Thomas v. Marks et al
Filing
54
ORDERED that Defendants' motion for summary judgment, (ECF No. 44 ), is GRANTED. IT IS FURTHER ORDERED that the Clerk of Court ENTER JUDGMENT accordingly and CLOSE this case. (For Distribution by law library.)(Copies have been distributed pursuant to the NEF - DRM)
1
UNITED STATES DISTRICT COURT
2
DISTRICT OF NEVADA
3
***
4
EDDIE THOMAS,
5
Plaintiff,
6
7
Case No. 3:23-CV-00131-CLB 1
v.
ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
[ECF No. 44]
DR. MARKS, et al.,
8
Defendants.
9
10
This case involves a civil rights action filed by Plaintiff Eddie Thomas (“Thomas”)
11
against Defendants Myles Etcheberry, Erin Parks, and Dr. Dana Thomas (collectively
12
referred to as “Defendants”). 2 Currently pending before the Court is Defendants’ motion
13
for summary judgment. (ECF Nos. 44, 47.) 3 Thomas responded, (ECF No. 50), and
14
Defendants replied. (ECF No. 52.) For the reasons stated below, the Court grants
15
Defendants’ motion for summary judgment, (ECF No. 44).
16
I.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
17
Thomas is an inmate in the custody of the Nevada Department of Corrections
18
(“NDOC”). (ECF No. 1.) On March 24, 2023, Thomas submitted a civil rights complaint
19
under 42 U.S.C. § 1983 together with an application to proceed in forma pauperis for
20
events that occurred while Thomas was incarcerated at the Lovelock Correctional Center
21
(“LCC”). (ECF Nos. 1, 1-1.) On October 18, 2023, the District Court entered a screening
22
order allowing Thomas to proceed on an Eighth Amendment deliberate indifference to
23
24
25
26
27
28
The parties consented to the undersigned’s jurisdiction to conduct all proceedings
and order the entry of a final judgment in accordance with 28 U.S.C.§ 636(c) and Federal
Rule of Civil Procedure 73. (See ECF No. 53.)
1
Defendants S. Austin and S. Pushton are also named in this case. However, no
proof of service has been filed for either of these defendants. Therefore, the Court
dismisses Defendants S. Austin and S. Pushton pursuant to Fed. R. Civ. P. 4(m).
2
ECF No. 47 consists of an exhibit filed under seal in support of the motion for
summary judgment.
3
1
serious medical needs claim against Defendants. (ECF No. 6.)
2
Thomas’s claim is based upon his allegations that he has suffered from a variety
3
of gastrointestinal issues dating back to 2009, including bloody diarrhea, abdominal pain,
4
and spasms. Thomas claims that these gastrointestinal issues caused him to suffer a loss
5
of energy, difficulty sleeping, and blackouts. (ECF No. 7.) Thomas alleges that Dr. Marks
6
and nurses Pushton and Parks were aware of his ailments through repeated medical kites
7
and grievances.
8
Thomas further alleged that after a long delay, in February 2023, he was seen by
9
a gastroenterologist who performed a colonoscopy. The specialist diagnosed Thomas
10
with inflammation of the colon/intestines and Crohn’s disease. The specialist also said
11
Thomas had polyps that, if left untreated, could result in cancer. On March 9, 2023,
12
Thomas presented an emergency grievance saying he was bleeding and in severe pain
13
to his unit officer, who appears to have been Officer Etcheberry. Etcheberry passed it on
14
to shift sergeant John Doe, who concluded the situation was not an emergency and
15
denied the grievance that day.
16
At the conclusion of discovery, Defendants filed their motion for summary
17
judgment. (ECF No. 44.) In the motion, Defendants argue that Thomas claims must be
18
dismissed for a variety of reasons, including a failure to exhaust administrative remedies.4
19
Specifically, Defendants assert that a review of Thomas’s grievance history establishes
20
that Thomas failed to complete the grievance process related to any of his grievances
21
involving his gastrointestinal issues. (ECF No. 44 at 2, 8-9.) Therefore, Defendants argue
22
Thomas’s case must be dismissed. (Id. at 7-9.)
