Dupry v. Gehrig et al

Filing 54

REPORT AND RECOMMENDATION re 30 MOTION for Summary Judgment, 46 MOTION for Summary Judgment, 29 MOTION to Dismiss, and 47 MOTION to Dismiss: IT IS RECOMMENDED that the Motions for Summary Judgment be granted and that all claims against the mo vants be dismissed with prejudice for failure to exhaust administrative remedies before filing suit. IT IS FURTHER RECOMMENDED that all claims against Dr. Laura Gehrig be dismissed with prejudice for failure to exhaust administrative remedies before filing suit and that the Motions to Dismiss be denied as moot because all claims against the movants have otherwise been dismissed. Objections to R&R due by 7/30/2009. Signed by Magistrate Judge Mark Hornsby on 7/13/09. (crt,Cassanova, M)

UNITED STATES DISTRICT COURT W E S T ER N DISTRICT OF LOUISIANA S H R E V EP O R T DIVISION

J O H N DUPRY VERSUS D R . LAURA GEHRIG, ET AL

C I V I L ACTION NO. 08-cv-1036 J U D G E WALTER M A G I S T R A T E JUDGE HORNSBY

R E P O RT AND RECOMMENDATION J o h n Dupry ("Plaintiff") alleges (Docs. 1 and 6) that he was an inmate housed at the E a s t Carroll Detention Center, suffering from severe emphysema, when he was transferred to Forcht Wade Correctional Center, which has better medical facilities. Plaintiff alleges that t h e East Carroll officials provided him with two prescribed inhalers and transferred him to F o r c h t Wade so that he could benefit from an oxygen machine that East Carroll did not have. Plaintif f complains that the officials at Forcht Wade took his inhalers from him, refused to g i v e him new inhalers because they "cost too much," and said that Plaintiff would have to wa it until he arrived at his next prison facility. Plaintiff alleges that Forcht Wade officials a l s o refused to provide him the oxygen machine that he needed. Plaintiff asserts claims bas ed on the Eighth Amendment and the Americans With Disabilities Act. Each of the several defendants, except Dr. Laura Gehrig, has filed either a Motion to D i s m i s s (Docs. 29 and 47) or a Motion for Summary Judgment (Docs. 30 and 46). The M a r s h a l attempted to serve Dr. Gehrig both at the Forcht Wade facility and at an address at w h i c h the Department of Corrections has agreed to accept service for current employees.

Bo th attempts at service were returned with a notation that Dr. Gehrig was not served bec aus e she is no longer employed by the Department. Docs. 18 and 45. Among the defenses raised by the movants is that Plaintiff failed to exhaust his a d m i n i s tr a t iv e remedies before he filed this civil action. The defense is based on the statutory provision that "[n]o action shall be brought with respect to prison conditions under s e c t io n 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, o r other correctional facility until such administrative remedies as are available are exh aus ted." 42 U.S.C. § 1997e(a). The statute's reference to actions "with respect to prison c o n d i t i o n s " is interpreted broadly and includes actions that allege denial of medical care. Ha rris v. Hegmann, 198 F.3d 153 (5th Cir. 1999). The statute's broad application to claims u n d e r Section 1983 "or any other Federal law" encompasses Plaintiff's ADA claim related to his medical care in prison. See Wiley v. McKellar, 167 Fed. Appx. 385, 386 (5th Cir. 200 6); Richard v. Blanco, 2006 WL 3497739 (W . D . La. 2006). This court, before the decision in Jones v. Bock, 127 S.Ct. 910 (2007), conducted a s u a sponte inquiry in every prisoner case to determine whether the prisoner could produce a n indication that he exhausted administrative remedies before filing suit. If the prisoner could not squarely allege or present documents to suggest exhaustion, the case was dismissed before the defendants were served. Jones held that exhaustion of administrative remedies i s an affirmative defense that the defendants must establish, and the court may not require

