McClain v. Mason County, Kentucky et al
Filing
61
MEMORANDUM OPINION & ORDER: 1) Defs' (Mary Collins, R.N., Gerald Curtis, Mason County, and Scott Poe) motion for partial summary judgment on Plf's federal law claim 28 is GRANTED; 2) Def Gary Sanders, M.D.'s motion for partia l summary judgment on Plf's federal law claims 43 is GRANTED; 3) Plf's remaining state law claims are DISMISSED WITH PREJUDICE; and 4) Judgment will enter concurrently herewith. Signed by Judge William O. Bertelsman on 7/15/2014.(ECO)cc: COR
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION AT COVINGTON
CIVIL ACTION NO. 2:12-cv-263 (WOB-JGW)
GARY MCCLAIN, SR.
PLAINTIFF
VS.
MEMORANDUM OPINION AND ORDER
MASON COUNTY, KY, ET AL.
DEFENDANTS
This matter is before the Court on Defendants’ (Mason County,
Gerald Curtis, Scott Poe and Mary Collins, R.N.) motion for partial
summary judgment (Doc. 28) and Defendant Gary Sanders, M.D.’s motion
for partial summary judgment (Doc. 43).
The Court held oral argument
on
Scott
these
motions
Plaintiff.
on
July
11,
2014.
Best
represented
the
Claire Parsons represented Defendants Mason County, Gerald
Curtis, Scott Poe, and Mary Collins, R.N.
Michael Arnold represented
Defendant Gary Sanders, M.D.
The
Court
having
heard
oral
argument
and
being
sufficiently
advised, hereby issues the following Memorandum Opinion and Order.
Facts
Plaintiff Gary McClain was arrested on December 20, 2011.
28-1,
Citation.
McClain
was
booked
at
the
Mason
County
Doc.
Detention
Center (“MCDC”), where he informed the booking officer of his need for
medical
care.
Doc.
28-2,
Booking
Questionnaire.
1
Form;
Doc.
28-3,
Medical
During
his
incarceration
at
the
MCDC,
McClain
filed
grievances and did not appeal the denial of any of them.1
three
Doc. 28-5,
1/25/12 Grievance; Doc. 28-6, 4/8/12 Grievance; Doc. 28-7, 4/25/12
Grievance; Doc. 29-1, McClain Depo., pp. 73, 96, 101.
Two grievances
concerned the temperature of McClain’s cell and are irrelevant.
28-5, 1/25/12 Grievance; Doc. 28-7, 4/25/12 Grievance.
Doc.
The third,
filed April 8, 2012, is relevant to this dispute, as it concerned
McClain’s medical treatment following a period of alleged illness.
Doc. 28-6, 4/8/12 Grievance.
Inmates are advised of their right to file a grievance at the
time
of
booking,
and
the
grievance
procedure
is
displayed
on
preprinted grievance forms, which are available to the inmates at the
MCDC.
Doc, 28-4, Curtis Aff., ¶¶6-10.
The grievance form states:
All grievances must be filed within 48 hours of the even[t]
or act that you are complaining about.
The Jailer or his
designee will respond to the grievance within five (5) days
from it’s [sic] receipt.
In the event that you do not
receive a response within ten (10) days, then your
grievance has been deemed to have been filed regarding an
event or act that is not eligible for this process due to
1
McClain claims that he filed a fourth grievance on February 22, 2012.
This claim is not corroborated by any record evidence other than
McClain’s testimony in an affidavit attached to his response briefs to
Defendants’ motions for partial summary judgment. See Docs. 55-2, 562, McClain Aff. Problematically, McClain’s assertion in his affidavit
contradicts his prior deposition testimony that he had no memory of
filing any grievances besides those dated January 25, 2012, April 8,
2012, and April 25, 2012.