23
24
25
26
27
28
Defendants assert that Thomas’s claim must be dismissed because his claim
accrued outside the 2-year statute of limitations. (ECF No. 44 at 6-7.) Specifically,
Defendants assert that Thomas admits that his gastrointestinal issues began in 2009 and
therefore any claim he has for these issues accrued in 2011. (Id.) In response, Thomas
asserts that his claims only relate to harms he suffered between March 2021 to March
2023. (ECF No. 50 at 4.) Construing the facts in the light most favorable to Thomas, the
Court agrees that even if Thomas had gastrointestinal issues for some time, the claims
alleged in this case arise from conduct by the named defendants that occurred between
March 2021 to March 2023 and would not be subject to dismissal based on the statute of
limitations.
4
2
1
In opposition to Defendants’ motion, Thomas does not point to any grievance
2
related to these gastrointestinal issues that were fully exhausted prior to the filing of his
3
complaint in March 2023. (ECF No. 50 at 3.) Rather, Thomas appears to concede that he
4
failed to complete the grievance process prior to filing complaint but argues he “moved
5
forward with the Grievance Process” after he filed this lawsuit. (Id.) Although Thomas
6
admits this was “improper,” he argues the PLRA does not require full exhaustion “before
7
a case can be decided.” (Id.) Thomas does not argue that administrative remedies were
8
unavailable to him prior to filing this lawsuit.
9
In reply, Defendants argue that summary judgment must be entered based on
10
Thomas’s concession that he failed to exhaust his administrative remedies prior to filing
11
this lawsuit. (ECF No. 52.)
12
II.
LEGAL STANDARD
13
“The court shall grant summary judgment if the movant shows that there is no
14
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
15
of law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The
16
substantive law applicable to the claim determines which facts are material. Coles v.
17
Eagle, 704 F.3d 624, 628 (9th Cir. 2012) (citing Anderson v. Liberty Lobby, 477 U.S. 242,
18
248 (1986)). Only disputes over facts that address the main legal question of the suit can
19
preclude summary judgment, and factual disputes that are irrelevant are not material.
20
Frlekin v. Apple, Inc., 979 F.3d 639, 644 (9th Cir. 2020). A dispute is “genuine” only where
21
a reasonable jury could find for the nonmoving party. Anderson, 477 U.S. at 248.
22
The parties subject to a motion for summary judgment must: (1) cite facts from the
23
record, including but not limited to depositions, documents, and declarations, and then
24
(2) “show[] that the materials cited do not establish the absence or presence of a genuine
25
dispute, or that an adverse party cannot produce admissible evidence to support the fact.”
26
Fed. R. Civ. P. 56(c)(1). Documents submitted during summary judgment must be
27
authenticated, and if only personal knowledge authenticates a document (i.e., even a
28
review of the contents of the document would not prove that it is authentic), an affidavit
3
1
attesting to its authenticity must be attached to the submitted document. Las Vegas
2
Sands, LLC v. Neheme, 632 F.3d 526, 532-33 (9th Cir. 2011). Conclusory statements,
3
speculative opinions, pleading allegations, or other assertions uncorroborated by facts
4
are insufficient to establish the absence or presence of a genuine dispute. Soremekun v.
5
Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007).
6
The moving party bears the initial burden of demonstrating an absence of a
7
genuine dispute. Soremekun, 509 F.3d at 984. “Where the moving party will have the
8
burden of proof on an issue at trial, the movant must affirmatively demonstrate that no
9
reasonable trier of fact could find other than for the moving party.” Soremekun, 509 F.3d
10
at 984. However, if the moving party does not bear the burden of proof at trial, the moving
11
party may meet their initial burden by demonstrating either: (1) there is an absence of
12
evidence to support an essential element of the nonmoving party’s claim or claims; or (2)
13
submitting admissible evidence that establishes the record forecloses the possibility of a
14
reasonable jury finding in favor of the nonmoving party. See Pakootas v. Teck Cominco
15
Metals, Ltd., 905 F.3d 565, 593-94 (9th Cir. 2018); Nissan Fire & Marine Ins. Co. v. Fritz
16
Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). The court views all evidence and any
17
inferences arising therefrom in the light most favorable to the nonmoving party. Colwell v.
18
Bannister, 763 F.3d 1060, 1065 (9th Cir. 2014). If the moving party does not meet its
19
burden for summary judgment, the nonmoving party is not required to provide evidentiary
20
materials to oppose the motion, and the court will deny summary judgment. Celotex, 477
21
U.S. at 322-23.
22
Where the moving party has met its burden, however, the burden shifts to the
23
nonmoving party to establish that a genuine issue of material fact exists. Matsushita Elec.
