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Dopp v. Honaker

United States District Court, W.D. Oklahoma

March 23, 2018

RICHARD LYNN DOPP, Plaintiff,
v.
BUDDY HONAKER, et al., Defendants.

          ORDER

          TIMOTHY D. DEGIUSTI, UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court for review of the Report and Recommendation [Doc. No. 68] issued by United States Magistrate Judge Charles B. Goodwin pursuant to 28 U.S.C. § 636(b)(1). Judge Goodwin recommends granting Defendants' Motions to Dismiss [Doc. Nos. 47, 49] and ordering the following dispositions: 1) dismissal under Fed.R.Civ.P. 12(b)(1) of claims for damages against persons protected by Eleventh Amendment immunity, 2) summary judgment under Fed.R.Civ.P. 56 dismissing § 1983 claims for which Plaintiff failed to exhaust administrative remedies, and 3) dismissal under Fed.R.Civ.P. 12(b)(6) of Plaintiff's properly exhausted § 1983 claim that he was denied surgical treatment of a serious medical condition.

         Plaintiff Richard Dopp, who appears pro se, has filed a timely Objection [Doc. No. 69], a Combined Motion for Referral and Discovery [Doc. No. 70] (hereafter, “First Motion”), and a Motion Requesting Supplementation of Record [Doc. No. 71] (hereafter, “Second Motion”). Plaintiff's Objection triggers the Court's duty to make a de novo determination of the portions of the Report to which a specific objection is made. The Court may accept, reject, or modify the recommended decision in whole or in part, or return the matter to the magistrate judge with instructions. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3).

         The First Motion requests the appointment of a medical expert to review Plaintiff's medical records, and an opportunity for Plaintiff to obtain information needed to support his claim under 42 U.S.C. § 1983 that he was denied necessary surgery, citing Fed.R.Civ.P. 56(d). See Pl.'s First Mot. [Doc. No. 70] at 2. However, Judge Goodwin does not recommend a disposition under Rule 56 of the § 1983 claim discussed in the First Motion but, instead, addresses the sufficiency of the Amended Complaint to state a claim for relief. Thus, the First Motion is not relevant to the issues presented for decision, and the Court finds no basis to permit further factual development of Plaintiff's claim in the manner requested by the First Motion.[1]

         The Second Motion asks the Court to consider two attached exhibits that, according to Plaintiff, were recently located while reviewing his files of other cases concerning the same medical issues, and were inadvertently omitted from this case.[2] The Court understands the Second Motion as a request to add the exhibits to Plaintiff's pleading so they may be used to evaluate the sufficiency of the Amended Complaint. Exhibit A is a handwritten letter dated February 23, 2017, from “Mary Alex, North American Spine;” Plaintiff seeks consideration of the writer's statement that his “treatment plan was reviewed by our doctor's physician assistant.” See Second Mot., Ex. A [Doc. No. 71-1]. Exhibit B is a copy of an OU Medical Center report dated February 1, 2017, containing handwritten margin notes. Plaintiff represents that the notes were added by Mary Alex or someone at North American Spine who reviewed the report.[3] Because exhibits to a complaint and additional factual allegations included in an objection to a magistrate's report may be considered in judging the sufficiency of a pleading, the Court finds that the Second Motion should be granted. See Gray v. GEO Group, Inc., No. 17-6135, 2018 WL 1181098, *2 (10th Cir. March 6, 2018) (unpublished) (citing Oxendine v. Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001), and McBride v. Deer, 240 F.3d 1287, 1289 (10th Cir. 2001)).[4]

         Factual and Procedural Background

         This civil rights action under 42 U.S.C. § 1983 concerns the conditions of Plaintiff's confinement as a state prisoner at the Cimarron Correctional Facility (“CCF”), a private prison in Cushing, Oklahoma, formerly operated by Corrections Corporation of America, and the North Fork Correctional Center (“NFCC”), a prison operated by the Oklahoma Department of Corrections (“ODOC”) in Sayre, Oklahoma. Plaintiff is proceeding under the Amended Complaint [Doc. No. 9] filed April 24, 2017.[5] Plaintiff claims he was denied at both facilities adequate medical treatment in violation the Eighth Amendment's proscription against cruel and unusual punishment. See Am. Compl. [Doc. No. 9] at 8, 9. Specifically, Plaintiff alleges he was denied surgical treatment of a “serious degenerative medical condition (cervical foraminal stenosis neck bone nerve cord impingement), ” for which corrective spinal-fusion surgery is needed; that he was denied (until February 2017) an updated MRI to determine the progression of his condition; and that he was denied at NFCC a prescription for Neurontin or other medications that alleviate severe pain. Id. at 12-17, 18-20. The named defendants as identified by Plaintiff are: 1) Buddy Honaker, ODOC's medical services administrator; 2) Joel McCurdy, ODOC's chief medical officer; 3) Stephen Paine, a physician at CCF; 4) Theresa Sellers, CCF's health services administrator; 5) Shirley May, health services administrator at CCF and then NFCC; 6) Laura Neefe, CCF's health services administrator; 7) Ms. Baird, CCF's nurse practitioner; 8) Dr. Neau, CCF's medical director; 9) Bob Thompson, a physician at NFCC; and 10) Jeffrey Troutt, ODOC's regional medical director.

