United States District Court, W.D. Oklahoma
KENT G. SAVAGE, Plaintiff,
JEFFERY TROUTT, Defendant.
REPORT AND RECOMMENDATION
CHARLES B. GOODWIN UNITED STATES MAGISTRATE JUDGE
Kent G. Savage, a state prisoner appearing through counsel,
seeks damages against Defendant Jeffery Troutt, DO, for
allegedly violating Plaintiff's Eighth Amendment right to
adequate medical care while incarcerated. Chief United States
District Judge Joe Heaton has referred the case to the
undersigned Magistrate Judge for proceedings consistent with
28 U.S.C. § 636.
pending 42 U.S.C. § 1983 claims stem from the medical
care he received while incarcerated at James Crabtree
Correctional Center (“JCCC”), an Oklahoma
Department of Corrections (“ODOC”) facility,
between August 2014 and June 2015. See Compl. (Doc.
No. 1) at 3-11, 18-21. Plaintiff alleges that Defendant, who was
the treating physician at JCCC, was deliberately indifferent
to Plaintiff's medical needs when (1) treating Plaintiff
for his abdominal discomfort and constipation (the
“Abdominal-Pain Claim”), and (2) treating
Plaintiff for the neuropathic pain associated with his
multiple sclerosis (“MS”) (the “MS-Pain
Claim”). Plaintiff seeks compensatory and punitive
damages against Defendant in Defendant's individual
capacity. See Id. at 2, 16, 23.
has moved for summary judgment on Plaintiff's claims.
See Def.'s Mot. Summ. J. (Doc. No. 88).
Plaintiff has filed several responses. See Pl.'s
Resp. (Doc. No. 92); Pl.'s Am. Resp. (Doc. No. 93);
Pl.'s Suppl. Resp. (Doc. No. 103). And Defendant has
replied. See Def.'s Reply (Doc. No. 104). In
addition, a special report was prepared by JCCC officials and
filed in accordance with the Court's order and
Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978).
See S.R. (Doc. No. 40); S.R. Exs. 9, 10 (Doc. Nos.
Abdominal-Pain Claim: Whether Plaintiff Exhausted Available
seeks summary judgment on Plaintiff's Abdominal-Pain
Claim on the basis of Defendant's affirmative defense of
nonexhaustion of administrative remedies. Specifically,
Defendant asserts that Plaintiff did not, prior to bringing
suit on that claim, exhaust his available administrative
remedies as required by the Prison Litigation Reform Act of
1995 (“PLRA”), codified in pertinent part at 42
U.S.C. § 1997e(a). See Def.'s Mot. Summ. J.
at 10-14; see also Jones v. Bock, 549 U.S. 199,
219-20 (2007) (“All [courts] agree that no unexhausted
claim may be considered.”).
Standard of Review
judgment is a means of testing in advance of trial whether
the available evidence would permit a reasonable jury to find
in favor of the party asserting a claim. The Court must grant
summary judgment 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). When
considering a motion for summary judgment, the Court views
the evidence and any reasonable inferences drawn from the
record “in the light most favorable to the non-moving
party.” Pepsi-Cola Bottling Co. of Pittsburg, Inc.
v. PepsiCo, Inc., 431 F.3d 1241, 1255 (10th Cir. 2005);
see also Scott v. Harris, 550 U.S. 372, 380 (2007).
that moves for summary judgment has the burden of showing
that the undisputed material facts require judgment as a
matter of law in its favor. Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). To defeat summary
judgment, the nonmovant need not convince the Court that it
will prevail at trial, but it must cite sufficient evidence
admissible at trial to allow a reasonable jury to find in the
nonmovant's favor-i.e., to show that there is a genuine
question of material fact that must be resolved by the jury.
See Garrison v. Gambro, Inc., 428 F.3d 933, 935
(10th Cir. 2005). Parties may establish the existence or
nonexistence of a disputed material fact through:
• citation to “depositions, documents,
electronically stored information, affidavits or
declarations, stipulations . . ., admissions, interrogatory
answers, or other materials” in the record; or
• demonstration “that the materials cited do not
establish the absence or presence of a genuine dispute, or
that an adverse party cannot produce admissible evidence to
support the fact.”
Fed. R. Civ. P. 56(c)(1)(A)-(B).
defendant seeking summary judgment on the basis of an
affirmative defense “must demonstrate that no disputed
material fact exists regarding the affirmative defense
asserted.” Hutchinson v. Pfeil, 105 F.3d 562,
564 (10th Cir. 1997). “If the defendant meets this
initial burden, the plaintiff must then demonstrate with
specificity the existence of a disputed material fact”
as to one or more elements of the affirmative defense, absent
which summary judgment must be granted in favor of the
assessing Defendant's Motion, the undersigned has treated
the factual allegations of Plaintiff's verified filings
(e.g., the Complaint and Plaintiff's affidavits), and the
affidavits of ODOC's special-report coordinator and of
Defendant, as affidavit or declaration evidence to the extent
those allegations are sworn or declared under penalty of
perjury and are “made on personal knowledge, set out
facts that would be admissible in evidence, and show that the
affiant or declarant is competent to testify on the matters
stated.” Fed.R.Civ.P. 56(c)(4); see Hall v.
Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991); see
also 28 U.S.C. § 1746.
