United States District Court, W.D. Oklahoma
KENT G. SAVAGE, Plaintiff,
JEFFREY TROUTT, et al., Defendants.
HEATON, CHIEF U.S. DISTRICT JUDGE.
Kent G. Savage, a former inmate at James Crabtree
Correctional Center (“JCCC”), an Oklahoma
Department of Corrections (“ODOC”) facility,
contends in this §1983 action that defendant Jeffrey
Troutt, DO, a JCCC medical provider, was deliberately
indifferent to his serious medical needs in violation of the
Eighth Amendment. Consistent with 28 U.S.C. § 636, the
matter was referred for initial proceedings to Magistrate
Judge Charles B. Goodwin. He has issued a Report and
Recommendation (“Report) recommending that a motion for
summary judgment filed by defendant Troutt be granted.
Plaintiff, who is represented by counsel, has filed an
addition to defendant Troutt, plaintiff initially sued the
ODOC and two other JCCC employees associated with the
facility's provision of medical care. He also asserted
other federal and state law claims. By order entered on
September 20, 2016, the other defendants and most of
plaintiff's claims were dismissed. See Doc.
Remaining for consideration is plaintiff's §1983
deliberate indifference claim against defendant Troutt in his
individual capacity. Plaintiff seeks to recover compensatory
and punitive damages based on Dr. Troutt's treatment of
his constipation and abdominal pain and his neuropathic pain
associated with his multiple sclerosis (“MS”).
Plaintiff essentially alleges defendant Troutt refused to
follow a specialist's instruction to provide him with
Metamucil to address the constipation caused by a medication
he takes for MS and failed to prescribe
gabapentinfor the pain resulting from his MS.
Troutt filed a motion for summary judgment contending
plaintiff failed to exhaust his administrative remedies and
that he is entitled to qualified immunity. In his Report, the
magistrate judge concluded plaintiff failed to exhaust his
administrative remedies with respect to his claim based on
his abdominal pain. While he concluded plaintiff had exhausted
his claim based on his neuropathic pain, the magistrate judge
determined defendant Troutt was entitled to qualified
immunity with respect to that claim because plaintiff failed
to establish the defendant had violated his Eighth Amendment
the Prisoner Litigation Reform Act (“PLRA”), a
prisoner must exhaust his administrative remedies prior to
filing a lawsuit regarding prison conditions in federal
court.” Little v. Jones, 607 F.3d 1245, 1249
(10th Cir. 2010); see 42 U.S.C. § 1997e(a). The
ODOC has a four step grievance process. Doc. #40-2; see
also Little, 607 F.3d at 1249 (describing the grievance
process). First, a prisoner must seek to resolve a complaint
informally with an appropriate staff member. Id. at
p. 7. If the issue is not resolved, the prisoner must submit
a Request to Staff. Id. at p. 8. If the issue is
still unresolved, the prisoner may then submit a formal
grievance. Id. at p. 9. That decision may be
appealed to the administrative review authority or chief
medical officer (“ARA”). Id. at p. 13.
“The ruling of the ARA is final and will conclude the
internal administration process available to the offender
within the jurisdiction” of the ODOC. Id. at
magistrate judge concluded plaintiff had not exhausted his
administrative remedies because, while he had initiated three
complaints regarding his abdominal pain claim (Grievances
15-52, 15-140, 15-160), he did not complete ODOC's
grievance process with respect to any of them. Jernigan
v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002)
(“An inmate who begins the grievance process but does
not complete it is barred from pursuing a § 1983 claim
under PLRA for failure to exhaust his administrative
remedies.”). He also determined there was an absence of
evidence creating a fact dispute as to whether JCCC officials
had prevented or thwarted plaintiff's exhaustion efforts
in any meaningful way. The magistrate judge therefore decided
defendant Troutt had established his affirmative defense of
failure to exhaust and recommended that summary judgment be
entered in his favor on plaintiff's abdominal pain claim.
