Washington v. Howard
Filing
28
OPINION AND ORDER by Judge Ronald A. White : Granting 25 Motion to Dismiss without prejudice (case terminated) (acg, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
ANTHONY B. WASHINGTON,
Plaintiff,
v.
DR. JAMES HOWARD,
in his individual capacity,
Defendant.
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No. CIV 14-481-RAW-SPS
OPINION AND ORDER
This action is before the court on the defendant’s motion to dismiss Plaintiff’s
complaint or for summary judgment. The court has before it for consideration Plaintiff’s
complaint (Dkt. 1), the defendant’s motion (Dkt. 25), and a special report prepared by the
Oklahoma Department of Corrections (DOC) at the direction of the court, in accordance with
Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978) (Dkt. 26). Plaintiff has not filed a response
to the defendant’s motion.
Plaintiff, an inmate in the custody of the DOC who is incarcerated at Davis
Correctional Facility in Holdenville, Oklahoma, brings this action under the authority of 42
U.S.C. § 1983, seeking relief for alleged Eighth Amendment violations during his
incarceration at Oklahoma State Penitentiary in McAlester, Oklahoma. The defendant is Dr.
James Howard, a physician who treated Plaintiff through the DOC’s psychiatric services.
Plaintiff alleges Dr. Howard prescribed him the medication Prolixin. Plaintiff claims
this medication caused him to have delusions of having to make a sacrifice and to make
numerous attempts to harm himself. Plaintiff alleges he has many scars over his body, and
while under the defendant’s care, he removed his testicles because of the delusions. He
asserts he asked to stop the medication on several occasions, but it was not discontinued until
June 2013.
While subsequently housed at a mental health unit at Joseph Harp Correctional Center
in Lexington, Oklahoma, Plaintiff learned from other inmates that Dr. Howard also had
prescribed the medication for them. Many of the inmates who took Prolixin had delusions
and hallucinations and attempted to harm themselves.
Plaintiff contends that mental health concerns are serious medical needs, and an
individual who suffers from mental illness may not always know how to communicate
effectively with his mental health professionals. Plaintiff’s repeated attempts to harm
himself, however, should have alerted the professionals of the side effects he was
experiencing. Plaintiff asserts that Dr. Howard knew of his serious medical need but
attempted to treat him by medication based on a misdiagnosis. Dr. Howard allegedly did not
act reasonably in response to Plaintiff’s repeated attempts to harm himself, when Plaintiff’s
actions were so obvious that a lay person would have recognized the seriousness of his
condition.
The defendant alleges, among other things, that Plaintiff has failed to exhaust the
administrative remedies for any of his claims. “No action shall be brought with respect to
prison conditions under 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). “An inmate who begins the grievance process but does
not complete it is barred from pursuing a § 1983 claim under PLRA for failure to exhaust his
administrative remedies.” Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002)
(citation omitted). In deciding a motion to dismiss based on nonexhaustion, the court can
consider the administrative materials submitted by the parties. See Steele v. Fed. Bureau of
Prisons, 355 F.3d 1204, 1212 (10th Cir. 2003), abrogated in part on other grounds, Jones
v. Bock, 549 U.S. 199 (2007).
According to the DOC Offender Grievance Process, OP-090124, an inmate first must
attempt to resolve his complaint informally by communicating with staff within three days
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of the incident. (Dkt. 26-6 at 82-83).1 If that is unsuccessful, he may submit a Request to
Staff (RTS) within seven calendar days of the incident, alleging only one issue per form. Id.
at 83. If the offender does not receive a response to his RTS within 30 calendar days of
submission, he may submit a grievance to the Review Authority (warden’s office), asserting
only the issue of the lack of response to the RTS. Id. If the complaint is not resolved after
the response to the RTS, the offender then may file a grievance. Id. at 83-84. If the
grievance also does not resolve the issue, the inmate may appeal to the Administrative
Review Authority or the Chief Medical Officer. Id. at 85-89. The administrative process is
exhausted only after all of these steps have been taken.
An inmate may submit a grievance of a sensitive or emergency nature directly to the
ARA (or, if medical in nature, the MSA), if the complaint is of a sensitive nature or there is
a substantial risk of personal injury or other irreparable harm. Id. at 90.
The defendant alleges that prior to filing this lawsuit, Plaintiff did not file a single
Request to Staff, grievance, or appeal to OSP staff, the DOC Administrative Authority or the
DOC MSA concerning any of the claims in his complaint. On December 18, 2013, Plaintiff
requested that Dr. Odunkwe write a letter describing Plaintiff’s behavioral history while
receiving Prolixin injections and after the medication was discontinued. Plaintiff requested
the letter for his legal work against the marketing company that made the medication. (Dkt.
26-2 at 126-27). Dr. Odunkwe responded that the mental health staff was not permitted to
get involved in an inmate’s legal work, pursuant to DOC policy. Id. at 126. To the extent
this RTS can be construed to relate to Plaintiff’s claims against Dr. Howard, Plaintiff did not
file a grievance to appeal the RTS response or otherwise attempt to proceed with the
grievance process on this issue. Plaintiff, therefore, has not complied with the requirement
that he properly exhaust his available administrative remedies before bringing a lawsuit, and
this action must be dismissed.
1
The court takes judicial notice of the Department of Correction’s Offender Grievance
Process, OP-090124, which is available at the DOC website at https://www.ok.gov/doc. See Triplet
v. Franklin, 2010 WL 409333, at *6 n.8 (10th Cir. Feb. 5, 2010) (taking judicial notice of the
Oklahoma Department of Corrections website, pursuant to Fed. R. Evid. 201).
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ACCORDINGLY, the defendants’ motion to dismiss (Dkt. 25) is GRANTED, and
this action is DISMISSED WITHOUT PREJUDICE for failure to exhaust administrative
remedies, pursuant to 42 U.S.C. § 1997e(a).
IT IS SO ORDERED this 23rd day of March 2016.
Dated this 23rd day of March, 2016.
J4h4i0
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