Ford v. GEO Group Inc et al

Filing 44

ORDER; Court declines to adopt the Report and Recommendation of the Magistrate Judge, and this case is re-referred to Magistrate Judge Goodwin re 38 REPORT AND RECOMMENDATION re 28 MOTION for Summary Judgment filed by GEO Group Inc, H A Rios, Jr, Robert Pine. Signed by Honorable David L. Russell on 9/30/14. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
ERIC J. FORD,
Plaintiff,
v.
GEO GROUP INC. et al.,
Defendants.

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Case No. CIV-13-1013-R

ORDER
Before the Court is the Report and Recommendation of United States Magistrate
Judge Charles B. Goodwin entered August 8, 2014. Doc. No. 38. Plaintiff has filed an
Objection to the Magistrate Judge’s conclusions in the Report and Recommendation.
Doc. No. 43. Pursuant to 28 U.S.C. § 636(b)(1)(B), the Court reviews the Report and
Recommendation de novo in light of Plaintiff’s objections.
Background
Plaintiff, a state prisoner, brings an action under 42 U.S.C. § 1983. Doc. No. 1, at
1. Defendants move for summary judgment based partly on their contention that Plaintiff
failed to exhaust administrative remedies. Doc. No. 28, at 3. On March 14, 2013, Plaintiff
filed a Request to Staff (“RTS”) requesting a refill on a prescription. S.R. Att. 7, Doc.
No. 26-7. He received a response on March 19 stating: “Improperly submitted. Refer to
OP 090124 prior to re-submission.” Id. Plaintiff then submitted a grievance in which he
again requested a prescription refill. S.R. Att. 8, Doc. No. 26-8. On March 29, the