24
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, (1986). The nonmoving must “go
25
beyond the pleadings” to meet this burden. Pac. Gulf Shipping Co. v. Vigorous Shipping
26
& Trading S.A., 992 F.3d 893, 897 (9th Cir. 2021) (internal quotation omitted). In other
27
words, the nonmoving party may not simply rely upon the allegations or denials of its
28
pleadings; rather, they must tender evidence of specific facts in the form of affidavits,
4
1
and/or admissible discovery material in support of its contention that such a dispute
2
exists. See Fed. R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n. 11. This burden is “not
3
a light one,” and requires the nonmoving party to “show more than the mere existence of
4
a scintilla of evidence.” Id. (quoting In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th
5
Cir. 2010)). The non-moving party “must come forth with evidence from which a jury could
6
reasonably render a verdict in the non-moving party’s favor.” Pac. Gulf Shipping Co., 992
7
F.3d at 898 (quoting Oracle Corp. Sec. Litig., 627 F.3d at 387). Mere assertions and
8
“metaphysical doubt as to the material facts” will not defeat a properly supported and
9
meritorious summary judgment motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
10
475 U.S. 574, 586–87 (1986).
11
When a pro se litigant opposes summary judgment, his or her contentions in
12
motions and pleadings may be considered as evidence to meet the non-party’s burden to
13
the extent: (1) contents of the document are based on personal knowledge, (2) they set
14
forth facts that would be admissible into evidence, and (3) the litigant attested under
15
penalty of perjury that they were true and correct. Jones v. Blanas, 393 F.3d 918, 923
16
(9th Cir. 2004).
17
Upon the parties meeting their respective burdens for the motion for summary
18
judgment, the court determines whether reasonable minds could differ when interpreting
19
the record; the court does not weigh the evidence or determine its truth. Velazquez v. City
20
of Long Beach, 793 F.3d 1010, 1018 (9th Cir. 2015). The court may consider evidence in
21
the record not cited by the parties, but it is not required to do so. Fed. R. Civ. P. 56(c)(3).
22
Nevertheless, the court will view the cited records before it and will not mine the record
23
for triable issues of fact. Oracle Corp. Sec. Litig., 627 F.3d at 386 (if a nonmoving party
24
does not make nor provide support for a possible objection, the court will likewise not
25
consider it).
26
III.
DISCUSSION
27
Defendants argue that summary judgment should be entered because Thomas
28
failed to exhaust his administrative remedies prior to filing this lawsuit. (ECF No. 44 at 75
1
8.) Under the Prison Litigation Reform Act “(PLRA”), “[n]o action shall be brought with
2
respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a
3
prisoner confined in any jail, prison, or other correctional facility until such administrative
4
remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is
5
mandatory. Porter v. Nussle, 534 U.S. 516, 524 (2002). The requirement’s underlying
6
premise is to “reduce the quantity and improve the quality of prisoner suits” by affording
7
prison officials the “time and opportunity to address complaints internally before allowing
8
the initiation of a federal case. In some instances, corrective action taken in response to
9
an inmate’s grievance might improve prison administration and satisfy the inmate, thereby
10
obviating the need for litigation.” Id. at 524–25.
11
The PLRA requires “proper exhaustion” of an inmate’s claims. Woodford v. Ngo,
12
548 U.S. 81, 90 (2006). Proper exhaustion means an inmate must “use all steps the prison
13
holds out, enabling the prison to reach the merits of the issue.” Griffin v. Arpaio, 557 F.3d
14
1117, 1119 (9th Cir. 2009) (citing Woodford, 548 U.S. at 90). Thus, exhaustion “demands
15
compliance with an agency’s deadlines and other critical procedural rules because no
16
adjudication system can function effectively without imposing some orderly structure on
17
the course of its proceedings.” Woodford, 548 U.S. at 90–91.
18
In the Ninth Circuit, a motion for summary judgment will typically be the appropriate
19
vehicle to determine whether an inmate has properly exhausted his or her administrative
20
remedies. Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 2014). “If undisputed evidence
21
viewed in the light most favorable to the prisoner shows a failure to exhaust, a defendant
22
is entitled to summary judgment under Rule 56. If material facts are disputed, summary
23
judgment should be denied, and the district judge rather than a jury should determine the
24
facts.” Id. at 1166. The question of exhaustion “should be decided, if feasible, before
25
reaching the merits of a prisoner’s claim.” Id. at 1170.
