Bawden v. Richins et al

Filing 30

MEMORANDUM DECISION and Order- granting 20 Motion to Dismiss and Memorandum in Support for Failure to Exhaust Administrative Remedies. Plaintiffs Complaint, 6 , is DISMISSED WITH PREJUDICE for failure to exhaust administrative remedies. See Order for additional details. Signed by Judge Dee Benson on 2/12/14. (jmr)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

MEMORANDUM DECISION AND
ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS

HEIDI BAWDEN,
Plaintiff,

vs.
Case No. 2:12cv01178 DB
TERESA RICHINS et al.,
District Judge Dee Benson

Defendants.

Before the Court is Defendants’ Motion to Dismiss and/or for Summary Judgment for
Failure to Exhaust Administrative Remedies. (Doc. 20.) Defendants Teresa Richins, Jason
McClellan, Richard Fisher and Melissa Moore (Defendants) move to dismiss with prejudice the
Plaintiff’s § 1983 claims for (1) deliberate indifference to her serious medical needs, violating
the Eighth Amendment; and (2) unspecified prison officials’ refusal to file a grievance after
Plaintiff returned from the hospital, violating her procedural due process rights protected by the
Fifth and Fourteenth Amendments. In support of their Motion to Dismiss, Defendants argue that
Plaintiff has not exhausted her administrative remedies as required by the Prison Litigation
Reform Act and that her due-process claim does not state a claim for which relief may be
granted. For the reasons stated below, the Court grants Defendants’ motion.
Plaintiff was at relevant times an inmate at the Utah State Prison in Draper. She alleges
that she injured herself in a fall from a stool on February 5, 2011, but that she was denied
medical treatment on February 6, 7, and 8. (See generally Pl.’s Compl. ¶¶ 10–16.) She was
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treated in the infirmary on February 8, was sent to the University of Utah Medical center for hip
surgery on February 14, and returned to prison. (Id. ¶¶ 16–20.) Plaintiff alleges that she was
“denied access to the administrative remedies due to not filing a grievance within 7 days allowed
….” (Id. ¶ 21.) However, she concedes that she never attempted to file a grievance during those
7 days, even though grievance forms were available to her in her housing unit and in the
infirmary. (Decl. of Billie Casper, ¶¶ 7, 15, attached as Exhibit 1 to Defs.’ Mem. in Support of
Mot. to Dismiss.)
The Utah State Prison has a 3-level grievance process, the first level of which is initiated
by an inmate filing a grievance within 7 working days of an incident, or within 7 working days
of the time the inmate knew or should have known about a grievable incident. (Id. ¶¶ 6, 7; Utah
Dep’t of Corrections Grievance Policy FDr02/03.03, attached as Exhibit A to Casper Decl.)
Failure to exhaust all 3 levels of review precludes the inmate from seeking judicial relief.
(Casper Decl. ¶ 6; Grievance Policy FDr02/03.02.)
LEGAL STANDARD
Defendants’ motion is filed under Federal Rule of Civil Procedure 12(b)(6). 1 In
reviewing a 12(b)(6) motion to dismiss, the Court assumes the truth of well-pleaded facts and
draws reasonable inferences in a light most favorable to the plaintiff. E.g., Leverington v. City of
Colo. Springs, 643 F.3d 719, 723 (10th Cir. 2011). But a claim survives only if “there is
plausibility in the complaint.” Hall v. Witteman, 584 F.3d 859, 863 (10th Cir. 2009) (citations
and quotations omitted). “’A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
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Defendants alternatively move for summary judgment pursuant to Federal Rule of Civil Procedure 56. But
because the facts regarding the motion are ascertainable from Plaintiffs’ Complaint, from rules and regulations
appropriate for judicial notice, and related facts, the Court determines that dismissal under Rule 12(b)(6) is
appropriate. See Hall v. Bellmon, 935 F.2d 1106, 1112–13 (10th Cir. 1991).
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misconduct alleged.’” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Threadbare
recitals of elements, facts “merely consistent” with liability, “labels and conclusions,” or
“unadorned, the-defendant-unlawfully-harmed me accusation[s]” are insufficient. Iqbal, 556
U.S. at 678 (quotation marks omitted); Leverington, 643 F.3d at 723 (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)); Gee v. Pacheco, 627 F.3d 1178, 1184–85 (10th Cir. 2010)
(citations and quotations omitted); Hall, 584 F.3d at 863.
In reviewing a motion to dismiss, the Court may rely on the facts as alleged in the
complaint, but may also rely on all documents adopted by reference in the complaint, documents
attached to the complaint, or facts that may be judicially noticed. See Fed. R. Civ. P. 10(c);
Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322–23 (2007); Hall v. Bellmon, 935
F.2d 1106, 1112 (10th Cir. 1991). Published administrative rules and regulations are appropriate
for judicial notice. See, e.g., City of Wichita. v. U.S. Gypsum Co, 72 F.3d 1491, 1496 (10th Cir.
1996) (allowing OSHA regulations to be judicially noticed as “a social fact with evidential
consequences”).
Although a prisoner’s failure to exhaust administrative remedies is an affirmative
defense, see Jones v.Bock, 549 U.S. 199, 215 (2007), the Tenth Circuit has recognized that a
district court “can dismiss prisoner complaints for failure to state a claim if it is clear from the
face of the complaint that the prisoner has not exhausted his remedies.” Aquilar-Avellaveda v.
Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007). Furthermore, because failure to exhaust may be
raised in the defendant’s pleadings, the Tenth Circuit has permitted courts to review policies and
procedures presented as part of a Martinez report in general, and the facts related to grievances in
particular, in determining the propriety of a motion to dismiss. Hall, 935 F.2d at 1112–13;
Russell v. Lincoln, No. 07-7081, 267 F. App’x 785, 787 (10th Cir. Feb. 29, 2008) (ord. & j. not
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selected for publication) (affirming dismissal of § 1983 complaint on exhaustion grounds, and
noting issue properly presented “because defendants raised the issue of exhaustion in their
responsive pleadings” and relying on “the face of the complaint and materials submitted by the
parties”).
ANALYSIS
The Prison Litigation Reform Act requires that prisoners exhaust any prison
administrative remedies before filing suit:
No action shall be brought with respect to prison conditions under
section 1979 of the Revised Statutes of the United States (42
U.S.C. 1983), 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.
42 U.S.C. § 1997e(a). This includes deliberate indifference and related claims. Porter v.
Nussle, 534 U.S. 516, 532, (2002); see, e.g., Acosta v. U.S. Marshals Serv., 445 F.3d 509, 512
(1st Cir. 2006) (“‘Prison conditions’ under [§ 1997e(a)] include individual instances of medical
mis-or non-treatment ….”); Russell, No. 07-7081, 267 F. App’x at 787 (affirming dismissal of §
1983 “medical malpractice” claim for failure to exhaust administrative remedies); Feuer v.
McCollum, No. 04-3406, 139 F. App’x 928, 931 (10th Cir. 2005) (ord. & j. not selected for
publication) (affirming dismissal of deliberate indifference § 1983 claim for failure to exhaust
administrative remedies).
From the face of Plaintiff’s complaint, the supplementary materials, and her admission, it
is clear that Plaintiff did not exhaust her administrative remedies. During the seven days
provided by the prison grievance policy, Plaintiff did not file, or even attempt to file, a grievance
while she was in the infirmary.

