Barnes v. Clark et al

Filing 41

MEMORANDUM DECISION & ORDER GRANTING MOTION FOR SUMMARY JUDGMENT: Granting 37 Motion for Summary Judgment; Granting 29 Motion for Summary Judgment. Having dismissed Plaintiffs federal claims here, the Court lacks pendent jurisdiction over Plaintiffs medical malpractice claims under state law, which are DISMISSED. With no controversy remaining in this Court, this case is CLOSED. Signed by Judge David Nuffer on 03/21/2017. (kpf)

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

EARL L. BARNES,
Plaintiff,

MEMORANDUM DECISION AND
ORDER GRANTING MOTION FOR
SUMMARY JUDGMENT

vs.
Case No. 2:14-CV-226 DN
LOGAN S. CLARK ET AL.,
Judge David Nuffer
Defendants.
Plaintiff, Earl L. Barnes, is a pro se prisoner proceeding in forma pauperis. In this civilrights complaint, 42 U.S.C.S. § 1983 (2017), he asserts his federal constitutional rights have been
breached by Defendants giving inadequate medical treatment for ear and urinary-tract infections.
He also raises a medical-malpractice claim under Utah state law.
Defendants move for summary judgment based on Plaintiff’s failure to exhaust his
administrative remedies through the prison grievance process. (See Docket Entry #s 29 & 37.)
Defendants support their motion with a Martinez report (including affidavits, medical history,
and grievance policy and history) and a memorandum. (See Docket Entry #s 24 & 29.) Plaintiff
responds to the motions, (see Docket Entry #s 30, 33 & 40); however, the only documents he
includes supporting his argument--that he did exhaust his administrative remedies--are
grievances about an unrelated incident (i.e., denial of pills based on a “cheeking” incident). The
Court rules for Defendants.
Summary judgment is appropriate where “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). “[A] mere

factual dispute will not preclude summary judgment; instead there must be a genuine issue of
material fact.” See Cooperman v. David, 214 F.3d 1162, 1164 (10th Cir. 2000). Here, by
presenting no documentation or evidence whatsoever as to grievances at level three, regarding
his claims about medical treatment for his infections, Plaintiff essentially admits that he did not
exhaust his claims. Thus, there is no dispute of material fact.
And, there are but two material facts: (1) the prison grievance policy requires that
grievances be submitted at all three levels. (Martinez rep’t, exh. 6, Utah Dep’t of Corrs.
Institutional Operations Div. Manual, chapt. Inmate Grievances, Docket Entry # 24.) (2) Plaintiff
did not submit level-three grievances for his claim of inadequate medical treatment as to his ear
and urinary-tract infections. Nothing else is relevant.
The United States Supreme Court and the Tenth Circuit have held that the exhaustion
requirement must be met to bring a § 1983 claim in federal court under PLRA:
[PLRA] imposes a mandatory exhaustion requirement on inmates
challenging prison conditions in federal court:
“No 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.”
42 U.S.C. § 1997e(a)[.] . . . An inmate’s failure to exhaust is an
affirmative defense and the burden is on the defendant to prove the
failure to exhaust. See Jones v. Bock, 549 U.S. 199, 127 S.Ct. 910,
921, 166 L.Ed.2d 798 (2007); Roberts v. Barreras, 484 F.3d 1236,
1241 (10th Cir.2007).
Thomas v. U.S. Bureau of Prisons, No. 07-1426, 2008 U.S. App. LEXIS 13415, at *4-5 (10th
Cir. June 24) (unpublished) (citation omitted).

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Further, the United States Supreme Court has held that a prisoner must exhaust
administrative remedies even when the relief sought cannot be granted by the administrative
process. Booth v. Churner, 532 U.S. 731, 734, 741 n. 6 (2001) (stressing “we will not read
futility or other exceptions into [PLRA’s] exhaustion requirements where Congress has provided
otherwise”). “An inmate properly exhausts by completing all the steps of the prison’s
administrative grievance process.” Hardeman v. Sanders, No. 10-7019, 2010 U.S. LEXIS 20467,
at *5 (10th Cir. Oct. 4).
The Supreme Court has held that exhaustion may not be satisfied by filing an untimely or
otherwise procedurally infirm grievance, but rather the PLRA requires “proper exhaustion.”
Woodford v. Ngo, 548 U.S. 81, 90 (2006). “Proper exhaustion” equals “’using all steps the
agency holds out, and doing so properly (so that the agency addresses the issues on the merits).’”
Id. (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir.2002)) (emphasis in original). In
Ngo, the Supreme Court concedes “that this will prevent certain prisoner cases from proceeding,
but notes that a ‘centerpiece of the PLRA’s effort to reduce the quantity . . . of prisoner suits is
an “invigorated” exhaustion provision, § 1997e(a).’ ‘Exhaustion is no longer left to the discretion
of the district court, but is mandatory.’” Tung v. Hartley, No. 1:08-CV-457-AWI, 2012 U.S.
Dist. LEXIS 30895, at *3 (E.D. Cal. Mar. 8) (citations omitted) (ellipses in original).
Here, to exhaust administrative remedies, by policy, the grieving inmate must go through
each of three levels to exhaust the process and before seeking judicial relief. (See Casper Decl.,
Docket Entry # 24-1, at ¶ 6.) But Plaintiff did not comply with grievance policy and therefore did
not exhaust his administrative remedies. Booth v. Churner, 532 U.S. at 741 n.6 ; see also
Jernigan v. Stuchell,304 F.3d 1030, 1032 (10th Cir. 2002) (“Even where the ‘available’

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remedies would appear to be futile at providing the kind of remedy sought, the prisoner must
exhaust the administrative remedies available.”).
Accordingly, IT IS ORDERED that:
1.

Defendants’ Motions for Summary Judgment as to Plaintiff’s inadequate-medical-

treatment claims under the Federal Constitution are GRANTED. (Docket Entry #s 29 & 37.)
2.

Having dismissed Plaintiff’s federal claims here, the Court lacks pendent

jurisdiction over Plaintiff’s medical-malpractice claims under state law, which are DISMISSED.
3.

With no controversy remaining in this Court, this case is CLOSED.
DATED this 21st day of March 2017.
BY THE COURT:

_____________________
CHIEF JUDGE DAVID NUFFER
United States District Court

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