26
Failure to exhaust is an affirmative defense. Jones v. Bock, 549 U.S. 199, 216
27
(2007). The defendant bears the burden of proving that an available administrative
28
remedy was unexhausted by the inmate. Albino, 747 F.3d at 1172. If the defendant makes
6
1
such a showing, the burden shifts to the inmate to “show there is something in his case
2
that made the existing and generally available administrative remedies effectively
3
unavailable to him by ‘showing that the local remedies were ineffective, unobtainable,
4
unduly prolonged, inadequate, or obviously futile.’” Williams v. Paramo, 775 F.3d 1182,
5
1191 (9th Cir. 2015) (quoting Albino, 747 F.3d at 1172).
6
A.
NDOC’s Inmate Grievance System
7
Administrative Regulation (“AR”) 740 governs the grievance process at NDOC
8
institutions. An inmate must grieve through all three levels: (1) Informal; (2) First Level;
9
and (3) Second Level. (See ECF Nos. 44-6, 44-7.)5 The inmate may file an informal
10
grievance within six months “if the issue involves personal property damages or loss,
11
personal injury, medical claims or any other tort claims, including civil rights claims.” (ECF
12
No. 44-7 at 11.) The inmate’s failure to submit the informal grievance within this period
13
“shall constitute abandonment of the inmate’s grievance at this, and all subsequent
14
levels.” (Id. at 12.) NDOC staff is required to respond within forty-five days. (Id. at 13.)
15
Per AR 740, a grievance at any level may be either, “granted, denied, partially
16
granted, abandoned, duplicate, not accepted, or grievable, resolved, settled, withdrawn;
17
or referred to the Office of the Inspector General.” (ECF No. 44-7 at 3.) If a grievance is
18
“granted” or resolved by “settlement” at any level, the grievance process is considered
19
complete. (Id. at 6.) However, if a grievance is either “partially granted, denied, or
20
resolved” at any level, the inmate must appeal the response to the next level for the
21
grievance process to be deemed “complete” for purposes of exhausting their
22
administrative remedies. (Id.)
23
The appeal of an informal grievance is called a “First Level Grievance” and must
24
be filed within 5 days of receiving a response. (Id. at 13.) A First Level Grievance should
25
26
27
28
AR 740 was updated and modified during the time frames applicable to this case.
In this case, two different versions of AR 740 were in effect during the facts of this case.
(See ECF Nos. 44-6 (effective November 20, 2018); 44-7 (effective April 28, 2022).) For
clarity, all references to AR 740 in this order will be made to the April 28, 2022 version of
AR 740 unless otherwise noted. (ECF No. 44-7.)
5
7
1
be reviewed, investigated, and responded to by the Warden at the institution where the
2
incident being grieved occurred; however, the Warden may utilize any staff in the
3
development of a grievance response. (Id.) The time limit for a response to the inmate is
4
forty-five days. (Id. at 14.)
5
Within five days of receiving a First Level response, the inmate may appeal to the
6
Second Level Grievance, which is subject to still-higher review. (Id. at 15.) Officials are to
7
respond to a Second Level Grievance within sixty days, specifying the decision and the
8
reasons the decision was reached. (Id.at 15.) Upon receiving a response to the Second
9
Level Grievance, the inmate will be deemed to have exhausted his administrative
10
remedies and may then file a civil rights complaint in federal court.
11
B.
Analysis
12
In this case, Defendants argue Thomas failed to properly exhaust his
13
administrative remedies because he did not appeal any grievances prior to filing this
14
lawsuit through all the necessary grievance levels. (ECF No. 44 at 7-8.) To support their
15
arguments, Defendants submitted authenticated and admissible copies of Thomas’s full
16
inmate grievance history dating back to 2008 forward, a copy of the only grievance that
17
was appealed to the First Level, and a declaration from Associate Warden Mario Portillo
18
authenticating these documents. (See ECF No. 44-3 (Thomas’s Inmate Grievance
19
History); ECF No. 44-4 (Copies of Grievance No. 20063132081); ECF No. 44-9
20
(Authenticating Declaration).)
