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Burnett v. Miller

United States District Court, E.D. Oklahoma

September 26, 2017

KATHY MILLER, et al., Defendants.



         Plaintiff appealed the Opinion and Order dismissing this action (Dkt. 202) to the Tenth Circuit Court of Appeals. The appellate court affirmed in part and remanded in part for further proceedings concerning Plaintiff's claim of unconstitutional conditions in the medical cell at Davis Correctional Facility (DCF). Burnett v. Miller, No. 14-7069 (10th Cir. Nov. 20, 2015) (unpublished) (Dkt. 213). Defendants have filed a motion for summary judgment on the remanded issue (Dkt. 232), Plaintiff has filed a response to the motion (Dkt. 236), and Defendants have filed a reply (Dkt. 237). Plaintiff also has filed a motion for leave to file a second motion for summary judgment (Dkt. 230).

         Factual Background

         On November 5, 2011, while incarcerated at DCF, Plaintiff submitted a request for medical services, because he had experienced chest pains after minor exertion. He was seen in the DCF clinic the next day by Defendant Colpetzer, a registered nurse, who assessed the chest pain as cardiac, musculoskeletal, or pleuritic. Colpetzer noted that Plaintiff's blood pressure was elevated, and she administered an ECG which was noted as “normal.” The ECG then was submitted to DCF physician Dr. Reiheld who determined the results were normal.

         Over the next month, Plaintiff returned to the clinic for blood pressure monitoring on numerous occasions, and he submitted additional requests for medical services concerning his chest pain. On December 7, 2011, Dr. Reiheld diagnosed Plaintiff with “angina new onset” with a stated plan to schedule Plaintiff for an imaging procedure as soon as possible. Plaintiff's condition was not assessed as emergent, and Dr. Reiheld did not believe immediate transportation to another medical facility was necessary at that time.

         On the afternoon of December 7, Dr. Reiheld and Defendant Miller, the DCF Health Services Administrator, placed Plaintiff in an observation cell within the DCF clinic. The purpose of his placement there was to monitor him and have him readily accessible for transportation when an appointment for an imaging stress test was scheduled at Oklahoma Heart Hospital (OHH).

         Plaintiff alleges the conditions in the medical cell amounted to cruel and unusual punishment. He specifically complains of (1) a lack of heat when the outside temperature was below freezing, and (2) no food or drink for a day and a half. The nurses' log for December 8 at 9:30 p.m. indicated Plaintiff was doing fine and had no complaints of pain or distress. In addition, a monitoring form dated December 9 showed he was asleep from midnight until 6:00 a.m., and he was lying or sitting until 8:00 a.m. That form also had a notation to “Notify Health Services Staff For: NPO -- Ø food or drink.”[1] As of 8:30 a.m. on December 9, Burnett was being transported to OHH.

         Summary Judgment Standards

         Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). A dispute is genuine if the evidence is such that “a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material if it “might affect the outcome of the suit under the governing law.” Id. In making this determination, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255. A party opposing a motion for summary judgment, however, may not simply allege there are disputed issues of fact; rather, the party must support its assertions by citing to the record or by showing the moving party cannot produce admissible evidence to support the fact. Fed.R.Civ.P. 56(c). Thus, the inquiry for this Court is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-52.

         Exhaustion of Administrative Remedies

         Defendants allege Plaintiff failed to exhaust his administrative remedies before bringing this claim. “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). Inmates are required to exhaust available administrative remedies, and suits filed before the exhaustion requirement is met must be dismissed. Booth v. Churner, 532 U.S. 731, 740-41 (2001); Yousef v. Reno, 254 F.3d 1214, 1216 n.1 (10th Cir. 2001).

         The procedure for exhausting administrative remedies is set forth in DOC Policy OP-090124, “Offender Grievance Process, ” effective May 24, 2011 (Dkt. 232-2). An inmate first must attempt to resolve his complaint informally within three days of the incident. If that is unsuccessful, he may submit a Request to Staff (RTS) within seven calendar days of the incident, raising only one issue in each RTS. If the complaint still is not resolved, he then may file a grievance with the reviewing authority within 15 calendar days of the incident, or the date of the response to the RTS, whichever is later. If the grievance does not resolve the issue, the inmate may appeal to the DOC Administrative Review Authority or the Chief Medical Officer, whichever is appropriate, within 15 calendar days of receipt of the reviewing authority's response or any amended response. The administrative process is exhausted only after all of these steps have been taken.

         The record shows that during the time applicable to this lawsuit, Plaintiff used the DCF administrative remedies process to file eleven grievances. None of those grievances, however, mentioned Plaintiff's placement in the medical observation cell or the conditions of confinement in the medical observation cell:

         (1) Grievance No. 2011-1001-405-G, submitted on December 20, 2011, concerned ...

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