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Savage v. Troutt

United States District Court, W.D. Oklahoma

January 25, 2018

KENT G. SAVAGE, Plaintiff,



         Plaintiff 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.


         Plaintiff's 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.[1] 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.[2] See Id. at 2, 16, 23.

         Defendant 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. 45-1, -2).

         I. The Abdominal-Pain Claim: Whether Plaintiff Exhausted Available Administrative Remedies

         Defendant 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.”).[3]

         A. Standard of Review

         Summary 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).

         A party 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).

         A 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 defendant. Id.

         When 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.

         B. The PLRA

         The 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 90-91.

         C. The Oklahoma Department of Corrections' Grievance Process

         ODOC 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. § VIII(A).

         The 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. § VIII(A)(4).

         The 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. § VII(D)(1).

         D. Plaintiff's Efforts to Exhaust His Abdominal-Pain Claim

         Plaintiff 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.

         The 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.

         1. Grievance 15-52

         In 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.

         The 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).[4] 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.

         In 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 ...

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