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prisoners to specifically plead or demonstrate exhaustion in their complaints. See also Carbe v. Lappin, 492 F.3d 325 (5th Cir. 2007). C o n s i s t en t with Jones, the court no longer orders prisoners to allege exhaustion at the p l e a d in g stage, but the pre-Jones complaint form used by area prisoners for many years does i n c l u d e questions about exhaustion and a request to attach exhaustion information. Plaintiff f i l ed this action on such a form, but he did not respond to any of the questions regarding the f i l in g or pursuit of an administrative grievance. He did attach to his original complaint what p u rports to be a request for administrative remedy dated March 12, 2008 that complains a b o u t the denial of inhalers at the Forcht W a d e facility. Plaintiff also alleged in a later r e s p o n s e to questions from the court about his medical care that he made numerous c o m p l a i n t s , "including a ARP grievance sent to the Forcht Wade administration on 3-12-08." Do c. 6, p. 3. Movants assert in their motion for summary judgment that, despite Plaintiff's a l l e g a t io n s , there is no record that prison officials received an ARP grievance. The court has n o t e d in past cases that the assertion of the exhaustion defense by motion for summary j u d g m e n t is usually supported by an affidavit from the official who administers the ARP s ys te m . That official "testifies about the existence and terms of the ARP plan in place at the r e l e v an t time, attaches certified copies of any filing that the prisoner did make (together with r e s p o n s e s thereto), or certifies that a diligent check of the record reveals no filing by the p r i s o n er with respect to the claims at issue." Fitch v. La. Department of Public Safety, 2009

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W L 1076749 (W.D. La. 2009). That discussion was offered in the course of advising a t t o rn e y s for state officials that a Rule 12(b)(6) motion would seldom suffice to prevail on the exhaustion defense. The state officials in this case did present the defense by motion for summary judg men t, but its evidentiary support is gossamer thin. Movants counsel points to the A d m i n i s t ra t i v e Remedy Procedure adopted by the Louisiana Department of Public Safety and C o r r e c t io n s , and published in the Louisiana Administrative Code at Title 22, Part I, § 325. T h e policy applies at facilities operated by the Department. There is no evidence of record t h a t Forcht Wade is such a facility, but the court will take judicial notice, gained from years o f litigation involving the prison, that it is a Department prison. Defendants in future cases shou ld avoid any doubt by offering testimony or other competent evidence that the ARP plan in the regulations was in effect at the relevant prison at the time of the events at issue. Movants note in their memorandum that the ARP process is begun by writing a letter to the warden of the facility. If the screening officer accepts the grievance for processing, t h e warden or his designated staff person has 40 days to respond. An inmate who is d i s s a ti s f ie d with that response may appeal to the Secretary of the Department. If the inmate is not satisfied with the second-step response, he may file suit. See Alex v. Stalder, 2007 WL 491 978 1 (W.D. La. 2007). The only evidence submitted by the movants to challenge Plaintiff's allegation that h e filed a grievance is an affidavit from Rhonda Weldon, who testifies that she "is employed

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a s a Paralegal for the Department of Public Safety and Corrections, Legal Services, Office o f the Secretary." Beyond that, Weldon offers only the following: "After a review of the a d m i n i s tr a t iv e proceedings, as maintained in the normal course of business by the D e p a r t m e n t of Public Safety and Corrections, she was unable to locate an A D M I N IS T R A TI V E REMEDY PROCEDURE filed on March 12, 2008 by Plaintiff, JO HN DUPRY, Doc. #184009, in connection with the above-captioned matter." W e l d o n does not offer any testimony to explain how or where the "administrative p r o c e ed i n g s " are maintained or that would otherwise assure the court that whatever she r e v i e w e d (and wherever it is) would contain any grievance that Plaintiff filed when he was h o u s e d at the Forcht Wade facility in north Louisiana. Testimony in similar cases in the past h a s come from the administrator of the ARP system at the facility where the claim arose and whe re the grievance would have been originally filed. In the future, no matter the affiant, t h e affidavit on such matters should include more detailed facts about what records the p e r s o n reviewed and why a review of those records should be dispositive of whether a g r i e v a n ce was filed and exhausted. Furthermore, the assertion that a Department paralegal s e a r c h e d some records somewhere and did not find a grievance filed precisely "on March 12, 2 0 0 8 " by a plaintiff who alleges that he "sent" his grievance on that date (presumably to the w a r d e n at the local facility rather than the Department) leaves room for doubt. Weldon's narro wly cabined testimony does not preclude the possibility that the March 12 grievance w a s received or "filed" on March 13 or any other date. Neither the records search nor the

