Brooks v. LNU et al
MEMORANDUM DECISION granting 37 Motion for Summary Judgment. Signed by Judge Dee Benson on 2/23/12. (jlw)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
VEAR LEROY BROOKS,
Case No. 2:09-CV-163 DB
AMBER WHITEAKER et al.,
District Judge Dee Benson
Plaintiff, Vear Leroy Brooks, an inmate at the Utah State Prison, filed this pro se civil
rights suit under 42 U.S.C. § 1983. See 42 U.S.C.A. § 1983 (West 2011). Plaintiff was allowed
to proceed in forma pauperis under 28 U.S.C. § 1915. See 28 U.S.C.A. § 1915 (2011). On May
5, 2011, Defendants filed a Martinez report (Doc. 36) addressing Plaintiff’s claims and his
efforts to resolve them through the prison grievance process. Defendants now move for
summary judgment on the grounds that Plaintiff failed to fully exhaust all available
administrative remedies before filing suit.
I. Legal Standards
a. Exhaustion Requirement
The Prison Litigation Reform Act (PLRA) requires inmates to exhaust all available
administrative remedies before seeking redress in the courts. Specifically, 42 U.S.C. § 1997e(a)
provides that “[n]o 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.” See 42
U.S.C.A. § 1997e(a) (West 2009). The Supreme Court has held that the PLRA’s exhaustion
requirement “applies to all inmate suits about prison life, whether they involve general
circumstances or particular episodes, and whether they allege excessive force or some other
wrong.” Porter v. Nussle, 534 U.S. 516, 532, 122 S. Ct. 983, 992 (2002). Moreover, the
Supreme Court has refused to “read futility or other exceptions into [the PLRA’s] statutory
exhaustion requirement.” Booth v. Churner, 532 U.S. 731, 741, n. 6, 121 S. Ct. 1819, 1825
(2001). As explained by the Tenth Circuit, “[t]he statutory exhaustion requirement of § 1997e(a)
is mandatory, and the district court [is] not authorized to dispense with it.” Beaudry v. Corr.
Corp. of Am., 331 F.3d 1164, 1167 n. 5 (10th Cir. 2003). Failure to exhaust is an affirmative
defense that the defendants have the burden of pleading and proving. See Jones v. Bock, 549
U.S. 199, 212, 127 S. Ct. 910, 919 (2007).
Because exhaustion is a prerequisite to suit, all available administrative remedies must be
exhausted before filing a complaint in federal court. See Porter, 534 U.S. at 524 (citing Booth,
532 U.S. at 741). However, it is well recognized that “a remedy that prison officials prevent a
prisoner from utilizing is not an ‘available’ remedy under § 1997e(a).” Miller v. Norris, 247
F.3d 736, 740 (8th Cir. 2001); see also Brown v. Croak, 312 F.3d 109, 112 (3d Cir. 2002). Thus,
“inmates cannot be held to the exhaustion requirement of the PLRA when prison officials have
prevented them from exhausting their administrative remedies.” Lyon v. Vande Krol, 305 F.3d
806, 808 (8th Cir. 2002).
b. Summary Judgment Standard
Summary judgment is appropriate when “there is no genuine issue as to any material fact
and . . . the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). The
moving party bears the initial burden of showing “that there is an absence of evidence to support
the non-moving party’s case.” Cellotex v. Catrett, 477 U.S. 317, 325 (1986). This burden may
be met merely by identifying portions of the record which show an absence of evidence to
support an essential element of the opposing party’s case. Johnson v. City of Bountiful, 996 F.
Supp 1100, 1102 (D. Utah 1998)
Once the moving party satisfies its initial burden “the burden then shifts to the
nonmoving party to make a showing sufficient to establish that there is a genuine issue of
material fact regarding the existence of [the disputed] element.” Id. Rule 56(e) requires a
nonmovant “that would bear the burden of persuasion at trial” to “go beyond the pleadings and
‘set forth specific facts’ that would be admissible in evidence in the event of a trial from which a
rational trier of fact could find for the nonmovant.” Adler v. Wal-Mart Stores, 144 F.3d 664, 671
(10th Cir. 1998). The specific facts put forth by the nonmovant “must be identified by reference
to an affidavit, a deposition transcript or a specific exhibit incorporated therein.” Thomas v.
Wichita Coca-Cola Bottling, 968 F.2d 1022, 1024 (10th Cir. 1992). Mere allegations and
references to the pleadings will not suffice. However, the Court must “examine the factual
record and reasonable inferences therefrom in the light most favorable to the party opposing the
motion.” Lopez v. LeMaster, 172 F.3d 756, 759 (10th Cir. 1999).
The Tenth Circuit has recognized that, given the fact sensitive nature of exhaustion
determinations, “a motion for summary judgment limited to the narrow issue of exhaustion and
the prisoner’s efforts to exhaust is appropriate.” Steele v. Fed. Bureau of Prisons, 355 F.3d
1204, 1211 (10th Cir. 2003), abrogated on other grounds by Jones, 549 U.S. 199. When
deciding such a limited motion for summary judgment the court applies the same procedures
used for other summary judgment determinations. Thus, the moving party bears the initial
burden of showing that there is an absence of evidence to support the plaintiff’s contention that
he exhausted all available administrative remedies. Once the moving party has made such a
showing, the burden then shifts to the nonmoving party to produce admissible evidence showing
that genuine issues of material fact exist precluding summary judgment on the exhaustion
Plaintiff is an inmate at USP, incarcerated since February 27, 2007.
