Burnett v. Miller et al
Filing
241
OPINION AND ORDER by Judge Ronald A. White: Defendants motion for summary judgment 232 is GRANTED, and Plaintiffs claim regarding the conditions of the medical cell is DISMISSED WITHOUT PREJUDICE. Plaintiffs motion for leave to file second motion for summary judgment 230 is DENIED as moot. (acg, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
STEPHEN CRAIG BURNETT,
Plaintiff,
v.
KATHY MILLER, et al.,
Defendants.
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No. CIV 12-158-RAW-SPS
OPINION AND ORDER
Plaintiff appealed the Opinion and Order dismissing this action (Dkt. 202) to the
Tenth Circuit Court of Appeals. The appellate court affirmed in part and remanded in part
for further proceedings concerning Plaintiff’s claim of unconstitutional conditions in the
medical cell at Davis Correctional Facility (DCF). Burnett v. Miller, No. 14-7069 (10th Cir.
Nov. 20, 2015) (unpublished) (Dkt. 213). Defendants have filed a motion for summary
judgment on the remanded issue (Dkt. 232), Plaintiff has filed a response to the motion (Dkt.
236), and Defendants have filed a reply (Dkt. 237). Plaintiff also has filed a motion for leave
to file a second motion for summary judgment (Dkt. 230).
Factual Background
On November 5, 2011, while incarcerated at DCF, Plaintiff submitted a request for
medical services, because he had experienced chest pains after minor exertion. He was seen
in the DCF clinic the next day by Defendant Colpetzer, a registered nurse, who assessed the
chest pain as cardiac, musculoskeletal, or pleuritic. Colpetzer noted that Plaintiff’s blood
pressure was elevated, and she administered an ECG which was noted as “normal.” The
ECG then was submitted to DCF physician Dr. Reiheld who determined the results were
normal.
Over the next month, Plaintiff returned to the clinic for blood pressure monitoring on
numerous occasions, and he submitted additional requests for medical services concerning
his chest pain. On December 7, 2011, Dr. Reiheld diagnosed Plaintiff with “angina new
onset” with a stated plan to schedule Plaintiff for an imaging procedure as soon as possible.
Plaintiff’s condition was not assessed as emergent, and Dr. Reiheld did not believe
immediate transportation to another medical facility was necessary at that time.
On the afternoon of December 7, Dr. Reiheld and Defendant Miller, the DCF Health
Services Administrator, placed Plaintiff in an observation cell within the DCF clinic. The
purpose of his placement there was to monitor him and have him readily accessible for
transportation when an appointment for an imaging stress test was scheduled at Oklahoma
Heart Hospital (OHH).
Plaintiff alleges the conditions in the medical cell amounted to cruel and unusual
punishment. He specifically complains of (1) a lack of heat when the outside temperature
was below freezing, and (2) no food or drink for a day and a half. The nurses’ log for
December 8 at 9:30 p.m. indicated Plaintiff was doing fine and had no complaints of pain or
distress. In addition, a monitoring form dated December 9 showed he was asleep from
midnight until 6:00 a.m., and he was lying or sitting until 8:00 a.m. That form also had a
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notation to “Notify Health Services Staff For: NPO -- Ø food or drink.”1 As of 8:30 a.m.
on December 9, Burnett was being transported to OHH.
Summary Judgment Standards
Summary judgment is appropriate when “there is no genuine dispute as to any material
fact and the movant is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a). A
dispute is genuine if the evidence is such that “a reasonable jury could return a verdict for
the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact
is material if it “might affect the outcome of the suit under the governing law.” Id. In
making this determination, “[t]he evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in his favor.” Id. at 255. A party opposing a motion
for summary judgment, however, may not simply allege there are disputed issues of fact;
rather, the party must support its assertions by citing to the record or by showing the moving
party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c). Thus,
the inquiry for this Court is “whether the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one-sided that one party must prevail as a
matter of law.” Anderson, 477 U.S. at 251-52.
Exhaustion of Administrative Remedies
Defendants allege Plaintiff failed to exhaust his administrative remedies before
bringing this claim. “No action shall be brought with respect to prison conditions under
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“NPO” is a medical abbreviation for the Latin “non per os,” meaning “nothing by mouth.”