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t e s ti m o n y about it should be framed so narrowly. The movant should provide the court with f a c t u a l information from which a reasonable person would be assured that a diligent search o f the relevant records has been conducted. The affidavit should, rather than being drafted a s narrowly as possible, tell the story of what the affiant did and explain to the court why that a c t io n establishes that a grievance was not filed and exhausted with regard to the allegations in the suit. Whether it is done by design or oversight, narrow testimony such as Weldon's m a k e s a reasonable person wonder what the affiant really did and what she may have left out of her testimony. Fortunately for the movants, Plaintiff was released from prison during the pendency o f this litigation. See Doc. 35. He apparently lost interest in this case because, after these m o t i o n s were noticed, he did not file any opposition. The movants' summary judgment e v i d e n c e is severely lacking in factual detail, but the court will accept it as adequate to make a prima facie case for the exhaustion defense and shift the summary judgment burden to P l a i n ti f f to show that there is a genuine issue of material fact. Plaintiff did not file any o p p o s i ti o n to the motions, so he has not satisfied his burden. Movants are entitled to sum ma ry judgment. Dr. Gehrig did not join any motion, but the defense established by the movants would apply equally to her. Thus, the court should not only grant the motions for summary j u d g m e n t but also sua sponte grant summary judgment for Dr. Gehrig. This notice to P l a i n ti f f , and the 10-day objections period that follows this recommendation, satisfies the

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1 0 - d a y notice requirement of Fed. R. Civ. Pro. 56(c). See St. Paul Mercury Ins. Co. v. W il l ia m s o n , 224 F.3d 425, 435 (5th Cir. 2000) ("A party must be given at least ten days n o t i c e before a court grants summary judgment sua sponte.") This procedure does not run a f o u l of Jones because the court is not requiring the prisoner to plead around the defense in his complaint. Rather, the defense has been factually established in summary judgment pra ctice , and the prisoner is being afforded the opportunity to respond to that showing. The next question is whether the claim should be dismissed with or without prejudice to refiling in forma pauperis. The undersigned has explained in other cases that the filing of u n e x h a u s t e d suits post-Jones places more burden than before on the taxpayers who fund state i n s ti t u ti o n s and the federal courts. The court may no longer dismiss the unexhausted com plaints prior to service by the Marshal and, at a minimum, motion practice such as this o f f e r e d by the taxpayer-funded attorneys for the prison officials. These burdens make it more i m p o r t a n t now than ever to discourage the premature filing of unexhausted prisoner c o m p l a i n t s , and dismissal with prejudice to another IFP filing serves that interest and will e n c o u r a g e prisoners to obey Congress's mandate to exhaust administrative remedies before suit is filed. See Fitch, 2009 WL 1076749, *3. De fend ants also filed motions to dismiss that raised Eleventh Amendment, qualified im m un ity, and other defenses. The recommendation that all claims be dismissed for lack of e x h a u s t io n does away with the need to address the several issues presented in those motions. Th ey may be denied as moot.

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A cc or di ng ly, I T IS RECOMMENDED that the Motions for Summary Judgment (Docs. 30 and 4 6 ) be granted and that all claims against the movants be dismissed with prejudice for failu re to exhaust administrative remedies before filing suit. IT IS FURTHER RECOMMENDED that all claims against Dr. Laura Gehrig be d i s m i s se d with prejudice for failure to exhaust administrative remedies before filing suit. I T IS FURTHER RECOMM E N D E D that the Motions to Dismiss (Docs. 29 and 4 7 ) be denied as moot because all claims against the movants have otherwise been d i s m i ss e d . O b j e c t io n s Un der the provisions of 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b), parties a g g r i e v ed by this recommendation have ten (10) business days from service of this report and r e c o m m e n d a t i o n to file specific, written objections with the Clerk of Court, unless an e x t e n s io n of time is granted under Fed. R. Civ. P. 6(b). A party may respond to another party's objections within ten (10) days after being served with a copy thereof. Counsel are d i r e c te d to furnish a courtesy copy of any objections or responses to the District Judge at the t i m e of filing. A party's failure to file written objections to the proposed findings, conclusions and r e c o m m e n d a t i o n set forth above, within 10 days after being served with a copy, shall bar that pa rty, except upon grounds of plain error, from attacking on appeal the unobjected-to

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p r o p o s e d factual findings and legal conclusions accepted by the district court. See Douglass v . U.S.A.A., 79 F.3d 1415 (5th Cir. 1996) (en banc). THUS DONE AND SIGNED in Shreveport, Louisiana, this 13th day of July, 2009.

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