21
A careful review of these records supports Defendants arguments. Although
22
Thomas did file several grievances related to his gastrointestinal issues, he only filed an
23
appeal to the First Level for one of those grievances, Grievance No. 20063132081
24
(“Grievance 2081”). (See ECF No. 44-3.) Thomas initiated Grievance 2081 on January
25
8, 2022 by stating that he was expiring stomach pains, blood in his stools and his condition
26
was getting worse. (ECF No. 44-4 at 7-8.) Thomas was provided a response of “partially
27
granted” to this grievance on October 17, 2022. (ECF No. 44-3 at 8; ECF No. 44-4 at 6.)
28
Thomas appealed this response to the First Level on October 19, 2022. (ECF No. 44-3
8
1
at 2; ECF No. 44-4 at 8.) Thomas received a response to First Level Grievance on
2
February 21, 2023, which stated that the grievance was “resolved.” (ECF No. 44-4 at 2.)
3
Per AR 740, a grievance that is deemed “resolved,” must still be appealed to the Second
4
Level before it is deemed exhausted. (ECF No. 44-7 at 6.) This lawsuit was filed on March
5
24, 2023. (ECF Nos. 1, 1-1.) However, according to the records submitted by Defendants,
6
Thomas did not appeal the First Level response to Grievance 2081 to the Second Level
7
prior to filing this lawsuit as mandated by AR 740. (See ECF Nos. 44-3.)
8
In his opposition, Thomas concedes he did not file his Second Level Grievance
9
prior to filing this lawsuit. (ECF No. 50 at 3.) Thomas expressly acknowledges and admits
10
that he filed his Second Level Grievance for Grievance 2081 after he filed this lawsuit.
11
(Id.) Although Thomas admits that filing this lawsuit prior to filing his Second Level
12
Grievance was “improper,” he asserts that his claim can “still be considered exhausted
13
because it was finalized” and the prison rules are not statutes. (ECF No. 50 at 3.) To show
14
the Second Level Grievance was eventually “finalized,” Thomas attaches his Second
15
Level Grievance for Grievance 2081 to his opposition, which is dated April 26, 2024 --
16
over one year after this lawsuit was initiated. (Id. at 22.)
17
Contrary to Thomas’s arguments, it is well established that the PLRA requires
18
“proper exhaustion” of an inmate’s claims. See Woodford, 548 U.S. at 90. Proper
19
exhaustion means an inmate must “use all steps the prison holds out, enabling the prison
20
to reach the merits of the issue.” Griffin, 557 F.3d at 1119 (citing Woodford, 548 U.S. at
21
90) (emphasis added). Additionally, “proper exhaustion demands compliance with an
22
agency’s deadlines and other critical procedural rules.” Woodford, 548 U.S. at 90. Here,
23
it appears Thomas failed to follow all required steps to allow prison officials to reach the
24
merits of the issue as he failed to file any grievance related to the claims in this case past
25
the First Level prior to filing this lawsuit. Accordingly, the Court finds that Thomas failed
26
to exhaust his administrative remedies pursuant to NDOC Administrative Regulation 740
27
prior to initiating this action. As such, Defendants have met their burden to establish that
28
Thomas failed to exhaust his administrative remedies in his case.
9
1
The burden now shifts to Thomas “to come forward with evidence showing that
2
there is something in his particular case that made the existing and generally available
3
administrative remedies effectively unavailable to him.” Albino, 747 F.3d at 1172 (citing
4
Hilao v. Estate of Marcos, 103 F.3d 767, 778 n. 5 (9th Cir. 1996)). However, Thomas
5
provides no evidence to show that administrative remedies were unavailable to him.
6
Because Thomas presents no evidence that administrative remedies were effectively
7
“unavailable,” the Court concludes that Thomas failed to exhaust available administrative
8
remedies prior to filing this action and Defendants’ motion for summary judgment must
9
be granted. 6
10
IV.
Consistent with the above, IT IS ORDERED that Defendants’ motion for summary
11
12
CONCLUSION
judgment, (ECF No. 44), is GRANTED.
IT IS FURTHER ORDERED that the Clerk of Court ENTER JUDGMENT
13
14
accordingly and CLOSE this case.
15
IT IS SO ORDERED.
16
DATED: January 28, 2025
17
18
UNITED STATES MAGISTRATE JUDGE
19
20
21
22
23
24
25
26
27
28
Having determined that Thomas failed to exhaust his administrative remedies, the
Court need not address Defendants’ remaining arguments in favor or summary judgment.
6
10
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?