Stedman’s Medical Dictionary 612240 (Westlaw ed. Nov. 2014).
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section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison,
or other correctional facility until such administrative remedies as are available are
exhausted.” 42 U.S.C. § 1997e(a). Inmates are required to exhaust available administrative
remedies, and suits filed before the exhaustion requirement is met must be dismissed. Booth
v. Churner, 532 U.S. 731, 740-41 (2001); Yousef v. Reno, 254 F.3d 1214, 1216 n.1 (10th Cir.
2001).
The procedure for exhausting administrative remedies is set forth in DOC Policy OP090124, “Offender Grievance Process,” effective May 24, 2011 (Dkt. 232-2). An inmate
first must attempt to resolve his complaint informally within three days of the incident. If
that is unsuccessful, he may submit a Request to Staff (RTS) within seven calendar days of
the incident, raising only one issue in each RTS. If the complaint still is not resolved, he then
may file a grievance with the reviewing authority within 15 calendar days of the incident, or
the date of the response to the RTS, whichever is later. If the grievance does not resolve the
issue, the inmate may appeal to the DOC Administrative Review Authority or the Chief
Medical Officer, whichever is appropriate, within 15 calendar days of receipt of the
reviewing authority’s response or any amended response. The administrative process is
exhausted only after all of these steps have been taken.
The record shows that during the time applicable to this lawsuit, Plaintiff used the
DCF administrative remedies process to file eleven grievances. None of those grievances,
however, mentioned Plaintiff’s placement in the medical observation cell or the conditions
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of confinement in the medical observation cell:
(1) Grievance No. 2011-1001-405-G, submitted on December 20, 2011, concerned
religious issues. (Dkt. 232-4 at 3).
(2) Grievance No. 2012-1001-4-G, submitted on January 4, 2012, concerned the delay
in treatment from the time he requested medical services until he saw Dr. Reiheld. He also
challenged his November 6, 2011, ECG, because it was conducted by a nurse instead of a
doctor (Dkt. 232-4 at 14-15).
(3) Grievance No. 2012-1001-30-G, submitted on January 9, 2012, concerned the
facility’s legal mail policy (Dkt. 232-4 at 21-22).
(4) Grievance 2012-1001-60-G, submitted on January 24, 2012, concerned Plaintiff’s
legal mail (Dkt. 232-4 at 29).
(5) Grievance 2012-1001-76-G, submitted on January 27, 2012, concerned Plaintiff’s
mail to the Governor (Dkt. 232-5 at 3-4).
(6) Grievance 2012-1001-86-G, submitted on February 1, 2012, concerned the
processing of Plaintiff’s grievances (Dkt. 232-5 at 10).
(7) Grievance 2012-1001-163-G, submitted on February 29, 2012, concerned a delay
in Plaintiff’s receiving his medication from December 13, 2011, until February 27, 2012
(Dkt. 232-5 at 20).
(8) Grievance 2012-1001-193-G, submitted on March 19, 2012, concerned Plaintiff’s
request for copies of his medical records (Dkt. 232-5 at 31).
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(9) Grievance 2012-1001-223-G, submitted on March 30, 2012, as an “emergency”
grievance, stated medical staff had delayed sending him to a physician in November 2011
and asked the reviewing authority to discipline or replace those staff members. The
grievance was determined to be, among other things, not an emergency, and it was returned
unanswered to Plaintiff on the day it was submitted (Dkt. 232-5 at 37-38).
(10) Grievance 2012-1001-273-G, submitted on April 18, 2012, concerned Plaintiff’s
unanswered Request to Staff concerned money withdrawn from his trust fund account (Dkt.
232-5 at 49).
(11) Grievance 2011-1001-228-G on October 17, 2011, concerned having Plaintiff’s
son listed as Plaintiff’s attorney of record (Dkt. 232-4 at 34-39).
For Plaintiff’s remanded claim to be considered on the merits, Plaintiff must have
pursued to conclusion the exhaustion of administrative remedies pursuant to OP-090124.
