Kelley v. Gedney et al

Filing 48

ORDER that the Report and Recommendation of Magistrate Judge William G. Cobb (ECF No. 44 ) is accepted and adopted in full; Defendants' motion to dismiss/motion for summary judgment (ECF Nos. 23 , 24 ) are granted; Plaintiff's claim is dismissed with prejudice; Clerk is directed to enter judgment accordingly and close this case. Signed by Judge Miranda M. Du on 08/14/2017. (Copies have been distributed pursuant to the NEF - KW) (Main Document 48 replaced on 8/14/2017) (KW).

Download PDF
1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 JAMES C. KELLEY, Plaintiff, 10 11 Case No. 3:16-cv-00041-MMD-WGC v. DR. KAREN GEDNEY, et. al., 12 ORDER REGARDING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE WILLIAM G. COBB Defendants. 13 14 I. SUMMARY 15 Before the Court is the Report and Recommendation of United States Magistrate 16 Judge William G. Cobb (“R&R”) (ECF No. 44), recommending granting Defendants’ 17 motion to dismiss/motion for summary judgment (“Motions”) (ECF Nos. 23, 24) based on 18 Plaintiff’s failure to exhaust his administrative remedies. The Court has reviewed 19 Plaintiff’s objection (ECF No. 45) and Defendants’ response (ECF No. 46). For the 20 reasons discussed herein, the Court adopts the R&R. 21 II. BACKGROUND 22 After screening pursuant to 28 U.S.C. § 1915A, the Court permitted Plaintiff to 23 proceed on his Eighth Amendment claim based on his allegations that Defendants have 24 deliberately denied or interfered with him receiving proper treatment of two serious 25 medical conditions—an umbilical hernia and hepatitis C. (ECF No. 11.) 26 As relevant to Defendant’s Motion, the facts relating to Plaintiff’s grievance filings 27 are not in dispute. Administrative Regulation (“AR”) 740 establishes NDOC’s grievance 28 process with the various steps—informal level, first level and second level—set out in AR 1 740.05 through 740.07. (ECF No. 23-8 at 5-9.) AR 740.09.2.F provides, in pertinent part, 2 that “[i]t is considered an abuse of the inmate grievance procedure when an inmate files 3 a grievance that . . . contains two more appropriate issues.” (Id. at 11.) AR 740.09.4 4 provides that the event of such an abuse, “[t]he inmate shall not be given additional time 5 to re-submit the grievance in proper form.” (Id.) AR 740.05.4.A gives an inmate six 6 months to file a grievance concerning a medical claim. (Id. at 6.) 7 On June 9, 2015, Plaintiff submitted grievance number 2006302478 at the 8 informal grievance level where he requested surgery for his hernia and Hepatitis C 9 treatment pill: Around the last week of May 2015 I was seen at NNCC’s RMF by RN Manalang regarding my medical kite requesting surgical treatment for my hernia and the new hepatitis C pill treatment available to inmates at NNCC. RN Manalang ordered a blood test be done for my Hep C, and referred that I see Dr. King (NDOC’s surgical contractor medical specialist) for surgical treatment for my stomach hernia. Meanwhile, my blood test came back indicating that I have Hep-C. On June 4, 2015 I was seen by Dr. Gedney who said I was to die of cigarette related symptoms before I would Hep-C, and basically refused to refer surgery to NNCC’s Utilization Review Panel or provide the Hep-C treatment pill that would not only prolong my life span but prevent any [ ] Hep-C transfer to other inmates. On June 8, 2015, I was scheduled to see Dr. King and when I went to the RMF to see him, I was stopped and informed by RN Mellissa-in front of Dr. King, Dr. Gedney cancelled my appointment with Dr. King. I am being denied adequate medical care for my serious medical need of hernia surgery and Hep-C treatment that is available to inmates at NNCC, thus my Eighth Amendment right to adequate medical care is being violated by Dr. Gedney. 10 11 12 13 14 15 16 17 18 19 20 (ECF No. 23-1 at 2.) He received a response, denying his grievance, as follows: Mr. Kelley, per Medical Directive #219 you do not meet the criteria for Hepatitis C treatment at this time. Per the physician[‘]s notes, your Hepatitis C should be monitored every year, and that no treatment is needed at this time. Per physician[‘]s notes, you have a small umbilical hernia, and surgery at this time would be elective. Elective surgeries are not performed by the NDOC. 21 22 23 24 25 (Id.) Plaintiff filed a first level grievance dated June 30, 2015, explaining his 26 disagreement. (Id.) In response, Plaintiff received a document entitled “Nevada 27 Department of Corrections Memorandum” (“Memo”) dated July 7, 2015. (ECF No. 37 at 28 /// 2 1 52.) The Memo notified Plaintiff that his “grievance is being returned to [him] for the 2 following reason(s): Per AR 740.09 2 F, “It is considered abuse of the inmate grievance procedure when an inmate files a grievance that … contains two or more appropriate issues.” Your grievance involves both Hep C treatment and hernia surgery. Please split this into two separate grievances. 