Clark v. Galvan

Filing 35

ORDER DISMISSING CASE without Prejudice, Granting 29 Motion to Dismiss/Motion for Summary Judgment, and Granting 28 Motion for Leave to File Exhibit B-1 in Camera. Signed by Judge James C. Mahan on 5/9/11. (Copies have been distributed pursuant to the NEF - ASB)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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MICHAEL CLARK,

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2:09-CV-2338 JCM (PAL)

Plaintiff,
v.
OFFICER GALVAN,

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Defendant.

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ORDER

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Presently before the court is defendant officer Rene Galvan’s motion to dismiss/motion for

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summary judgment. (Doc. #29). Plaintiff Michael Clark filed an opposition. (Doc. #33). Defendant

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filed a reply. (Doc. #34).

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Also before this court is defendant’s motion for leave to file Exhibit B-1 in camera (doc.
#28) and notice of in camera submission (doc. #31).

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Plaintiff filed his complaint (doc. #1-1) in the Eighth Judicial District Court of the State of

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Nevada on October 26, 2009. Defendant removed the action to this court on December 10, 2009.

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(Doc. #1). Plaintiff was an inmate at the Southern Desert Correctional Center when he was allegedly

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burned while being pushed in a cart that was hot from being left out in the sun. (Doc. #33). He

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asserts that when defendant Galvan operated the cart, he acted with deliberate indifference to

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plaintiff’s health or safety. In the present motion to dismiss (doc. #29), defendant contends that

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dismissal is appropriate because (1) plaintiff failed to exhaust administrative remedies available to

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him, (2) plaintiff failed to state a cognizable action under 42 U.S.C. § 1983, and (3) defendant is

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entitled to qualified immunity.

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James C. Mahan
U.S. District Judge

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Motion For In Camera Submission

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To support his motion (doc. #29), defendant asks this court for leave to file Exhibit B-1 (doc.

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#30-1), plaintiff’s one page medical record, in camera. Pursuant to NRS 629.061 and Administration

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Regulation 639 (doc. #28-1 Exhibit A), prisoner medical records are confidential documents, and

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are treated as such to protect the prisoner’s confidentiality. The inmate may waive this, but a waiver

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of this sort has not been provided by the plaintiff. Defendant seeks to file plaintiff’s medical records

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(doc. #30-1) in camera to “prevent their entry into the public record and to protect [p]laintiff’s

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confidentiality.” (Doc. #28).

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As plaintiff may not possess copies of his records in his cell pursuant to Administrative

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Regulation 639, defendant asserts that he will send copies to the correctional center where plaintiff

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is housed, with instructions to permit the plaintiff to review the exhibit by appointment. (Doc. #28).

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In the notice of in camera submission (doc. #31), the defendant gives notice to the court that Exhibit

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B-1 (doc. #30-1) was submitted in camera, and that it was sent to the Northern Nevada Correctional

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Center for plaintiff to view by contacting the warden’s office. In order to maintain the confidentiality

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of plaintiff’s medical records, this court is inclined to grant the defendant’s motion for leave to file

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the exhibit in camera.

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Motion To Dismiss

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In the defendant’s motion to dismiss (doc. #29), he provides the court with a factual history

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of the case, including the events that occurred on the day of the incident and with regards to filing

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grievances with the prison officials. Defendant asserts that the complaint should be dismissed

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because, among other reasons, plaintiff failed to exhaust all of the administrative remedies as

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required under 42 U.S.C. § 1997e(a).

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When a prisoner is seeking relief under § 1983, such as here, he must prove that he has

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exhausted all available administrative remedies prior to bringing suit. See 42 U.S.C. § 1997e(a).

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Exhausting all the administrative remedies is mandatory, and the requirement must be met prior to

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filing the complaint, not in conjunction with or after the filing of the complaint. See Booth v.

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Chumer, 532 U.S. 731, 741 (2001) (overruling Rumbles v Hill, 182 F.3d 1064 (9th Cir. 1999));

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James C. Mahan
U.S. District Judge

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McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002). In order to exhaust his remedies, the

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prisoner must comply with all of the prison system’s procedural rules, including “deadlines and other

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critical procedural rules.” Woodford v. Ngo, 548 U.S. 81, 89-96 (2006). Additionally, the prisoner’s

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grievance must afford the prison officials a full and fair opportunity to address the prisoner’s claim

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before a suit is filed. Id. at 90, 93.

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In Nevada, a prisoner satisfies this requirement when he follows the procedures set forth in

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Administrative Regulation 740 (doc. #29-2 Exhibit A-1), which requires one formal and two

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informal levels of review. To implicate a first and second level review, a prisoner must file an appeal

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to an informal and first level grievance, respectively. Id.

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Here, as evidenced by the inmate issue history (doc. #29-4 Exhibit A-2), plaintiff filed an

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informal grievance alleging that he was “burned four times on a steel plate cart that was not put in

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the shade.” In response to the grievance, plaintiff was asked to specify when the incident occurred

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and to propose a remedy. Id. However, instead of complying with the request, plaintiff tried to appeal

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to the first formal level of review. Id. As this was the improper step to take, he was informed that

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he must wait for an informal response before proceeding to the next level. Id. Despite this, he failed

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to comply again by filing another separate informal grievance. Id.

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In his new grievance, he expanded on his first allegation, and asserted that he was burned

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four or five times more because the officer rushed off before he was seated, and proposed that an

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apology and $700 for pain and suffering would suffice as a resolution. Id. Plaintiff still failed to state

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the officer’s name in his new grievance, and it was returned with a request for the disclosure of the

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officer’s name. Id. Once again, rather than complying with the request, plaintiff attempted to appeal

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to both the first and second levels of review. Id.

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As defendant contends, this does not amount to an exhaustion of remedies as required by 42

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U.S.C. § 1997e(a). Plaintiff did not follow the procedures, none of the appeals were accepted by the

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Nevada Department of Corrections, and there was no adjudication of the issues on the merits. Ngo,

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548 U.S. at 90-91. Plaintiff’s failure to exhaust all administrative remedies warrants dismissal. 42

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U.S.C. § 1997e(a). Defendant provides the court with alternative reasons why dismissal is

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James C. Mahan
U.S. District Judge

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appropriate, but as the court dismisses plaintiff’s complaint for failure to exhaust, it need not address

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the additional grounds for dismissal.

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Accordingly,

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IT IS HEREBY ORDERED ADJUDGED AND DECREED that defendant officer Rene

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Galvan’s motion for leave to file Exhibit B-1 in camera (doc. #28) be, and the same hereby is,

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GRANTED.

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IT IS FURTHER ORDERED that defendant’s motion to dismiss/motion for summary
judgment (doc. #29) be, and the same hereby is GRANTED.
IT IS THEREFORE ORDERED that the above captioned case be DISMISSED without
prejudice against defendant officer Rene Galvan.
DATED May 9, 2011.

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UNITED STATES DISTRICT JUDGE
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James C. Mahan
U.S. District Judge

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