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grievance was returned to Plaintiff unanswered, stating: “Please write your request for
your cream on an offender request.” S.R. Att. 9, Doc. No. 26-9.
Plaintiff then submitted a grievance appeal complaining that the Reviewing
Authority was not following the Offender Grievance Process (“OGP”). S.R. Att. 10, Doc.
No. 26-10. On April 30, Plaintiff received a letter in response to his grievance appeal
from Genese McCoy, the Medical Services Administrator. S.R. Att. 11, Doc. No. 26-11.
In the letter, she informed Plaintiff that he had indeed followed the OGP when he
submitted his March 14 RTS. Id. She then told Plaintiff the following: “I have contacted
the correctional health services administrator at your facility, Robert Pine, and instructed
him to amend the original response that was initially affixed to the ‘Disposition’ section
of the form on March 19, 2013. Once you receive an amended response to your ‘Request
to Staff’ form, you may proceed with the grievance process, in accordance with OP090124.” Id.
McCoy then sent a memorandum to Pine on April 30, directing him to amend the
original March 19 RTS response and provide the amended response to Plaintiff within ten
working days of receiving her memorandum. S.R. Att. 12, Doc. No. 26-12. It is
undisputed that there is no record of Ford providing Plaintiff with an amended response.
See S.R. Att. 13, Doc. No. 26-13. It is also undisputed that Plaintiff did not submit any
additional paperwork complaining of Pine’s failure to provide an amended response. See
id.; Doc. No. 33, at 25.
Defendants argue that Plaintiff has not exhausted his administrative remedies
because he did not file a grievance after not receiving the amended response to his RTS.
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Doc. No. 28, at 4. They point to § IV(C)(7) of the OGP, which states that if a
complainant does not receive a response to an RTS within thirty days, he may file a
grievance regarding the lack of response. Id.; OP-090124 § IV(C)(7). Plaintiff argues
that the Court should excuse his failure to exhaust administrative remedies because prison
officials hindered his ability to do so. See 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.” (citation omitted)). He contends that
because Pine did not provide him with an amended response to his RTS, he could not
proceed with the grievance process. Doc. No. 33, at 25.
Analysis
The Court agrees with Plaintiff that he is excused from exhausting his
administrative remedies. Defendants point to no provision in the OGP that explains the
process complainants must follow in this particular case. Defendants refer to § IV(C)(7),
but this provision applies, on its face, only when a complainant has not received an initial
response to an RTS. In our case, Plaintiff did receive a response; he just did not receive
an amended response as ordered by the Administrative Review Authority. The OGP
addresses amended responses to a grievance in § VII(C), but does not mention amended
responses to an RTS. Therefore, the Court must determine if requiring Plaintiff to take
some action in response to his failure to receive an amended response is consistent with
the OGP. After considering the OGP provisions, it is clear that problems arise with each
step of the process if the Court required a complainant like Plaintiff to take such action.
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A. Initial Attempt & Request to Staff
The first step in the OGP is for the complainant to speak to an appropriate staff
member about the issue. OP-090124 § IV(B). If Plaintiff had attempted to speak with a
staff member about Pine’s failure to provide an amended response, that may have
resolved the issue. But the Court must assume that speaking to a staff member will not
always work in every case, just as the OGP assumes. Thus, if Plaintiff had spoken to a
staff member and the issue was not resolved, he would have to file an RTS, see OP090124 § IV(C), which raises its own problems.
The OGP states that an RTS must “detail[] the issue/incident completely but
briefly.” Id. If the Court assumes “incident” refers to Plaintiff not receiving a prescription
refill, this is inconsistent with another provision of the OGP. Because he had already
submitted a proper RTS regarding this issue, he would run the risk of being put on a
grievance restriction if he later filed a second RTS on this same matter. See OP-090124
§ IX(A)(1)(c) (listing one type of abuse of process as “The repeated submitting of
grievances or ‘Requests to Staff’ about an issue previously addressed by staff in their
written response”).
If, instead, the Court assumes “incident” refers to Plaintiff’s failure to receive an
amended response to his original RTS, Plaintiff would not have known his deadline for
submitting a second RTS. A complainant must file an RTS “within seven calendar days
of the incident.” OP-090124 § IV(C)(3). Although the memorandum McCoy sent to Pine
directed him to respond within ten working days of receiving the memorandum, S.R. Att.
12, Doc. No. 26-12, there is no record that Plaintiff was told to expect a response within
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that time frame. The letter Plaintiff received from McCoy included no such deadline. See
S.R. Att. 11, Doc. No. 26-11. Therefore, it would not have been reasonable to expect
Plaintiff to submit an RTS regarding his prescription refill or the amended response to his
original RTS.
B. Offender Request
It would also not be appropriate for Plaintiff to file an Offender Request about the
amended response. Such a form is used only for “issues that do not fall into the categories
for filing a ‘Request to Staff.’” OP-090124 § IV(D). The failure to provide an amended
response fits within an RTS issue—namely, a complaint against staff. See OP-090124
§ (IV)(A)(3). Therefore, Plaintiff would not have been able to submit an Offender
Request for Pine’s failure to provide an amended response.
C. Grievance & Grievance Appeal
It would also be unreasonable to expect Plaintiff to file a grievance to address this
issue. “Only one issue or incident is allowed per grievance.” See OP-090124 § V(A)(4).
If the “incident” is the need for a prescription refill, Plaintiff would again risk being put
on a grievance restriction for filing multiple grievances regarding the same issue. See OP090124 § IX(A)(1)(c). If, instead, the Court assumes that the “incident” is Pine’s failure
to provide Plaintiff with an amended response, this would require Plaintiff to initially file
an RTS about this issue. See OP-090124 § IV (“The informal resolution process precedes
submitting a grievance.”). He would then face the deadline problem explained above.
Plaintiff would be in the same position if he attempted to file a grievance appeal. See OP090124 § VII(A) (noting that a complainant can file a grievance appeal only when
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“appeal[ing] the reviewing authority’s response to the grievance”). Consequently,
Plaintiff would have been unable, consistent with the OGP, to file a grievance or a
grievance appeal regarding his prescription refill or Pine’s failure to provide him with an
amended response.
Conclusion
Plaintiff is excused from exhausting his administrative remedies. This particular
scenario is outside the scope of the explicit provisions of the OGP, and there is no record
of anyone instructing Plaintiff of the next step to take if he does not receive an amended
response. Requiring Plaintiff to act in this situation would place him at risk of being put
on a grievance restriction if prison officials determined that the action he took was not
permitted by the OGP. See OP-090124 § IX(A)(1)(f) (listing one type of abuse of process
as “writing letters instead of utilizing the grievance process and failing to bring
complaints by formal grievance”).
Accordingly, the Court excuses Plaintiff from exhausting his administrative
remedies, and thus declines to adopt the Report and Recommendation of the Magistrate
Judge. Because the Report and Recommendation did not address Defendants’ alternative
arguments in support of summary judgment, the Motion for Summary Judgment is
remanded for further consideration consistent with this Order and this case is re-referred
to Magistrate Judge Goodwin accordingly.
IT IS SO ORDERED this 30th day of September, 2014.

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