Ramirez v. Guterrez et al

Filing 80

ORDER ADOPTING IN PART MEMORANDUM AND RECOMMENDATIONS AND GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; re: granting 66 Sealed Event, adopting in part 74 Memorandum and Recommendations (Signed by Judge Nelva Gonzales Ramos) Parties notified.(lcayce, 2)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
JUAN RAMIREZ, JR.,
Plaintiff,
VS.
ERNEST H GUTERREZ, JR, et al,
Defendants.

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§ CIVIL ACTION NO. 2:11-CV-408
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ORDER ADOPTING IN PART THE MAGISTRATE JUDGE’S
MEMORANDUM AND RECOMMENDATION AND GRANTING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Pending before the Court is Defendant Dr. Turner’s and Defendant Montooth’s
(hereinafter, Defendants) Motion for Summary Judgment. (D.E. 66). On November 8,
2013, United States Magistrate Judge B. Janice Ellington submitted a Memorandum and
Recommendation recommending that Defendants be granted summary judgment. (D.E.
74). Plaintiff timely filed his objections on December 16, 2013. (D.E. 78).
In her Memorandum and Recommendation, the Magistrate Judge found: (1)
Plaintiff’s claim was barred by the Prisoner Litigation Reform Act (PLRA)1 for failure to
exhaust; (2) Plaintiff failed to state a constitutional violation; and (3) Defendants were
entitled to summary judgment on Plaintiff’s state law claims of medical malpractice
because Plaintiff failed to designate an expert. Plaintiff’s objections focus primarily on
the factual findings relevant to the Magistrate Judge’s conclusions concerning the

1

42 U.S.C. § 1997e(a).

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exhaustion requirement and the statement of a constitutional claim. The objections are
addressed below.
With regard to the exhaustion requirement, Plaintiff raises two objections. First,
Plaintiff objects to what he perceives as an incomplete record with regard to his
grievances. He complains that Defendants “perpetuat[ed] a gross misrepresentation” by
submitting a partial record that did not include his Step 1 grievance of September 2,
2011, # 2012001787, and the accompanying Step 2 grievance of September 13, 2011. It
is clear that the Magistrate Judge considered the content of the grievances in question in
reaching her decision (D.E. 74, p. 5), and even recited the factual content of those
grievances in her discussion (D.E. 74, p. 7).

Moreover, the Magistrate Judge

acknowledged that Plaintiff offered evidence of the grievances in question in rebuttal to
Defendants claim that none were filed. D.E. 74, p. 7. Because the Magistrate Judge
appropriately considered the relevant grievances, Plaintiff’s objection is OVERRULED.
Second, Plaintiff objects to the Magistrate Judge’s finding that his relevant
grievances were not timely filed and the resulting conclusion that his claims are
unexhausted and procedurally barred. Plaintiff argues that “because his injury from the
May 24 procedure was ‘ongoing,’ TDCJ’s determination that his grievance was untimely
filed was made in error.” D.E. 78, p. 5.
According to TDCJ policy, an inmate has “15 days from the date of the alleged
incident or occurrence of the issue presented in which to complete the Step 1 grievance.”

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See TDCJ-CID Offender Orientation Handbook, at 52-53 (Nov. 2004).2 “[A] claim
generally accrues the moment the plaintiff becomes aware that he has suffered an injury
or has sufficient information to know that he has been injured and that there is a
connection between his injury and the defendant's actions.” Starks v. Hollier, 295 Fed.
App’x. 664, 665 (5th Cir. 2008) (internal quotation marks and citation omitted). The fact
that a condition continues does not excuse the failure to file a grievance earlier. Johnson
v. Johnson, 385 F.3d 503, 519 (5th Cir. 2004).
Plaintiff’s allegations indicate that he suffered from a discreet medical condition—
decay in teeth #30 and #31 requiring restoration. Plaintiff alleges that on May 24, 2010,
Defendants not only failed to treat this condition but also worsened the injury by drilling
the wrong tooth, causing Plaintiff significant pain. D.E. 1, p. 8.
Plaintiff’s argument that TDCJ erroneously determined that his Step 1 grievance
was untimely because “his injury from the May 24 [2010] procedure was ‘ongoing’” does
not excuse his failure to file his Step 1 grievance until September 2, 2011. The “alleged
incident” or “occurrence of the issue” which constitutes the gravamen of Plaintiff’s
complaint is the drilling and filling of tooth #2 instead of teeth #30 and #31. In other
words, the procedure that occurred on May 24, 2010, and the Defendants’ failure to
correct the mistake until October 4, 2010, is the basis of Plaintiff’s lawsuit.
In Starks, a federal prisoner's claim, arising from his alleged exposure to
tuberculosis accrued when he was first informed of his exposure. Similarly, in this case,
Plaintiff became aware that the wrong tooth was treated on May 24, 2010. D.E. 73-4,
2

Available at http://www.tdcj.state.tx.us/publications/pubs_cid_offender_orientation_handbook.html.