“[P]roper exhaustion of administrative remedies . . . means using all steps that the agency
holds out, and doing so properly (so that the agency addresses the issues on the merits).”
Woodford v. Ngo, 548 U.S. 81, 90 (2006) (citation omitted) (emphasis in original). “Proper
exhaustion demands compliance with an agency’s deadlines and other critical procedural
rules because no adjudicative system can function effectively without imposing some orderly
structure on the course of its proceedings.”
Id. at 90-91.
“[T]o properly exhaust
administrative remedies prisoners must ‘complete the administrative review process in
accordance with the applicable procedural rules’--rules that are defined not by the PLRA, but
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by the prison grievance process itself.” Jones v. Bock, 549 U.S. 199, 218 (2007) (quoting
Woodford, 548 U.S. at 88).
Plaintiff complains that the Grievance Coordinator’s affidavit which is attached to
Defendant’s motion should not be considered by the Court, because OP-090124 does not
specify such title or function for the processing of grievances. He also asserts the policy does
not provide for the Warden’s authorization to appoint a designee to perform his duties as the
reviewing authority for grievances. Plaintiff speculates that if he had included his allegations
about the conditions in the medical cell in Grievance No. 2012-1001-4-G, that grievance
would have been rejected for including an unrelated, multiple issue. He does not explain
why he did not file a separate grievance regarding the medical cell.
Plaintiff claims that under the PLRA, he is only required to exhaust available
administrative remedies. He admits there was an administrative remedies process in place
at his facility at the relevant time but contends there was no actual administrative remedy
available to him for the claim at issue, because DCF staff members routinely violated OP090124. The Supreme Court, however, has held that a prisoner must exhaust administrative
remedies even when the relief sought cannot be granted by the administrative process.
Booth, 532 U.S. at 739.
Citing Ross v. Blake, __ U.S. __, 136 S.Ct. 1850 (2016), Plaintiff alleges the grievance
policy is “overly complicated, confusing, labyrinthine, and incapable of being understood”
(Dkt. 236 at 8). Ross concerned a lower court’s unwritten “special circumstances” exception
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to the exhaustion requirement of the PLRA. Id. at 1855. The Supreme Court rejected that
approach as inconsistent with the PLRA, finding the only limit to the exhaustion mandate is
when the administrative remedies are not “available.” Id. at 1858-62. “[A]n inmate is
required to exhaust those, but only those, grievance procedures that are ‘capable of use’ to
obtain ‘some relief for the action complained of.’” Id. at 1859 (quoting Booth, 532 U.S. at
738). This Court finds Plaintiff’s arguments based on Ross are meritless, especially when
he has managed to use the prison administrative remedies process on so many occasions.
The Court further finds Plaintiff failed to make any attempt to use the administrative
remedies process to resolve his claim concerning the conditions of his confinement in the
medical observation cell at DCF, and he has presented no valid reason to excuse him from
this failure. An inmate does not get to pick and choose the appropriateness of a particular
procedure to his situation, or rely on his own contrary interpretations of the process, or
adhere to a belief that he should not have to comply with available processes. See Thomas
v. Parker, 609 F.3d 1114, 1119 (10th Cir. 2010).
As demonstrated by the administrative records presented in this case, Plaintiff filed
at least eleven grievances between October 17, 2011, and April 18, 2012. He repeatedly was
provided with responses to his submissions, and he repeatedly appealed facility-level
decisions to the DOC Administrative Review Authority (Dkts. 232-4, 232-5). The process
clearly has been available to him.
After careful review, the Court finds there is no genuine issue of material fact, Fed.
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R. Civ. P. 56(a), and Plaintiff has failed to exhaust the available administrative remedies for
his claim as required by 42 U.S.C. § 1997e(a).
ACCORDINGLY, Defendants’ motion for summary judgment (Dkt. 232) is
GRANTED, and Plaintiff’s claim regarding the conditions of the medical cell is
DISMISSED WITHOUT PREJUDICE. Plaintiff’s motion for leave to file second motion
for summary judgment (Dkt. 230) is DENIED as moot.
IT IS SO ORDERED this 26th day of September 2017.
Dated this 26 th day of September, 2017.
J4h4i0
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