McElwee v. Truelove et al

Filing 50

OPINION AND ORDER by District Judge James H. Payne: Granting 35 defendants Motion for Summary Judgment and this action is DISMISSED for failure to exhaust administrative remedies pursuant to 42 U.S.C. § 1997e(a). (acg, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
RAY ARTHUR McELWEE,
Plaintiff,
v.
MS. TRUELOVE, et al.,
Defendants.

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No. CIV 17-240-JHP-SPS

OPINION AND ORDER
This action is before the Court on Defendants’ motion for summary judgment. The
Court has before it for consideration Plaintiff’s complaint (Dkt. 1), Defendants’ motion
(Dkt. 35), Plaintiff’s response to the motion (Dkt. 36), Defendants’ reply (Dkt. 37), and
Plaintiff’s surreply (Dkt. 41). Plaintiff, a pro se prisoner in the custody of the Oklahoma
Department of Corrections is incarcerated at Howard McLeod Correctional Center in
Atoka, Oklahoma. He brings this action under the authority of 42 U.S.C. § 1983, seeking
relief for alleged constitutional violations during his incarceration in the Okmulgee County
Jail (“OCJ”) in Okmulgee, Oklahoma. The defendants are Ms. Truelove, aka Kimberly
Trulove, OCJ Head Nurse; Mr. McCoy, aka Sam McCoy, OCJ Deputy Warden; and Mr.
Martin, OCJ Administrator.
Standard of Review
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.
Discussion
Plaintiff alleges that on November 2, 2015, he was transferred from the Tulsa
County Jail to the OCJ. On December 29, 2015, he began hearing voices, seeing demons,
and having suicidal thought, along with insomnia. He asserts that from January 2, 2016,
through March 18, 2016, he submitted three sick call requests to the three defendants,
advising that he had not received his medication since he was transferred from Tulsa.
Defendant Nurse Truelove allegedly told Plaintiff that the jail did not treat mental health
problems, and Plaintiff should contact CREOKS counseling about the problem
On April 18, 2016, Plaintiff allegedly contacted CREOKS through a request to staff,
stating he had been diagnosed with post-traumatic stress disorder, schizophrenia, and
depression. He listed his doctor’s and counselor’s names in Tulsa. Plaintiff further
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advised he had not received his medication at OCJ, and his depression was getting worse.1
On or around October 1, 2016, Plaintiff allegedly had another mental breakdown,
the first one having been at the Tulsa County Jail, except this time he thought he was
fighting demons when he actually was fighting with another inmate. Plaintiff was sent to
the Okmulgee County Hospital with a broken right hand and a broken right cheekbone as
a result. He was placed in isolation until October 6, 2016, when he was transferred to the
Department of Corrections where he received his medication.
Plaintiff is requesting monetary relief and relief from his probation and suspended
sentence. The Court notes that Plaintiff cannot receive relief from his criminal sentences
in this civil rights complaint. Instead, he would need to pursue those claims through a
petition for a writ of habeas corpus.
Defendants allege, 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

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Plaintiff has submitted a copy of a request to staff to CREOKS dated April 18, 2016, that
states his symptoms but does not include a disposition of the issue (Dkt. 1 at 5). He also has
submitted a copy of a Request to Staff to CREOKS dated July 1, 2016, also requesting medications
for his symptoms, but again there is no disposition (Dkt. 1 at 4).