3 4 5 6 (Id; ECF No. 23-1 at 2.) The bottom of the Memo included boilerplate instructions: “You 7 may resubmit your grievance after correcting the above deficiencies. Failure to re-submit 8 the grievance through the prescribed timeframe shall constitute abandonment.” (ECF 9 No. 37 at 52.) Plaintiff then filed a second level grievance, voicing his disagreement with 10 the Memo. (ECF No. 23-1 at 3; ECF No. 37 at 54-62.) On August 20, 2015, Plaintiff’s 11 second level grievance was rejected; and he was again told to “split this into two 12 separate grievances.” (ECF No. 23-1 at 3.) Thus, while Plaintiff received a response on 13 the merits to his grievance at the informal grievance level, his first and second level 14 grievance was rejected on procedural ground—the inclusion of two issues in violation of 15 AR 740.09.2.F. 16 Defendants’ Motions seek dismissal of Plaintiff’s claim for failure to exhaust 17 administrate remedies. (ECF Nos. 23, 24.) The Magistrate Judge agrees with 18 Defendants and recommends dismissal of Plaintiff’s claim with prejudice because the 19 time for him to pursue his administrative remedies has expired. (ECF No. 44 at 18.) 20 III. LEGAL STANDARD Review of the Magistrate Judge’s Recommendations 21 A. 22 This Court “may accept, reject, or modify, in whole or in part, the findings or 23 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party 24 timely objects to a magistrate judge’s report and recommendation, then the court is 25 required to “make a de novo determination of those portions of the [report and 26 /// 27 /// 28 /// 3 1 recommendation] to which objection is made.”1 28 U.S.C. § 636(b)(1). In light of 2 Plaintiffs’ objection, the Court has engaged in a de novo review to determine whether to 3 adopt Magistrate Judge Cobb’s recommendation. 4 B. Summary Judgment Standard 5 “The purpose of summary judgment is to avoid unnecessary trials when there is 6 no dispute as to the facts before the court.” Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 7 18 F.3d 1468, 1471 (9th Cir. 1994). Summary judgment is appropriate when the 8 pleadings, the discovery and disclosure materials on file, and any affidavits “show there 9 is no genuine issue as to any material fact and that the movant is entitled to judgment as 10 a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). An issue is 11 “genuine” if there is a sufficient evidentiary basis on which a reasonable fact-finder could 12 find for the nonmoving party and a dispute is “material” if it could affect the outcome of 13 the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 14 (1986). In evaluating a summary judgment motion, a court views all facts and draws all 15 inferences in the light most favorable to the nonmoving party. Kaiser Cement Corp. v. 16 Fishbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986). “The mere existence of a 17 scintilla of evidence in support of the plaintiff’s position will be insufficient.” Anderson, 18 477 U.S. at 252. 19 IV. DISCUSSION 20 The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be 21 brought with respect to prison conditions under section 1983 . . . by a prisoner 22 confined in any jail, prison, or other correctional facility until such administrative 23 remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The Supreme 24 Court has interpreted § 1997e(a) as “requir[ing] proper exhaustion,” Woodford v. Ngo, 25 548 U.S. 81, 93 (2006), which “demands compliance with an agency’s deadlines and 26 other critical procedural rules.” Id. at 90. 27 28 1Because the R&R addresses a dispositive motion, the Court conducts a de novo review, not a review under the “clearly erroneous” standard as Defendants argue. (ECF No. 46 at 2-3.) 4 1 An inmate’s “[f]ailure to exhaust under the PLRA is ‘an affirmative defense the 2 defendant must plead and prove.’” Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) 3 (en banc) (quoting Jones v. Bock, 549 U.S. 199, 204, 216 (2007)). Defendants may 4 meet their burden by “prov[ing] that there was an available administrative remedy, and 5 that the prisoner did not exhaust that available remedy.” Id. at 1172. Once met, the 6 burden shifts to the inmate to show that “there is something in his particular case that 7 made the existing and generally available 8 unavailable to him.” Id. Defendants, however, retain “the ultimate burden of proof.” Id. 9 The Supreme Court recently clarified that the only exception to the 10 PLRA’s mandatory exhaustion is that an inmate “m ust exhaust available 11 remedies, but need not exhaust unavailable ones.” Ross v. Blake, 136 S.Ct. 1850, 1858 12 (2016). In Ross, the Court elaborated on this sole exception—when administrative 13 remedies are “unavailable.” The Court found three kinds of circumstances where 14 administrative remedies are effectively unavailable. Id. at 1859. The first is where the 15 administrative procedure “operates as a simple dead end—with officers unable or 16 consistently