Doc. 29-1, McClain Depo., pp. 101-102; see
Reid v. Sears, Roebuck & Co., 790 F.2d 453, 460 (6th Cir. 1986) (“A
party may not create a factual issue by filing an affidavit, after a
motion for summary judgment has been made, which contradicts her
earlier deposition testimony.”) (citing Biechele v. Cedar Point, Inc.,
747 F.2d 209, 215 (6th Cir. 1984)). Regardless, the record is devoid
of any proof that even if McClain submitted a grievance on or around
February 22, 2012, he appealed the grievance as required by the MCDC
grievance procedure.
2
local, state, or federal law and/or Mason County Detention
Center precedent.
If you are not satisfied with the
initial response to your grievance, you may appeal to the
Jailer or his designee within 48 hours of their initial
response. The Jailer or his designee will respond to your
appeal within ten (10) days.
If no response is received
within that ten day period, the appeal has been otherwise
denied.
Docs. 28-5, 28-6, 28-7, Grievances.
McClain’s April 8, 2012 grievance alleged he received inadequate
medical care during his period of illness in January or February 2012.
Doc. 28-6, 4/8/12 Grievance; Doc. 29-1, McClain Depo., pp. 97-98.
Although McClain filed the grievance beyond the 48-hour limitation
period in the MCDC grievance procedure, Chief Deputy Poe denied the
grievance on substantive grounds, explaining that he saw no denial of
medical care as alleged.
Doc. 28-6, 4/8/2012 Grievance.
not appeal to the Jailer.
McClain did
Id.; Doc. 28-4, Curtis Aff., ¶¶12-16; Doc.
29-1, McClain Depo., p. 101.
On
May
9,
2012,
McClain
entered
a
guilty
plea
to
the
drug
trafficking charge in the Mason Circuit Court, after which he was
transferred
to
the
Grant
County
Detention
Center
followed
by
a
transfer to the Assessment Center at the Kentucky State Reformatory.
Doc. 28-8, Judgment/Sentence; Doc. 28-9, Body Receipt; Doc. 28-10,
Release Report.
Correctional
In August 2012, McClain was transferred to the Keeton
Institute
in
Paducah,
where
he
remains.
Doc.
29-1,
McClain Depo., pp. 18-19.
McClain filed this suit on December 19, 2012.
Doc. 1, Complaint.
On December 27, 2013, Defendants Mason County, Curtis, Poe and Collins
filed a motion for partial summary judgment.
3
Doc. 28.
On January 13,
2014,
Defendant
judgment.
Sanders
also
filed
a
motion
for
partial
summary
Doc. 43.
Analysis
The Prison Litigation Reform Act (“PLRA”) prohibits any lawsuit
challenging
U.S.C.
prison
§1983,
by
conditions,
any
prisoner
including
until
available administrative remedies.
he
those
has
asserted
fully
under
exhausted
42
his
42 U.S.C. §1997e(a). There is no
dispute that McCain qualifies as a “prisoner” under the PLRA, because
he was incarcerated at the time he filed suit.
F.3d 422, 424-425 (6th Cir. 2003).
McClain’s
deliberate
indifference
See Cox v. Mayer, 332
There is also no dispute that
to
serious
medical
pertains to the “conditions of confinement.”
need
claim
See Napier v. Laurel
Co., 636 F.3d 218, 222 (6th Cir. 2011).
Under the PLRA, McClain is required to have fully exhausted the
administrative
remedies
available
to
him
at
the
MCDC.
The
MCDC
grievance procedure provides inmates with two levels of administrative
review.
Doc.
28-4,
Curtis
Aff.,
¶¶7-10.
This
policy,
which
is
printed atop the MCDC grievance form, states that inmates may submit
an initial grievance and can appeal to the Jailer if the initial
grievance is denied.
Id.; Doc. 28-5, 28-6, 28-7, Grievances.
Thus,
full exhaustion under the PLRA required McClain to submit a grievance
regarding the allegedly inadequate medical care he received and appeal
the denial of the grievance to the Jailer.
