
investigation, preservation of the crime scene, a prompt medical forensic
examination at a community facility, and services to the inmate.
7

Plaintiff’s interview and KDOC medical records provided with the
Martinez Report indicate that he informed prison medical staff that his medical
history prior to KDOC custody included an injury on the job in 1998 when a piece
of metal entered and tore his anus and surgery to repair his sphincter. His
medical records also indicate that he informed prison medical staff that he had
been treated on the street for anal polyps, fissures, and rectal bleeding.
Plaintiff stated in his interview that he had three surgeries while in KDOC
confinement.
His records indicate that he had many examinations for chronic
rectal prolapse and bleeding and was provided numerous medications, a colonoscopy,
a hemorrhoidectomy, surgery for recurrent prolapse, and surgery for a ventral
hernia. There is no indication in the record that prior to the filing of this
complaint, Mr. Garza either reported or was diagnosed with an internal injury
caused by a sexual assault. The court makes no findings as to the correctness of
these records, but simply notes that Mr. Garza was in fact treated for the very
symptoms he claims resulted from a sexual assault as symptoms of other preexisting ailments. The court expresses no opinion as to the adequacy of that
treatment. In order to challenge the medical treatment that he has received for
his several conditions, other than the alleged sexual assault, he must file a
complaint naming the defendants that have treated him for his recognized
conditions and allege facts showing how each named defendant was deliberately
indifferent to his serious medical needs. Medical malpractice is not grounds for
relief under 42 U.S.C. § 1983.

7

belief that he was receiving constitutionally inadequate medical
attention, there could be no investigation of this claim.
The court finds that Mr. Garza has failed to demonstrate with
specificity the existence of a disputed material fact on the issue
of exhaustion in that he has not provided information as to specific
issues presented in proper grievances to particular persons, the
dates

of

responses.

such

grievances

and

appeals,

and

the

Accordingly, the court concludes that

administrative
the affirmative

defense urged by defendants bars plaintiff’s claims, and defendants
are entitled to summary judgment as a matter of law.
Under 28 U.S.C. § 1915(e)(2)(B), the court has a continuing
responsibility
pauperis.

to

screen

prisoner

complaints

brought

in

forma

Pursuant to this authority, the court finds that Mr.

Garza has never adequately described any of the 3 participants in
the alleged sexual assault, which he claims occurred in 2003 at the
LCF.

Nor has he substituted the name of the guard who allegedly

participated for the John Doe prison guard defendant and provided
sufficient information for service of process.

Consequently, no

timely service has been made upon any individual who may be held
personally liable for the alleged assault.8

Accordingly, this

action is dismissed, without prejudice, as against defendant John
Doe.
Plaintiff has filed a Motion for Evidentiary Hearing (Doc. 28).
On the top half of the first page of this motion, Mr. Garza requests
a hearing so that “he may review all of his legal documents” that he

8
It is the plaintiff’s responsibility to provide the U.S. Marshal with
the address of the person to be served.
See Fields v. Oklahoma State
Penitentiary, 511 F.3d 1109, 1113 (10th Cir. 2007).

8

has mailed to this court.

This is not grounds for an evidentiary

hearing, and the motion is denied.

The bottom half of the page is

an imbedded statement that another inmate has witnessed Mr. Garza in
pain and bleeding and believes his allegations.

Even if this were

a properly submitted and sworn affidavit, no factual basis for Mr.
Malone’s statements is provided and his statement, in any event,
does not show that Mr. Garza exhausted his administrative remedies.9
For all the foregoing reasons, the court sustains defendants’
Motion for Summary Judgment.

This action is dismissed and all

relief is denied.
Mr. Garza also filed a another Motion to Appoint Counsel (Doc.
23), which is denied as moot.
IT IS THEREFORE BY THE COURT ORDERED that the motion of
defendants CCS for summary judgment (Doc. 16) is sustained, and the
claims against all defendants are dismissed, without prejudice.
IT IS FURTHER ORDERED that plaintiff’s pending motions (Docs.
23, 26, 28) are denied for the reasons stated herein.
IT IS SO ORDERED.
Dated this 28th day of June, 2011, at Topeka, Kansas.

s/Sam A. Crow
U. S. Senior District Judge

9

Mr. Garza attempts toward the end of this filing to inquire about a
different case that he filed, which was closed on April 26, 2011, with notice to
plaintiff. Any questions regarding that separate case must be submitted in that
case in a motion with the case caption and case number clearly written at the top
of the first page.
Mr. Garza has repeatedly been informed of this basic
requirement.

9