unwilling to provide any relief to aggrieved inmates.” Id. The second is 17 where “an administrative scheme might be so opaque that it becomes, practically 18 speaking, incapable of use. In this situation, some mechanism exists to provide relief, 19 but no ordinary prisoner can discern or navigate it.” Id. The third circumstances is “when 20 prison administrators thwart inmates from taking advantage of a grievance process 21 through machination, misrepresentation, or intimidation.” Id. The Ninth Circuit Court of 22 Appeals recently observed that the three circumstances recognized in Ross are not an 23 exhaustive list. See Andres v. Marshall, No. 15-56057, __, F.3d ___, 2017 WL 3432609 24 at *2 (9th Cir. Aug. 8, 2017) (finding that administrative remedies were effectively 25 unavailable where defendants failed to timely process plaintiff’s timely filed grievance). 26 Plaintiff’s main arguments raise administrative remedies effectively issues covered under Ross’s second 27 circumstance. Plaintiff challenges the Magistrate Judge’s rejection of his argument that 28 AR 740 is ambiguous. (ECF No. 45 at 12-14.) The Magistrate Judge did find that “there 5 1 is some ambiguity in AR 740 concerning how an inmate is to proceed to exhaust 2 administrative remedies when he receives a response to a grievance that deems the 3 grievance to be an abuse of the grievance procedure and the inmate disagrees with that 4 determination.” (ECF No. 44 at 18.) However, the Magistrate determined that this 5 ambiguity is not enough to render the process effectively unavailable because Plaintiff 6 was advised how NDOC officials interpret the regulation and how Plaintiff was to 7 proceed—file two separate grievances. (Id.) The Magistrate Judge found that such 8 interpretation is consistent with how AR 740 addresses grievance that are found to 9 constitute an abuse of the grievance process. (Id.) 10 The Court agrees with the Magistrate Judge’s reasoning. Plaintiff’s argument— 11 that AR 740 is ambiguous as to how he should proceed after his grievance was 12 addressed on the merits at the informal level but rejected at the first level as abusing the 13 grievance process—challenges AR 740 as being opaque and difficult to navigate. As the 14 Supreme Court in Ross explained, to be “unavailable,” the remedy has to be “essentially 15 ‘unknowable’—so that no ordinary prisoner can make sense of what it demands.” Thus, 16 even accepting Plaintiff’s argument that AR 740 is not clear as to how he should proceed 17 after his grievance was rejected at the first level as being procedurally improper, that 18 alone does not necessarily render the procedure unavailable to him. The Supreme Court 19 in Ross anticipated this situation and made it clear that “[w]hen an administrative 20 process is susceptible of multiple reasonable interpretations, . . . the inmate should err 21 on the side of exhaustion.” Ross, 136 S.Ct. at 1859. Plaintiff cannot claim that he erred 22 on the side of exhaustion. Even viewing the evidence in the light most favorable to 23 Plaintiff and accepting his contention that AR 740.09 is ambiguous, he was told each 24 time at the first and second level grievance as to how to correct the procedural defect— 25 separate the grievance into two grievances. (ECF No. 23-1 at 2; ECF No. 37 at 52.) He 26 chose not to do so and thus under Ross, Plaintiff cannot claim that the administrative 27 remedies were unavailable to him. 28 /// 6 1 Plaintiff also contends that because NDOC officials addressed his informal 2 grievance on the merits only to reject his grievance on procedural grounds at the first 3 and second levels, they rendered the grievance process effectively unavailable to him. 4 (ECF No. 45 at 8-11.) The Court disagrees. In Reyes v. Smith, 810 F.3 654, 659 (9th Cir. 5 2016), the Ninth Circuit held “that a prisoner exhausts such administrative remedies as 6 are available,’ 42 U.S.C. § 1997e(a), under the PLRA despite failing to comply with a 7 procedural rule if prison officials ignore the procedural problem and render a decision on 8 the merits of the grievance at each available step of the administrative process.” In 9 Reyes, the inmate plaintiff grieved the reduction of pain medication for his degenerative 10 spine condition. Id. at 656. His grievance did not include the names of the physicians 11 who would not approve the pain medication prescriptions originally recommended for 12 plaintiff as required under the prison’s administrative rules. Id. Despite such procedural 13 defect, prison officials responded on the merits to the plaintiff’s grievance at all three 14 levels of the administrative grievance process, explaining the reason for the reduction of 15 plaintiff’s pain medication regiment. Id. The denial at the final level of the grievance 16 process stated: “This decision exhausts your available administrative remedies.” Id. The 17 Ninth Circuit found that the inmate exhausted his available