Hall v. Burnham

Filing 28

MEMORANDUM DECISION and ORDER GRANTING DEFENDANTS SUMMARY JUDGMENT MOTION BASED ON FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES: Denied as moot 16 Motion to Appoint Counsel; Granting 21 Motion for Summary Judgment ; Denied as Moot 26 Motion to proceed to trial. The Clerk of the Court is directed to close this case forthwith. Signed by Judge Ted Stewart on 2/5/2014. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
JOSEPH HALL,

v.

MEMORANDUM DECISION AND
ORDER GRANTING DEFENDANTS’
SUMMARY JUDGMENT MOTION
BASED ON FAILURE TO EXHAUST
ADMINISTRATIVE REMEDIES

DR. BRUCE BURNHAM, M.D. et al.,

Case No. 2:12-CV-794 TS

Plaintiff,

Defendants.

Judge Ted Stewart

Plaintiff, Joseph Hall, an inmate at Utah State Prison (USP), filed this pro se civil rights
suit under 42 U.S.C. § 1983 (2013). Before the Court is Defendants’ Motion for Summary
Judgment for Failure to Exhaust Administrative Remedies.
I. Material Facts Deemed True for Purposes of this Order Only
1.

Plaintiff is an inmate at USP. At all times relevant here, Plaintiff was jailed at

Central Utah Correctional Facility (CUCF).
2.

Around November 2010, Plaintiff had a severe seizure disorder and a tumor

removed from his brain. (See Am. Compl., ¶ 7.)1
3.

Around January 13, 2012, Plaintiff was seen by Defendant Burnham who

evaluated Plaintiff and discontinued Plaintiff’s seizure medication. (See Am. Compl., ¶ 8.)
4.

Defendant Burnham also delayed care when Plaintiff requested it and provided no

treatment for Plaintiff’s rash. (See Am. Compl., ¶ 13.)
1

Facts taken from Plaintiff’s Amended Complaint are deemed true when presented in a motion for summary
judgment. See Fed.R.Civ.P. 56(c).

1

5.

Defendant Hanson scheduled Plaintiff to see Defendant Burnham even though she

knew Plaintiff would not receive adequate care from Burnham. (See Am. Compl., ¶ 12.)
6.

Although Plaintiff filed grievances about poor medical treatment, he never

completed the grievance process by filing level-three grievances. (See Am. Compl., ¶ 18; Lund
Decl., ¶¶ 17-26; Garner Decl., ¶¶ 17-19.)
7.

Plaintiff’s grievance privileges were suspended from August 1, 2012, to February

1, 2013. During this period, he was unable to file any grievances. (See Garner Decl., ¶ 19.)
8.

After the grievance suspension, Plaintiff did not follow up on any of his past-filed

grievances to level three. (See Plaintiff’s Motion to Dismiss Defendants’ Summary Judgment
Motion.)
9.

The USP grievance process includes three levels of administrative review. By

policy, the grieving inmate must go through each level to exhaust the process and before seeking
judicial relief. State of Utah Dep’t of Corrs. Institutional Operations Division Manual,
FDr02/03.02; (see Garner Decl., ¶ 6).
10.

After level three, there is no further administrative appeal from the Hearing-

Office level. The level-three decision is final. FDr02/03.05 B; (see Garner Decl., ¶ 14).
II. Legal Standards
A. Summary-Judgment Standard
Summary judgment is appropriate when “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). 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
2

be met by identifying parts of the record showing 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. A nonmovant “that would
bear the burden of persuasion at trial” is required 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 v. Bock, 549 U.S. 199
(2007). 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
3

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 question.
B. 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.” 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
(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 (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, 549 U.S. at 212.
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).
4

III. Defendants' Motion for Summary Judgment
Plaintiff's Amended Complaint asserts claims for damages relating to Defendants’ denial
of medical care in violation of Plaintiff’s Eighth Amendment right to be free from cruel and
unusual punishment and his Fifth and Fourteenth Amendment right to be treated equally and
fairly. (Am. Compl., ¶ 15.) However, before he may pursue these claims, he must show that he
has exhausted his administrative remedies. See 42 U.S.C. § 1997e(a). In response to
Defendants’ declarations and documentation supporting their summary judgment motion,
Plaintiff submitted nothing beyond the pleadings to meet his burden.
In keeping with the Supreme Court’s decision in Jones v. Bock, the Tenth Circuit no
longer considers exhaustion of administrative remedies a pleading requirement. Thus, nothing
prevents an inmate from filing a suit with unexhausted claims. However, once exhaustion is
raised as an affirmative defense, the inmate will be required to present evidence showing that all
available administrative grievance remedies were fully exhausted. This can be accomplished
either by showing compliance with all the necessary grievance procedures, or by showing that
efforts at exhaustion were thwarted by prison officials, effectively making them unavailable.
Because Plaintiff has failed to argue and submit evidence that he appealed his grievances
through level three of the USP grievance process, including waiting until the suspension of his
grievance privileges was lifted, he has failed to show that he exhausted his administrative
remedies.

5

ORDER
It is therefore
ORDERED that Defendants’ Motion for Summary Judgment for Failure to Exhaust
Administrative Remedies (Docket No. 21) is GRANTED. It is further
ORDERED that Plaintiff’s Motion to Appoint Counsel and Motion to Proceed to Trial
(Docket Nos. 16 and 26) are DENIED AS MOOT.
The Clerk of the Court is directed to close this case forthwith.
DATED this 5th day of February, 2014.
BY THE COURT:

____________________________________
CHIEF JUDGE TED STEWART
United States District Court

6