McDiffett (ID 51141) v. Nance et al
Filing
90
MEMORANDUM AND ORDER granting 83 Motion for Summary Judgment. Signed by Chief District Judge Julie A. Robinson on 2/7/2020. Mailed to pro se party Shawn W. McDiffett by regular mail. (hw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
SHAWN W. MCDIFFETT,
Plaintiff,
v.
Case No. 5:17-3037-JAR-JPO
BEVERLY JACKSON,
Defendant.
MEMORANDUM AND ORDER
This matter is before the Court on Defendant Beverly Jackson’s Motion for Summary
Judgment (Doc. 83). Defendant sent Plaintiff Shawn McDiffett a “Notice to Pro Se Litigant
Who Opposes a Motion for Summary Judgment,” explaining Plaintiff’s burden under Federal
Rule of Civil Procedure 56 and Local Rule 56.1.1 Despite receiving this notice, Plaintiff has
filed no response to Defendant’s motion and the time for doing so has expired. Accordingly, the
Court deems admitted the facts presented by Defendant in support of her motion—to the extent
such facts are supported by the record—and grants summary judgment in favor of Defendant, as
detailed below.
I.
Nature of the Matter before the Court
Plaintiff brings this pro se civil rights action pursuant to 42 U.S.C. § 1983. At this time,
only claims against one defendant, Beverly Jackson, remain.2 The events giving rise to these
claims occurred while Plaintiff was incarcerated at the Lansing Correctional Facility (“LCF”) in
Lansing, Kansas. Defendant is a Licensed Practical Nurse (“LPN”) who was employed by
1
Doc. 85.
2
See Doc. 82 (Court’s order granting other defendants’ motion for summary judgment).
Corizon Health, Inc., a company contracted to provide medical care to inmates at LCF, during the
relevant timeframe.
Plaintiff has dealt with hernia-related issues since at least 2014. In November 2014,
Plaintiff alleges he saw a male nurse at LCF who asked why Plaintiff did not have a hernia belt.3
Approximately two months after that encounter, Plaintiff received a hernia belt. He underwent
hernia repair surgery on April 9, 2015. Plaintiff was seen for post-surgery observation on April 9,
April 10, April 16, and April 29. During his April 29 appointment, a doctor noted that Plaintiff
should return to the surgeon for a follow-up visit. The next day, Defendant charted that Plaintiff
was scheduled for the first available follow-up appointment with his surgeon, which was May 26.
Plaintiff was also seen by a doctor for surgery-related issues on May 7, May 19, May 20, May 21,
and May 24. After a doctor conducted a right-groin ultrasound, Plaintiff was scheduled for
another appointment with his surgeon. Plaintiff had surgery to repair a right inguinal hernia on
July 20, 2015. Following that surgery, Plaintiff was admitted to LCF’s infirmary, and remained
there until August 10. Defendant was not involved in Plaintiff’s medical care related to his hernia
after August 10, 2015.
As the Court noted in a prior order,4 Plaintiff filed a total of four grievances while at
LCF: two regarding access to and use of inhalers, one related to prison staff failing to notarize
Plaintiff’s documents, and one regarding Plaintiff’s housing assignments and disciplinary actions
taken against him.
3
Doc. 12 at 10.
4
Doc. 82.
2
II.
Legal Standards
Summary judgment is appropriate if the moving party demonstrates that there is no
genuine dispute as to any material fact and that it is entitled to judgment as a matter of law.5 In
applying this standard, courts view all evidence and reasonable inferences therefrom in the light
most favorable to the nonmoving party.6 “There is no genuine issue of material fact unless the
evidence, construed in the light most favorable to the non-moving party, is such that a reasonable
jury could return a verdict for the non-moving party.”7 A fact is material if, under the applicable
substantive law, it is “essential to the proper disposition of the claim.”8 An issue of fact is
genuine if “the evidence is such that a reasonable jury could return a verdict for the non-moving
party.”9
The moving party must initially show the absence of a genuine issue of material fact and
entitlement to judgment as a matter of law.10 In attempting to meet this standard, a movant that
does not bear the ultimate burden of persuasion at trial need not negate the other party’s claim;
rather, the movant need simply point out to the court a lack of evidence for the other party on an
5
Fed. R. Civ. P. 56(a); see also Grynberg v. Total, 538 F.3d 1336, 1346 (10th Cir. 2008).