PLRA provides that no action under 42 U.S.C. § 1983 may
be brought by a prisoner regarding conditions of confinement
“until such administrative remedies as are available
are exhausted.” 42 U.S.C. § 1997e(a); see also
Woodford v. Ngo, 548 U.S. 81, 90, 93-103 (2006)
(explaining that § 1997e(a) requires “proper
exhaustion”-i.e., “using all steps that the
agency holds out, and doing so properly (so that the
agency addresses the issues on the merits)” (internal
quotation marks omitted)). “Proper exhaustion demands
compliance with an agency's deadlines and other critical
procedural rules because no adjudicative system can function
effectively without imposing some orderly structure on the
course of its proceedings.” Ngo, 548 U.S. at
The Oklahoma Department of Corrections' Grievance
has adopted an offender Grievance Process, Operations
Memorandum OP-090124, through which a prisoner in its custody
at any prison facility may seek administrative decisions or
answers to complaints. See OP-090124 (eff. Nov. 20,
2014) (S.R. Ex. 2 (Doc. No. 40-2) at 2-22). The ODOC
Grievance Process requires an inmate initially to attempt
informal resolution of his or her complaint by speaking to an
appropriate staff member within three days of the relevant
incident. See Id. § IV(B). If the inmate is
dissatisfied after this initial attempt, then he or she may
submit a written “Request to Staff” within seven
days of the incident. Id. § IV(C). This first
informal level may be bypassed only if the complaint involves
a sensitive topic or an emergency. See id. §
next level of the ODOC Grievance Process is the filing of a
formal grievance. If dissatisfied with the response received
from a Request to Staff, the inmate may file a grievance
within fifteen days of the date of the response to a timely
Request to Staff. See id. § V(A)(1). The
grievance is submitted to the facility's Reviewing
Authority, defined as the “facility head or facility
correctional health services administrator.”
Id. §§ I(D), V(B)(1). This level may be
bypassed only if the grievance involves a sensitive topic
concerning the Reviewing Authority. See id. §
final level of the ODOC Grievance Process is the filing of a
grievance appeal. If dissatisfied with the response to a
grievance, the inmate may file a grievance appeal within
fifteen days of the date of that response. See id.
§ VII(A), (B). The grievance appeal is submitted to the
Administrative Review Authority (“ARA”), defined
as the ODOC Director's designee or the ODOC Chief Medical
Officer's designee. See id. §§ I(E),
VII(B). A grievance appeal may be filed only upon the
following grounds: (1) newly discovered/available evidence
not considered by the Reviewing Authority; or (2) probable
error committed by the Reviewing Authority such as would be
grounds for reversal. See Id. § VII(A). The
ruling of the ARA is final and concludes the administrative
remedy procedures available through ODOC. See id.
Plaintiff's Efforts to Exhaust His Abdominal-Pain
claims that his Eighth Amendment rights were violated by
Defendant's deliberate indifference to Plaintiff's
abdominal pain and constipation, specifically Defendant's
alleged refusal to follow a specialist's instructions for
treatment and failure to provide Plaintiff with Metamucil,
stool softeners, or laxatives. See Compl. at 3,
5-11, 18-19; Savage, 2016 WL 8711398, at *8-9.
record reflects that Plaintiff made three relevant grievance
attempts. See Compl. at 14-15; S.R. Ex. 4 (Doc. No.
40-4) at 2-9; id. Ex. 6 (Doc. No. 40-6) at 2-8;
id. Ex. 7 (Doc. No. 40-7) at 2-9. The undersigned
examines each of these attempts below.
February 2015, Plaintiff submitted a Request to Staff
regarding his failure to receive Metamucil. See S.R.
Ex. 4, at 2-3. He received an answer on February 19, 2015,
and, not satisfied, he submitted Grievance 15-52 on February
25, 2015. See Id. at 2, 4-5. The Reviewing Authority
received this Grievance on March 9, 2015. See Id. at
4. Plaintiff received a written response to his Grievance and
then appealed. See Id. at 6-8. On May 19, 2015,
Plaintiff's Grievance Appeal was returned unanswered with
two reasons cited: (1) the underlying Request to Staff was
incomplete, as Plaintiff had failed to completely fill out
the form; and (2) the underlying Grievance was untimely, as
Plaintiff had submitted it more than 15 days after
Plaintiff's receipt of the response to the Request to
Staff. See Id. at 9.
ODOC Grievance Process provided Plaintiff an
“automatic” “procedural right” to
resubmit his rejected appeal within ten days. Jones v.
Miller, No. CIV-13-385-D, 2014 WL 4267409, at *1 (W.D.
Okla. Aug. 27, 2014); Eastham v. Jones, No.
CIV-12-769-D, 2013 WL 5972431, at *6 (W.D. Okla. Nov. 8,
2013); Barber v. Sutmiller, No. CIV-15-78-C, 2017 WL
6811797, at *5 n.7 (W.D. Okla. Oct. 31, 2017) (R. & R.),
adopted, 2018 WL 297604 (W.D. Okla. Jan. 4, 2018);
see OP-090124 § VII(B)(1)(e). Plaintiff,
however, did not resubmit his Grievance Appeal. As explained
below, in failing to take this last step Plaintiff failed to
fully exhaust his administrative remedies.
Jernigan v. Stuchell, the Tenth Circuit addressed a
similar issue. In that case, a prisoner-plaintiff's
grievance appeal had been rejected by the ARA pursuant to
ODOC's grievance process on the cited basis that the
plaintiff had failed to first obtain a response to a
grievance. See Jernigan, 304 F.3d 1030, 1032 (10th
Cir. 2002). The plaintiff was given ten days to cure that
deficiency, but-rather than resubmitting his appeal-the
plaintiff filed a lawsuit. See Id. Acknowledging the
plaintiff's argument that the rejection of the appeal was
erroneous because he had indeed submitted a grievance and it
was “lost or misfiled” by prison officials, the
Tenth Circuit nevertheless determined that the plaintiff had
failed to exhaust his administrative remedies. Id.
at 1033. Pointing to the plaintiff's ...