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p. 3 (“After the procedure . . . Dr. Turner consulted his notes and realized that he had
drilled and filled the wrong tooth. He said he did not have time to drill the correct teeth,
but that he would reschedule me for restorative treatment for those teeth.”). At this time,
Plaintiff was both aware that he had suffered an injury and knew that there was a
connection between his injury and Defendant's actions. As a result, the grievable issue
accrued on May 24, 2010, when Plaintiff became aware that he suffered an injury at the
hands of Defendants.
Plaintiff’s claim that the pain caused by the procedure on tooth #2 constitutes an
ongoing condition and thus the grievable period was not triggered in May 2010 fails
because the Fifth Circuit has made clear that the fact that a condition continues does not
excuse the failure to file a grievance earlier. Johnson, 385 F.3d at 519. Moreover, the
pain Plaintiff allegedly suffered did not hinder him from filing a grievance.3
Plaintiff cannot—more than a year after his injury—attempt to characterize pain
that he has been aware of since as early as May 2010 as an “ongoing condition” in order
to relate it back to the discreet medical event that triggered his awareness of the injury
and thus, his grievable period. Plaintiff had 15 days from the “occurrence of the issue” to
file a grievance. Because he did not do so, his claim is unexhausted and procedurally
barred. Accordingly, Plaintiff’s objection is OVERRULED.
The PLRA requires that a prisoner exhaust all available administrative remedies
for a particular claim before bringing federal suit. 42 U.S.C. § 1997e(a). Exhaustion is
3

See Days v. Johnson, 322 F.3d 863, 868 (5th Cir. 2003) (holding that an inmate’s claim was properly exhausted
despite filing an untimely grievance because the hand injury he complained of hindered him from filing, thus
rendering the prison’s grievance process unavailable to him for purposes of his § 1983 claim until the injury healed).

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not left to the discretion of the district court, but is mandatory. Woodford v. Ngo, 548
U.S. 81, 84 (2006); Gonzalez v. Seal, 702 F.3d 785, 788 (5th Cir. 2012) (per curiam).
“Congress unambiguously expressed its intent that exhaustion be generally imposed as a
threshold requirement in prisoner cases.” Wendell v. Asher, 162 F.3d 887, 890 (5th Cir.
1998). Because the Court finds that Plaintiff’s claim is unexhausted and procedurally
barred, any other consideration of Plaintiff’s § 1983 claim falls outside of this Court’s
jurisdiction. Consequently, the Court does not find it necessary to address the portion of
the Memorandum and Recommendation regarding the failure of Plaintiff to state a
constitutional violation.
Plaintiff did not raise specific objections to the Magistrate Judge’s findings
concerning his state law medical malpractice claim. Therefore, this Court need only
satisfy itself that there is no plain error on the face of the record with regard to Plaintiff’s
state law claims. Guillory v. PPG Industries, Inc., 434 F.3d 303, 308 (5th Cir. 2005)
(citations omitted). The Magistrate Judge found that Plaintiff could not establish his
medical malpractice claim because he failed to designate an expert to testify regarding
such claim. Finding no plain error, this Court ADOPTS the findings of fact and
conclusions of law expressed in the Memorandum and Recommendation with regard to
Plaintiff’s state law medical malpractice claim.
CONCLUSION
Having reviewed the findings of fact, conclusions of law, and recommendations
set forth in the Magistrate Judge’s Memorandum and Recommendation, as well as
Plaintiff’s objections, and all other relevant documents in the record, and having made a
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de novo disposition of the portions of the Magistrate Judge’s Memorandum and
Recommendation

to

which

objections

were

specifically

directed,

the

Court

OVERRULES Plaintiff’s objections and ADOPTS as its own the findings and
conclusions of the Magistrate Judge with respect to the exhaustion requirement and the
state law medical malpractice claim. Accordingly, Defendants’ Motion for Summary
Judgment (D.E. 66) is GRANTED.
ORDERED this 27th day of January, 2014.

___________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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