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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).
The mandatory Inmate Grievance Procedure is set forth in the Okmulgee County
Criminal Justice Authority Inmate Handbook (Dkt. 35-2 at 7-8) and in the Okmulgee
County Criminal Justice Authority Policy 13-4 (Dkt. 35-3). Plaintiff received a copy of
the Inmate Handbook when he was booked into the jail on November 2, 2015 (Plaintiff’s
Deposition at 64; Dkt. 35-10 at 12).
The Inmate Handbook sets forth the following mandatory inmate grievance
procedure:
You have the right to file a formal complaint whenever you choose.
However, all complaints are encouraged to be resolved informally at the
lowest possible level.
A request to staff can be obtained from staff for informal resolutions. If you
wish to pursue a formal complaint, it is important that the procedures outlined
below are followed in order to ensure that your grievance is promptly
addressed. Grievances filed improperly may be returned without being
reviewed.
Use policy 13-4 Attachment A to grieve issues regarding this facility and
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staff. Grievances will be answered within fifteen (15) working days of receipt
by the grievance coordinator. Appeals must be submitted with five (5) days
of receipt of answer. Appeals shall be answered in twenty (20) working
days unless extended for cause by the Executive Director. The following
rules are to apply to the filing of grievances or they may be returned:
1. Attempt resolutions informally first by writing a request to staff.
2. The form must be completed, signed and dated.
3. Only one additional page will be allowed.
4. The grievance must be submitted within seven (7) days after the incident
becomes known to the inmate.
5. Request must be clear and easily understood.
6. Grievances cannot be filed as a misconduct appeal.
7. Grievances cannot be filed on behalf of another inmate.
8. Grievances cannot be filed on a State or Federal court decision, law or
regulation.
(Dkt. 35-2 at 7-8).
The inmate grievance procedure required Plaintiff to file a formal grievance within
seven days of an alleged incident. See Dkt. 35-2 at 7-8; Dkt. 35-3 at 2). Defendant Sam
McCoy states by affidavit that all times relevant to Plaintiff’s complaint, McCoy was
fulfilling the roles and duties of the Executive Director of the Okmulgee County Criminal
Justice Authority. McCoy further asserts that on May 25, 2016, he received a Request to
Staff from Plaintiff, requesting mental health medication. The request was forwarded to
Defendant Kimberly Trulove, Health Services Administrator, who was in charge of such
matters.
Defendant McCoy also alleges that if Plaintiff sent an additional Request to Staff to
Defendant John Martin, McCoy never saw it, as Martin was ill with cancer at the time and

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no longer at the facility. 2

After a thorough review of Plaintiff’s jail file, McCoy

determined that Plaintiff never submitted any formal grievances pursuant to the handbook
and policy.
Plaintiff alleges in his response to the motion for summary judgment (Dkt. 36) that
he attempted to use the inmate grievance procedure process by asking officers for the
necessary paperwork.

He claims, however, that his request was refused.

Plaintiff

therefore waited until he was in the Department of Corrections to file suit.
“Proper exhaustion demands compliance with an agency’s deadlines and other
critical procedural rules.” Woodford v. Ngo, 548 U.S. 81, 90 (2006). Failure to exhaust
is excused only if prison officials impede the prisoner’s attempts. Little v. Jones, 607 F.3d
1245, 1250 (10th Cir. 2010).

“Where prison officials prevent, thwart, or hinder a

prisoner’s efforts to avail himself of an administrative remedy, they render that remedy
‘unavailable’ and a court will excuse the prisoner’s failure to exhaust.” Little v. Jones,
607 F.3d 1245, 1250 (10th Cir. 2010) (citation omitted).
The Court finds Plaintiff has provided no specifics of the alleged denial of a
grievance form. He fails to allege when he made his request or to whom the request was
made. Instead, he asserts only that he asked unnamed “officers” for the form. He also
presents no allegations that he attempted to use the jail’s inmate grievance procedure to
obtain the form. Such conclusory allegations do not establish futility and are insufficient

2

McCoy advises the Court in his affidavit that John Martin is deceased.

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to excuse his failure to exhaust. See Mackey v. Ward, 128 F. App’x 676, 677 (10th Cir.
2005).
After careful consideration of the pleadings and other submitted materials in this
case, the Court is of the view that there are no genuine issues of material fact concerning
whether Plaintiff’s claims are unexhausted.

Therefore, summary judgment must be

GRANTED.
ACCORDINGLY, Defendants’ motion for summary judgment (Dkt. 35) is
GRANTED and this action is DISMISSED for failure to exhaust administrative remedies
pursuant to 42 U.S.C. § 1997e(a).
IT IS SO ORDERED this 26th day of February 2020.

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