Morris v. Fallin et al

Filing 154

ORDER granting 96 Motion for Summary Judgment; adopting Report and Recommendations re 138 Report and Recommendation.. Signed by Honorable Timothy D. DeGiusti on 9/24/2018. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
DARRELL MORRIS,
Plaintiff,
v.
GOVERNOR MARY FALLIN, et al.,
Defendants.

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Case No. CIV-16-1297-D

ORDER
This matter comes before the Court for review of the Report and Recommendation
[Doc. No. 138] issued by United States Magistrate Judge Shon T. Erwin on April 26, 2018,
pursuant to 28 U.S.C. § 636(b)(1)(B)-(C). 1 Judge Erwin recommends that Defendants
Bethany Wagener and Larry Bowler’s Motion for Summary Judgment [Doc. No. 96] be
granted. Plaintiff has filed a timely written objection [Doc. No. 139]. The Court must
make a de novo determination of portions of the Report to which a specific objection is
made, and may accept, modify, or reject the recommended decision. See 28 U.S.C.
§ 636(b)(1); Fed. R. Civ. P. 72(b)(3).
Plaintiff, a prison inmate appearing pro se and in forma pauperis, brings this action
under 42 U.S.C. § 1983 seeking damages for alleged violations of his constitutional rights
during his confinement by the Oklahoma Department of Corrections (“ODOC”). The

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Judge Erwin has issued several reports in this case stating his findings and conclusions
on particular issues. The report currently under review is the second of three reports that separately
address three dispositive motions filed by the remaining defendants. The Court previously adopted
the first report by Order of August 31, 2018 [Doc. No. 153], and will review the third report in a
separate order.

moving defendants are a doctor and a physician’s assistant who were employed at the Dick
Conner Correctional Center (“DCCC”) when Plaintiff was confined there in 2015. 2
Plaintiff claims Dr. Bowler and Ms. Wagener acted with deliberate indifference to his
serious medical needs. See Am. Compl. [Doc. No. 29] at 10-12. Dr. Bowler allegedly
denied Plaintiff a wheelchair when he arrived at DCCC, “discontinued medications,
confiscated medical devices . . . [and denied] proper/timely medical treatment even though
the plaintiff’s medical problems/health issues were extensively well documented.” Id.
at 12, ¶ 15. Plaintiff makes these same allegations against Ms. Wagener, and alleges she
“terminated sick call visits without addressing all plaintiff’s problems.” Id. ¶ 16.
Upon consideration of the summary judgment motion jointly filed by Defendants
Wagener and Bowler, and the voluminous case record, Judge Erwin finds that Plaintiff
failed to exhaust administrative remedies for his claims, as required by 42 U.S.C.
§ 1997e(a), to the extent they are based on denial of a wheelchair and discontinuation of
previously prescribed medication. Judge Erwin therefore recommends that summary
judgment be granted to Defendants Wagener and Bowler on these claims as unexhausted.
As to Plaintiff’s claims that he was denied medical devices at DCCC that were provided at
a prior facility (“foam wedge” and “eggcrate mattress”) and that Ms. Wagener prematurely
terminated a medical appointment, Judge Erwin finds that Defendants are entitled to

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Plaintiff was later transferred to a private prison, Cimarron Correctional Facility; he is
now confined at the John H. Lilley Correctional Center.
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qualified immunity because Plaintiff has failed to present sufficient factual allegations to
show that a constitutional violation occurred.
Plaintiff has presented a lengthy objection in narrative fashion that makes it difficult
to determine whether he objects to the factual and procedural history set forth by Judge
Erwin in his Report. However, upon careful examination of the facts stated by Plaintiff in
light of the case record, the Court finds that he does not dispute the critical facts regarding
administrative exhaustion of his wheelchair and medication claims against Defendants
Wagener and Bowler. It is undisputed that Plaintiff did not complete the administrative
process for these claims; his appeals from denials of the relevant grievances were rejected
for procedural reasons, and after repeated rejections, his right to proceed was deemed
“waived/forfeited” pursuant ODOC’s grievance procedure, OP-090124, § VII(B)(1)(e).
See Special Report, Ex. 16 [Doc. No. 83-16] at 15, Ex. 12 [Doc. No. 83-12] at 14 (ECF
page numbering).
Liberally construing Plaintiff’s Objection, the issues presented are similar to the
ones raised in his summary judgment response regarding administrative exhaustion of his
wheelchair and medication claims:

1) whether the administrative review authority’s

rejections were based on false reasons; 2) whether a grievance restriction imposed in April
2015 (which contributed to subsequent rejections of grievance appeals) was arbitrary and
unfounded so compliance should be excused; and 3) whether ODOC administrative
practices, such as a failure to date-stamp grievances on the date they are submitted and a
general failure to follow the grievance policy (OP-090124), prevents inmates from