disagrees, stating that he “meets the exhaustion
requirement because it is clear that exhaustion was not
‘available to him.'” Doc. #108, p. 4. He
asserts it is evident from the grievance process itself that
ODOC and those facilities it contracts with regularly
“‘prevent, thwart, [and] hinder a prisoner's
efforts to avail himself of an administrative
remedy.'” Id. at pp. 4-5 (quoting
Little, 607 F.3d at 1250). These general criticisms
of the grievance process are insufficient to demonstrate that
plaintiff should be excused from the exhaustion process. The
court concludes, though, that at least with respect to
Grievance 15-52, exhaustion is excused.
15-52 is based on a Request to Staff (“RTS”)
plaintiff submitted in February 2015 regarding his failure to
receive Metamucil. See Doc. 40-4. When he was not
satisfied with the answer he received to the RTS, he
submitted Grievance 15-52 on February 25, 2015. The Reviewing
Authority (“RA”) received plaintiff's
Grievance on March 9, 2015, which was out of time.
Nonetheless, the RA considered the Grievance on the merits
and plaintiff received the RA's response on April 9.
Plaintiff then submitted a Grievance Appeal, which the
Administrative Review Authority (“ARA”) received
on April 16, 2015. The ARA rejected plaintiff's Grievance
Appeal as being improperly submitted for two reasons:
plaintiff's Grievance was out of time and an incomplete
Request to Staff form was submitted.
magistrate judge concluded plaintiff failed to exhaust his
administrative remedies with respect to Grievance 15-52,
because he did not resubmit his rejected appeal within ten
days in accordance with OP-090124 § VII(b)(1)(e), Doc.
#40-2, p. 14. He recognized that plaintiff asserts it was the
prison's fault that his Grievance was late because he
claims to have put it in the inmate red mail box nine days
prior to the deadline. Regardless, the magistrate judge
determined plaintiff was required by the grievance policy to
bring the mistake to the attention of the ARA. Because he did
not resubmit his appeal, the magistrate judge determined
plaintiff had failed to exhaust all available remedies with
respect to Grievance 15-52.
does not address this aspect of the Report, but simply
reurges his argument that he placed his grievance in the
prison's red mailbox within fifteen days of receiving a
response to his Request to Staff, and that it was improperly
returned as untimely. He contends “it is out of his
control how long it takes prison officials to get it to the
reviewing authority.” Doc. #108, pp. 5-6. He then
claims the administrative remedy is unavailable so his
failure to exhaust should be excused.
Court concludes the ARA improperly denied Grievance 15-52 as
being out of time. The Grievance, not the Grievance Appeal,
was untimely. However, the Reviewing Authority accepted
plaintiff's belated Grievance and considered it on the
merits. “[T]hat step [made] the filing proper for
purposes of state law and avoids exhaustion, default, and
timeliness hurdles in federal court.” Ross v. Cnty
of Bernalillo, 365 F.3d 1181, 1186 (10th Cir. 2004),
abrogated on other grounds by Jones v.
Bock, 549 U.S. 199 (2007). Because plaintiff's
Grievance was deemed to be “properly” filed at
step three of the process, the court concludes the ARA could
not then turn around at step four, reverse itself, and deny
the appeal on the ground the Grievance was untimely. If
plaintiff's Grievance Appeal had been untimely, the ARA
could have denied the appeal on grounds of untimeliness. But
that was not what occurred. Plaintiff submitted his Grievance
Appeal on time and the Grievance was deemed to be timely by
the RA's action of addressing it on the merits.
Therefore, the ARA improperly rejected the Grievance Appeal
on the basis of untimeliness. However, untimeliness was not
the only ground for its rejection.
also determined that plaintiff's Grievance Appeal was
improper because an incomplete Request to Staff form was
submitted. In his Report, the magistrate judge questioned
whether OP-090124 allowed the ARA to reject a grievance
appeal on that basis. p. 9. The ...