It is undisputed that McClain received a written response to his
April 8, 2012 his concerning medical treatment.
4
Doc. 28-6, 4/8/2012
Grievance.
McCain
admits
he
did
not
appeal
his
April
8,
2012
grievance.2
Doc. 28-6, 4/8/12 Grievance; Doc. 29-1, McClain Depo, p.
101.
this
On
basis,
Plaintiff
failed
to
fully
exhaust
the
administrative remedies available to him under the MCDC procedure.
A
plaintiff’s
failure
to
exhaust
his
administrative
remedies
cannot be excused by his ignorance of the law or applicable grievance
policy.
App’x
Napier, 636 F.3d at 222 (citing Brock v. Kenton Cty., 93 Fed.
793,
798
(6th
Cir.
2004)).
McClain
attempts
to
create
a
material issue of fact by citing to his January 8, 2014 affidavit, in
which he asserts he was not aware of the MCDC grievance procedure or
right to an appeal.
Docs. 55-2, 56-2, McClain Aff.
However, a party may not create a factual issue by filing an
affidavit
after
a
motion
for
summary
contradicting earlier sworn testimony.
790 F.2d 453, 460 (6th Cir. 1986).
judgment
has
been
filed
Reid v. Sears, Roebuck & Co.,
McClain’s affidavit was submitted
as an attachment to his response briefs to Defendants’ motions for
summary judgments and dated after Defendants Mason County, Curtis, Poe
and Collins filed their motion for partial summary judgment.
55-2,
56-2,
McClain
Aff.
McClain’s
averments
in
his
See Doc.
affidavit
contradict his deposition testimony that he was familiar with the MCDC
grievance procedure, including the right to an appeal.
McClain Depo., pp. 71-73.
Doc. 29-1,
Therefore, McClain’s affidavit fails to
2
Though McClain claims he filed a February 22, 2012 grievance, there is no
record that even if such a grievance were filed, he appealed or attempted to
appeal the response sufficient to exhaust his remedies under the MCDC
grievance procedure, as required by the PLRA. Kirkwood v. Ives, 2011 WL
6148665, *4-5 (E.D. Ky. 2011).
5
create
a
material
issue
of
fact
regarding
his
knowledge
of
the
grievance and appeals process available to him at the MCDC.
There is no evidence that McClain ever attempted to appeal the
response he received to his April 8, 2012 grievance.
Even if the
grievance policy was vague and McClain was unsure whether he had the
right to appeal, he still is required to make an affirmative attempt
to do so.
grievance
See Napier, 636 F.3d at 223 (rejecting that vagueness in a
procedure
administrative
excuses
remedies
as
inmates
required
by
from
the
exhausting
PLRA.)
There
their
is
no
evidence McClain asked staff about the status of his April 8, 2012
grievance,
followed
up
with
Poe
or
Curtis,
or
submitted
a
second
grievance challenging the lack of response to his grievance.
Thus,
McClain’s failure to appeal the denial his April 8, 2012 grievance
precludes his federal claims.
Having failed to fully exhaust his administrative remedies, the
PLRA
compels
dismissal
of
McClain’s
federal
claims.
The
Court
declines to exercise jurisdiction over Plaintiff’s remaining state law
claims.
Therefore, having heard from the parties and being sufficiently
advised,
IT IS ORDERED:
(1)
Defendants’
(Mary
Collins,
R.N.,
Gerald
Curtis,
Mason
County, and Scott Poe) motion for partial summary judgment
on Plaintiff’s federal law claims (Doc. 28) be, and hereby
is, GRANTED;
6
(2)
Defendant Gary Sanders, M.D.’s motion for partial summary
judgment on Plaintiff’s federal law claims (Doc. 43) be,
and hereby is, GRANTED;
(3)
Plaintiff’s remaining state law claims be, and hereby are,
DISMISSED
(4)
WITHOUT PREJUDICE; and
A judgment will enter concurrently herewith.
This 15th day of July, 2014.
7
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