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completing the administrative process. If so, then Plaintiff contends an administrative
remedy was effectively “unavailable” within the meaning of Little v. Jones, 607 F.3d 1245,
1250 (10th Cir. 2010). See Obj. [Doc. No. 139] at 6, 11. 3
Upon de novo review of the issues raised by Plaintiff’s Objection, the Court fully
concurs in Judge Erwin’s findings and recommendation that Defendants Wagener and
Bowler are entitled to summary judgment on the ground of non-exhaustion. Although
Judge Erwin’s Report contains some minor or typographical errors, 4 the Court fully
concurs in Judge Erwin’s findings that Plaintiff has not demonstrated a genuine dispute of
fact relevant to the issue of whether the conduct of prison officials rendered the
administrative review process unavailable under Little.
The specific instances in which Plaintiff alleges that the administrative review
authority gave false reasons for rejecting his grievance appeals appear to be ones in which

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Plaintiff also appears to raise an additional issue of whether he was prevented from
meeting his burden to show administrative exhaustion should be excused, by a local court rule that
imposed a page limit on summary judgment briefs. See LCvR7.1(e); see also Tuckel v. Grover,
660 F.3d 1249, 1254 (10th Cir. 2011) (inmate bears burden to show remedies were unavailable).
The Court rejects any such assertion. Judge Erwin granted Plaintiff’s request to file an over-sized
brief, and allowed Plaintiff to supplement the record with additional documents alleged to be
material and necessary to his case. See Order of March 1, 2018 [Doc. No. 115]; Suppl. Docs.
[Doc. Nos. 120 to 123].
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Judge Erwin incorrectly states that Plaintiff’s first appeal from the denial of Grievance
15-13 regarding a wheelchair was submitted April 8, 2015, instead of April 14, 2015 (see R&R
at 7; Special Report, Ex. 16 [Doc. No. 83-16] at 8); that Plaintiff submitted a staff request directly
to ODOC’s medical administrator on March 19, 2015, instead of May 19, 2015 (see R&R at 8;
Special Report, Ex. 23 [Doc. No. 83-23] at 2); that Plaintiff’s first appeal from the denial of
Grievance 15-03 regarding medication was submitted February 20, 2015, instead of February 23,
2015 (see R&R at 9; Special Report, Ex. 12 [Doc. No. 83-12] at 10); and that Genese McCoy,
rather than Buddy Honaker, rejected the second appeal regarding Grievance 15-21 and informed
Plaintiff further review was waived (see R&R at 10; Special Report, Ex. 22 [Doc. No. 83-22]
at 13).
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the procedural defect involved noncompliance with Plaintiff’s grievance restriction. The
volume of the grievance record and Judge Erwin’s summary of the procedural history,
together with Plaintiff’s own statement of facts, show that he inundated prison officials
with a steady flow of staff requests, grievances, and grievance appeals. Under these
circumstances, Plaintiff cannot effectively claim that the grievance restriction imposed on
him was unfounded.
The additional procedures required of a frequent-filer inmate who is subject to
ODOC’s grievance restriction policy are necessarily more burdensome, but they do not
prevent administrative exhaustion. The Tenth Circuit has previously held that an inmate
subject to the policy can properly be required to comply with it, and an inmate who is
notified of a deficiency and fails to correct it cannot be found to have exhausted the
grievance process. Under these circumstances, the inmate “‘may not successfully argue
that he had exhausted his administrative remedies by, in essence, failing to employ them.’”
See Thomas v. Parker, 609 F.3d 1114, 1118 (10th Cir. 2010) (quoting Jernigan v. Stuchell,
304 F.3d 1030, 1033 (10th Cir. 2002)). Plaintiff has not presented facts that would show
he was prevented from exhausting his claims regarding a wheelchair and discontinuation
of his medication for neuropathy and pain.
Regarding the denial of medical devices and Ms. Wagener’s premature termination
of medical appointments, Plaintiff objects to Judge Erwin’s findings that no constitutional
violation is sufficiently stated. The essence of his complaint about his eggcrate mattress
and foam wedge are that he had “permanent” medical orders for these devices, and “[h]e

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should never have been transferred to a facility that could not meet his medical needs” for
such devices. See Obj. at 12. Neither Dr. Bowler nor Ms. Wagener were responsible for
Plaintiff’s prison assignment. Upon de novo consideration, the Court fully concurs in
Judge Erwin’s findings and conclusion that Plaintiff has failed to set forth sufficient facts
to show that Dr. Bowler or Ms. Wagener engaged in deliberate indifference to a serious
medical need with respect to the exhausted issues.
For these reasons, the Court finds that Defendants Wagener and Bowler are entitled
to summary judgment on Plaintiff’s § 1983 claims against them. The undisputed facts
show that Plaintiff failed to complete the administrative process for exhaustion of his
claims regarding denial of a wheelchair and discontinuation of a prescription medication,
and Plaintiff’s factual allegations regarding the denial of medical devices and premature
termination of a medical appointment fail to show that unconstitutional conduct occurred.
IT IS THEREFORE ORDERED that the Report and Recommendation [Doc.
No. 138] is ADOPTED. Defendants Bethany Wagener and Larry Bowler’s Motion for
Summary Judgment [Doc. No. 96] is GRANTED, as set forth herein.
IT IS SO ORDERED this 24th day of September, 2018.

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