6
City of Herriman v. Bell, 590 F.3d 1176, 1181 (10th Cir. 2010).
7
Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004) (citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986)).
8
Wright ex rel. Trust Co. of Kan. v. Abbott Labs., Inc., 259 F.3d 1226, 1231–32 (10th Cir. 2001) (citing
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998)).
9
Thomas v. Metro. Life Ins. Co., 631 F.3d 1153, 1160 (10th Cir. 2011) (quoting Anderson, 477 U.S. at
248).
10
Spaulding v. United Transp. Union, 279 F.3d 901, 904 (10th Cir. 2002) (citing Celotex Corp. v. Catrett,
477 U.S. 317, 322–23 (1986)).
3
essential element of that party’s claim.11 Where, as here, an affirmative defense is raised at the
summary judgment stage, the defendant must demonstrate that “no disputed material fact exists
regarding the affirmative defense asserted.”12 Once the defendant has met this initial burden, the
plaintiff must “demonstrate with specificity the existence of a disputed material fact.”13 The
defendant is entitled to summary judgment as a matter of law if the plaintiff fails to make such a
showing.14
Once the movant has met this initial burden, the burden shifts to the nonmoving party to
“set forth specific facts showing that there is a genuine issue for trial.”15 The nonmoving party
may not simply rest upon its pleadings to satisfy this burden.16 Rather, the nonmoving party must
“set forth specific facts that would be admissible in evidence in the event of trial from which a
rational trier of fact could find for the nonmovant.”17 To accomplish this, the facts “must be
identified by reference to an affidavit, a deposition transcript[,] or a specific exhibit incorporated
therein.”18
11
Adams v. Am. Guar. & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000) (citing Adler, 144 F.3d at
671); see also Kannady v. City of Kiowa, 590 F.3d 1161, 1169 (10th Cir. 2010).
12
Hutchinson v. Pfeil, 105 F.3d 562, 564 (10th Cir. 1997).
13
Id.
14
Id.
15
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); Spaulding, 279 F.3d at 904 (citing
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)); Celotex, 477 U.S. at 324.
16
Anderson, 477 U.S. at 256; accord Eck v. Parke, Davis & Co., 256 F.3d 1013, 1017 (10th Cir. 2001).
17
Mitchell v. City of Moore, Okla., 218 F.3d 1190, 1197–98 (10th Cir. 2000) (quoting Adler v. Wal-Mart
Stores, Inc., 144 F.3d 664, 670–71 (2000); see also Kannady v. City of Kiowa, 590 F.3d 1161, 1169 (10th Cir.
2010).
18
Adams v. Am. Guar. & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000) (quoting Thomas v. Wichita
Coca-Cola Bottling Co., 968 F.3d 1022, 1024 (10th Cir. 1992)).
4
Finally, summary judgment is not a “disfavored procedural shortcut”; on the contrary, it
is an important procedure “designed ‘to secure the just, speedy and inexpensive determination of
every action.’”19 In responding to a motion for summary judgment, “a party cannot rest on
ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the
mere hope that something will turn up at trial.”20
III.
Analysis
Plaintiff alleges that Defendant violated his Eighth Amendment rights on three occasions:
(1) when she did not timely order him a hernia belt, (2) when she did not timely schedule him for
medical appointments, and (3) when she failed to relay his medical restrictions to LCF staff.
Defendant argues that Plaintiff failed to exhaust his administrative remedies, and even if he had
done so, he fails to allege any cognizable Eighth Amendment violation.
Because Plaintiff did not file a response to Defendant’s motion, it is deemed uncontested
pursuant to District of Kansas Local Rule 7.4(b).21 That rule provides:
Absent a showing of excusable neglect, a party or attorney who fails
to file a responsive brief or memorandum within the time specified
in D. Kan. Rule 6.1(d) waives the right to later file such brief or
memorandum. If a responsive brief or memorandum is not filed
within the D. Kan. Rule 6.1(d) time requirements, the court will
consider and decide the motion as an uncontested motion.22
19
Celotex, 477 U.S. at 327 (quoting Fed. R. Civ. P. 1).