Plaintiff has been housed in the Wasatch and Olympus facilities, but since his
incarceration, has spent approximately 63 days hospitalized at the University of
Utah Medical Center or at the USP infirmary.
In September, 2007, Plaintiff underwent heart by-pass surgery at the University of
Utah Medical Center, and after eleven days was returned to USP where he was
The facts presented here are drawn directly from Defendants’ Memorandum
Supporting Motion for Summary Judgment and are not disputed.
housed in the Wasatch Infirmary facility.
Plaintiff alleges that he was later housed with inmates in a mental health unit and
that one such inmate punched Plaintiff in the chest at the location of his sutures.
(Compl. ¶ B.1.)
Utah State Prison has implemented a Grievance Policy and Procedures for
inmates to raise concerns and pursue remedies relating to the conditions of
confinement and their incarceration. (Declaration of Billie Casper at ¶ 4, attached
to the Martinez report as Exhibit A, (Doc. 36-1).)
Under the USP grievance system, inmates must file a written grievance within
seven working days from the time the inmate knows or should have known about
a grievable incident. (See FDr02/03.03, attached to the Martinez report as Exhibit
C, (Doc. 36-3).)
The USP grievance system involves a three level process. Inmates file their
grievance in writing as a Level One complaint. The grievance is reviewed by a
grievance review officer who either grants the grievance or denies it.
When a Level One grievance is denied the inmate is notified of his right to fill out
the Level Two form and appeal the denial of Level One. The inmate has five
working days to appeal to Level Two where the grievance is reviewed by the
Warden or the Warden-Designee. (FDr02/03.04; Casper Decl. at ¶ 12.)
If the grievance is again denied at the Level Two stage, the inmate is informed of
his right to appeal to Level Three. (FDr02/03.05; Casper Decl. at ¶ 13.)
The inmate has five days to file written notice of his appeal to the Level Three
grievance officer. (FDr02/03.05 B; Casper Decl. at ¶ 13.)
If the Level Three grievance is again denied, the inmate is informed of the
decision, and of his right to seek judicial remedies. (FDr02/03.05 B; Casper Decl.
Under USP grievance procedures, an inmate has not exhausted his administrative
grievance remedies until he has appealed the denial of his grievance through
Level Three and has received notice of the denial of the Level Three appeal.
Plaintiff’s Complaint alleges that in March 2007 he visited USP medical
personnel about the separation of the sutures in his chest, and that Defendants
declined to refer him to Dr. Roberts. (Compl. ¶ B.1.)
Plaintiff filed a Level One grievance relating to that issue on May 8, 2008, over a
year after the alleged denial of medical attention, the incident giving rise to the
claims he raises in his Complaint. (See Level One Grievance Form, attached as
Exhibit D to Martinez report (Doc. 36-4).)
USP Registered Nurse, Eric DiFrancesco, reviewed Plaintiff’s Level One
grievance and denied it because, according to the dates listed by Plaintiff, the
Level One grievance was filed over a year after the denial of medical attention.
(See Declaration of Eric DiFrancesco, attached as Exhibit B to Martinez report
Plaintiff did not appeal the denial of his Level One grievance; he did not advance
the grievance to Level Two, which prohibited him for advancing the grievance to
Level Three. (DiFranceso Decl. ¶¶ 8-9).
III. Defendants’ Motion for Summary Judgment
Defendants have presented ample evidence to support the conclusion that Plaintiff failed
to exhaust his claims through the USP grievance process before filing this suit. Thus,
Defendants have successfully shifted to Plaintiff the burden of producing admissible evidence
showing a genuine issue of material fact as to whether he fully exhausted his claims.
Plaintiff has not met his burden. Although Plaintiff did not file a formal opposition
memorandum to Defendants’ summary judgment motion, Plaintiff did submit a one-paragraph
response captioned “Motion for Summary Disposition” stating: “I did file one grievance which
was denied but the fact is no grievance would have or could have all allievated [sic] the pain and
suffering and permanent scarring to my chest. Thearfor [sic], I ask this court to award me the
full $1,500,000 damages to me in this matter.” (Doc. 39) Thus, Plaintiff effectively concedes
that he did not complete the exhaustion process. Moreover, Plaintiff’s bald assertion that
exhaustion would have been futile because it could not have afforded him relief is unavailing.
Thus, the Court concludes that Plaintiff has not shown a genuine issue of material fact on the
exhaustion issue and Defendants are entitled to summary judgment under the PLRA.
Based on the foregoing, IT IS HEREBY ORDERED that Defendants’ Motion for
Summary Judgment (Doc. 37) is GRANTED, and this case is CLOSED.
Dated this 23rd day of February, 2012.
BY THE COURT:
United States District Judge
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