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She did try to file a grievance when she was returned from surgery. She alleges that she
was denied a grievance form when she returned from surgery, but the facts clearly demonstrate
that such a grievance would have been untimely even if she had been allowed to file. Plaintiffs’
allegation that a prison official refused to provide her a form, if true, would therefore not
constitute a prison official’s attempt to “prevent, thwart, or hinder a prisoner’s efforts to avail
himself of the administrative remedy,” Tuckel v. Grover, 660 F.3d 1249, 1252 (10th Cir. 2011),
that would excuse Plaintiff’s failure to exhaust her remedies. The record is clear, and Plaintiff
has admitted, that she did not follow the required, formalized grievance process. Her claim is
therefore dismissed.
In Count II, Plaintiff alleges violations of her Fifth and Fourteenth Amendment right to
due process of law because “Defendants,” not individually named, “denied her access to
administrative remedies after she returned from undergoing surgery for a cracked hip.” (Compl.
¶ 23.) This allegation cannot state a claim because courts have repeatedly held that prison
grievance procedures do not give rise to a liberty or property interest protected by the Fourteenth
Amendment. Meachum v. Fano, 427 U.S. 215, 224–25 (1976); see also Wilkinson v. Austin, 545
U.S. 209, 221 (2005); Murray v. Albany County Bd. of County Comm'rs, No. 99–8025, 2000 WL
472842, at *2 (10th Cir. Apr. 20, 2000) (ord. & j. not selected for publication) (quoting Buckley
v. Barlow, 997 F.2d 494, 495 (8th Cir.1993)); see also Todd v. Bigelow, 2:09-CV-808 DAK,
2012 WL 627965, at *7 (D. Utah Feb. 24, 2012) (mem. decision & ord. not selected for
publication), aff'd, 497 F. App’x 839 (10th Cir. 2012) (ord. & j. not selected for publication),
cert. denied, 133 S. Ct. 1251 (2013) reh’g denied, 133 S. Ct. 2385 (2013) (granting prison
officials summary judgment on a due process claim for violation of prison grievance

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procedures). Plaintiff has provided no authority to the contrary. Count II is therefore also
dismissed with prejudice.
Plaintiff has filed a request for a hearing on the motion, (doc. 28), alleging merely that
there are “[f]acts … in dispute.” (Id. at 1.) But Plaintiff did not, in the motion, in her complaint,
or otherwise, articulate any disputed fact relevant to her failure to exhaust. Accordingly, the
Court finds that good cause does not exist for oral argument on the motion, see DUCivR 7-1(f),
and the motion may be ruled upon based on the parties’ written submissions.
ORDER
Accordingly, it is hereby ORDERED that:
Defendants’ Motion to Dismiss for Failure to Exhaust Administrative Remedies, (doc.
20), is GRANTED.
Plaintiffs’ Complaint, (doc. 6), is DISMISSED WITH PREJUDICE for failure to
exhaust administrative remedies.
IT IS SO ORDERED.
DATED this 12 day of February, 2014.

_________________________
JUDGE DEE BENSON
United States District Court

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