20
Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988).
21
Plaintiff is proceeding pro se in this matter. The Court recognizes that, as a result, it must construe his
filings liberally and hold them to a less stringent standard than formal pleadings drafted by attorneys. Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, pro se parties must still comply with federal and local
rules. Barnes v. United States, 173 F. App’x 695, 697–98 (10th Cir. 2006) (citing Ogden v. San Juan Cty., 32 F.3d
452, 455 (10th Cir. 1994); Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992)).
22
D. Kan. Rule 7.4(b).
5
This standard is modified in the context of summary judgment analysis because “it is
improper to grant a motion for summary judgment simply because it is unopposed.”23 Under
Federal Rule of Civil Procedure 56(e), the Court may deem a fact undisputed where the
nonmoving party fails to address it.24 That rule also permits the Court to “grant summary
judgment if the motion and supporting materials—including the facts considered undisputed—
show that the movant is entitled to it.”25 As a result of Plaintiff’s failure to respond within 21
days of Defendant filing her motion, the Court deems Defendant’s facts undisputed to the extent
they are supported by the record.
A. Exhaustion of Available Administrative Remedies
Defendant argues that Plaintiff’s claims are barred because he failed to fully exhaust all
available administrative remedies. The Prison Litigation Reform Act (“PLRA”) provides that
“[n]o action shall be brought with respect to prison conditions under section 1983 . . . by a
prisoner confined in any jail, prison, or other correctional facility until such administrative
remedies as are available are exhausted.”26 “[T]he PLRA’s 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.”27 The exhaustion requirement
also requires proper exhaustion so that “the prison grievance system is given a fair opportunity to
23
Thomas v. Bruce, 428 F. Supp. 2d 1161, 1163 (D. Kan. 2006) (quoting EEOC v. Lady Baltimore Foods,
Inc., 643 F. Supp. 406, 407 (D. Kan. 1986)); see also Issa v. Comp USA, 354 F.3d 1174, 1177–78 (10th Cir. 2003).
24
Fed. R. Civ. P. 56(e)(2).
25
Fed. R. Civ. P. 56(e)(3).
26
42 U.S.C. § 1997e(a).
27
Porter v. Nussle, 534 U.S. 516, 532 (2002).
6
consider the grievance.”28 This requires complete compliance with prison grievance
procedures.29
The uncontroverted evidence in the record demonstrates Plaintiff failed to exhaust his
administrative remedies regarding his allegations against Defendant. LCF’s four-step grievance
procedure requires inmates to: (1) attempt informal resolution, (2) file a grievance report
submitted to the appropriate unit team member, (3) submit the grievance to the warden, and (4)
submit the grievance to the Secretary of Corrections.30
The Court-ordered, uncontested Martinez Report indicates Plaintiff only filed four
grievances while housed at LCF.31 The first two grievances, filed in October 2015, both relate to
Plaintiff’s rescue inhalers.32 The third grievance complains of LCF staff failing to notarize
documents for Plaintiff.33 The fourth and final grievance mentions multiple incidents and staff
members.34 However, the fourth grievance was deemed improperly filed and failed to identify
what actions were being grieved. Importantly, none of these grievances mention Defendant, nor
do they relate to Plaintiff’s claims against her in this lawsuit.
Based on the grievance records in the Martinez Report, which Plaintiff has not refuted,
the Court finds that Defendant has satisfied her burden for summary judgment. Plaintiff has not
28
Woodford v. Ngo, 548 U.S. 81, 95 (2006).
29
Jones v. Bock, 549 U.S. 199, 218 (2007).
30
A more robust description of the Kansas state prisoner grievance process is provided in Kansas
Administrative Regulations § 44-15-102. See also Smith v. Rudicel, 123 F. App’x 906, 907 (10th Cir. 2005)
(describing the grievance procedures in Kansas state prisons).
31
Doc. 41-20.
32
Id. at 4, 15.
33
Id. at 24.
34
Doc. 41-21 at 14–25.
7
identified any evidence demonstrating he fully exhausted his available administrative remedies
for any of the claims he brings against Defendant, nor has he produced admissible evidence that
there is a genuine issue of material fact remaining on the issue of exhaustion. Summary
judgment is therefore proper on grounds that Plaintiff has not exhausted his administrative
remedies as required by the PLRA.