remedies even though his 18 grievances failed to comply with administrative rules because officials provided “a 19 decision on the merits at every level of the grievance process.” Id. at 65. The court 20 reasoned that “when prison officials address the merits of a prisoner's grievance instead 21 of enforcing a procedural bar, the state's interests in administrative exhaustion [that 22 being the chance to address inmate complaints internally first] have been served.” Id. 23 Unlike the situation in Reyes, Plaintiff’s grievance was addressed on the merits at 24 only the informal level, but was denied for being procedurally defective at the first and 25 second levels. Thus, while NDOC officials ignored a procedural defect at the informal 26 level, they directed plaintiff to correct the defect at the first and second levels and did not 27 address his grievance on the merits. Plaintiff argues that he did comply with AR 740 by 28 appealing the denial of his grievance at the first and second levels and therefore he 7 1 “reached the merits of the issues.” (ECF No. 45 at 11.) However, the merits of his claim 2 that he was denied Hepatitis C pill and surgery for his hernia was only addressed at the 3 informal level. Moreover, AR 740 does not provide for an appeal of the finding that the 4 grievance “contains more than one appropriate issue.” While AR 740 does not 5 specifically identify what an inmate is to do in that situation,2 NDOC officials’ responses 6 to Plaintiff’s grievance at the first and second levels did instruct Plaintiff on what to do to 7 correct the procedural defect—separate the grievance into two separate grievances to 8 separately address each issue. (ECF No. 23-1 at 2; ECF No. 37 at 52.) Under these 9 circumstances, the Court cannot find that Plaintiff’s grievance was addressed at all levels 10 of the grievance process such that the state’s interest in administrative exhaustion has 11 been served. 12 Plaintiff also argues that NDOC officials improperly screened his grievance at the 13 first and second levels because the directive for him to split up the two issues—Hepatitis 14 C treatment pill and surgery for his hernia—contradicts AR 740.09. In Sapp v. Kimbrell, 15 623 F.3d 813, 823 (9th Cir. 2010), the Ninth Circuit reiterated that an improper screening 16 of an inmate’s grievance could render the administrative remedy “effectively 17 unavailable.” There, the court reasoned that a prison appropriately screened out an 18 inmate’s grievances for procedural problems five times. Id. at 826-27. The procedural 19 deficiencies included raising a new issue in a second-level grievance, failing to note a 20 specific remedy, failing to attach a requisite health care form, and untimely appealing 21 a lower-level grievance. Id. at 825-26. The inmate also received instructions to raise 22 new issues in a separate grievance, to state specific remedies, and to provide the 23 prison 24 supported 25 appropriate instructions to fix these procedural problems, the court concluded that the 26 inmate was required to exhaust his remedies. Id. at 827. 27 28 with the by appropriate grievance medical form. Id. Because each regulations, and 2As screening was because the inmate had received noted, the Magistrate Judge found that this created some ambiguity. (ECF No. 44 at 18.) 8 1 Similarly here, Plaintiff was given proper instructions on the need to separate his 2 single grievance into two. (ECF No. 37 at 52; ECF No. 23-1 at 2-3.) Plaintiff has not 3 shown that he cannot pursue the necessary sequence of appeals even if his grievance 4 was improperly screened at the first and second levels as containing two separate 5 issues because he was instructed what to do. 6 Proper exhaustion requires “a grievant [to] use all steps the prison holds out, 7 enabling the prison to reach the merits of the issue.” Griffin v. Arpaio, 557 F.3d 1117, 8 1119 (9th Cir. 2009). The Magistrate Judge correctly found that Plaintiff did not use all 9 steps available to him. Accordingly, the Court will adopt the R&R. 10 V. CONCLUSION 11 The Court notes that the parties made several arguments and cited to several 12 cases not discussed above. The Court has reviewed these arguments and cases and 13 determines that they do not warrant discussion as they do not affect the outcome of 14 Defendant’s Motions or Plaintiff’s objection to the R&R. 15 It is therefore ordered, adjudged and decreed that the Report and 16 Recommendation of Magistrate Judge William G. Cobb (ECF No. 44) is accepted and 17 adopted in full. 18 It is further ordered that Defendants’ motion to dismiss/motion for summary 19 judgment (ECF Nos. 23, 24) are granted. Plaintiff’s claim is dismissed with prejudice. 20 The Clerk is directed to enter judgment accordingly and close this case. 21 DATED THIS 14th day of August 2017. 22 23 24 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 25 26 27 28 9

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?