B. Eighth Amendment Claims
Even if Plaintiff were able to demonstrate he fully exhausted his administrative remedies,
his claims would fail because uncontroverted evidence in the record shows Defendant did not
violate his Eighth Amendment rights. The Eighth Amendment protects prisoners against cruel
and unusual punishment, including deprivations that are part of the punishment, and certain
deprivations suffered during incarceration.35 But the Supreme Court has held that, since “only
the unnecessary and wanton infliction of pain implicates the Eighth Amendment,” an inmate
with an Eighth Amendment claim based on prison medical staff’s inadequate attention to
medical needs must show “deliberate indifference to [the prisoner’s] serious medical needs.”36
“Deliberate indifference has both an objective and subjective component.”37 The
objective component requires that “the medical need . . . be sufficiently serious,”38 meaning that
“the condition ‘has been diagnosed by a physician as mandating treatment or is so obvious that
even a lay person would easily recognize the necessity for a doctor’s attention.’”39 The
35
Estelle v. Gamble, 429 U.S. 97, 104 (1976).
36
Wilson v. Seiter, 501 U.S. 294, 297 (1991) (internal citations omitted).
37
Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999).
38
Id.
39
Al-Turki v. Robinson, 762 F.3d 1188, 1192–93 (10th Cir. 2014) (quoting Oxendine v. Kaplan, 241 F.2d
1272, 1276 (10th Cir. 2001)).
8
subjective component requires the plaintiff show that the defendant knew that the plaintiff “faced
a substantial risk of harm and disregarded that risk, ‘by failing to take reasonable measures to
abate it.’”40 To demonstrate a substantial harm, a plaintiff may rely on a “lifelong handicap,
permanent loss, or considerable pain.”41
Plaintiff alleges that Defendant acted with deliberate indifference to a serious medical
need on three occasions: (1) when she failed to timely order a hernia belt causing a delay in
receiving it, (2) when she failed to timely schedule a follow-up medical appointments, and (3)
when she failed to properly communicate Plaintiff’s medical restrictions to LCF staff.
Plaintiff has failed to produce objective evidence that any of Defendant’s actions were
sufficiently serious.42 But even assuming Plaintiff’s hernia-related issues were sufficiently
serious medical needs, he has not produced any evidence that Defendant disregarded a risk of
harm or otherwise acted with a culpable state of mind. Plaintiff alleges that Defendant was
deliberately indifferent because she ignored his questions on some occasions, delayed ordering
his hernia belt, delayed scheduling a follow-up appointment, and did not communicate Plaintiff’s
restrictions to LCF staff. However, the uncontroverted evidence negates any indication that
Defendant was deliberately indifferent. For instance, the Martinez Report reveals that Plaintiff
was timely afforded access to medical care in response to his complaints and sick calls. The
Martinez Report also indicates that Plaintiff met with his treating physician at LCF during the
time he alleges Defendant failed to schedule him for appointments. Thus, even assuming
40
Hunt, 199 F.3d at 1224 (quoting Farmer v. Brennan, 511 U.S. 825, 847 (1994)).
41
Garrett v. Stratman, 254 F.3d 946, 950 (10th Cir. 2001).
42
Farmer, 511 U.S. at 834 (l994) (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)).
9
Plaintiff’s unsupported allegations are true, Defendant’s actions do not rise to the level of an
Eighth Amendment violation.
In sum, Plaintiff has failed to demonstrate that he exhausted his administrative remedies
as required by the PLRA, and Defendant is entitled to summary judgment as a result. Even if
Plaintiff had exhausted his administrative remedies, however, Defendant would be entitled to
summary judgment because Plaintiff fails to establish Defendant committed any act in violation
of his Eighth Amendment rights.
IT IS THEREFORE ORDERED BY THE COURT that Defendant’s Motion for
Summary Judgment (Doc. 83) is granted.
IT IS SO ORDERED.
Dated: February 7, 2020
S/ Julie A. Robinson
JULIE A. ROBINSON
CHIEF UNITED STATES DISTRICT JUDGE
10
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