         Defendants Honaker, McCurdy, May, Thompson, and Troutt (the “ODOC Defendants”) have moved for dismissal under Rule 12(b)(1) and (6).[6] Defendants Baird, Neefe, Paine, Neau, and Sellers (the “CCA Defendants”) have moved for dismissal under Rule 12(b)(6) and, alternatively, Rule 56.[7] Both the ODOC Defendants and the CCA Defendants filed court-ordered Special Reports [Doc. Nos. 46, 48] pursuant to Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978).

         After careful consideration of Defendants' Motions, Plaintiff's Responses, and the case record, Judge Goodwin presents a thorough analysis of the issues in a 31-page Report [Doc. No. 68]. Plaintiff's Objection is silent concerning the first issue addressed in the Report, namely, the ODOC Defendants' Eleventh Amendment immunity from a suit for damages. The Court therefore finds that Plaintiff has waived further review of this part of the Report. See United States v. 2121 E. 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996) (“firm waiver” rule requires a specific objection to preserve an issue for de novo review by district court). Plaintiff objects only to Judge Goodwin's analysis and recommendations regarding administrative exhaustion and the sufficiency of the Amended Complaint to state a § 1983 claim of deliberate indifference to a serious medical need in violation of the Eighth Amendment.

         Failure to Exhaust Administrative Remedies for a § 1983 Claim Regarding a New MRI or Pain Medications

         Judge Goodwin finds certain aspects of Plaintiff's claim that he was denied medical care must be dismissed pursuant to 42 U.S.C. § 1997e(a) because Plaintiff failed to exhaust his administrative remedies regarding these matters, namely, a new MRI scan and certain pain medications. Applying the summary judgment procedure of Rule 56 to record materials that are appropriate for consideration, including Plaintiff's sworn filings, Judge Goodwin finds that Plaintiff failed to complete the administrative review process for his grievances regarding a request for an updated MRI in July 2016, and requests for prescription pain medications in September and November 2015 and February and October 2016. Plaintiff does not challenge Judge Goodwin's statement of undisputed facts relevant to the defense of administrative exhaustion.[8] Plaintiff instead challenges the legal conclusions drawn from the undisputed facts.

         The Court rejects Plaintiff's contention that the ODOC and CCA defendants have not established their exhaustion defense for § 1983 claims regarding a delayed MRI and pain medications. The detailed statement of facts compiled by Judge Goodwin shows that none of Plaintiff's grievances regarding these issues reached the final step of the administrative process. It is undisputed that Plaintiff filed only one formal grievance regarding an MRI scan at CCF, that Plaintiff's grievance appeal was returned unanswered, and that Plaintiff did not resubmit it. It is similarly undisputed that Plaintiff's multiple grievances regarding pain medications were either submitted as improper “emergency grievances, ” were returned unanswered during the administrative process for procedural errors, or were improperly submitted directly to the appeal authority.

         Liberally construing the Objection, Plaintiff argues that the stated reasons for rejecting his grievance appeals were pretextual, that the cited procedural errors could not have been corrected, and that he was not offered an opportunity to resubmit the appeals.[9]Plaintiff invokes an exception to exhaustion when prison officials thwart a prisoner's efforts to complete the administrative process. See Obj. at 2 (citing Jernigan v. Stuchell, 304 F.3d 1030 (10th Cir. 2002), Little v. Jones, 607 F.3d 1245 (10th Cir. 2010), and Ross v. Blake, 136 S.Ct. 1850, 1859 (2016)); id. at 4-5 (citing Blake).

         Upon de novo consideration, the Court is not persuaded by Plaintiff's arguments. Plaintiff is correct that only “available” administrative remedies must be exhausted, and “[w]here prison officials prevent, thwart, or hinder a prisoner's efforts to avail himself of an administrative remedy, they render that remedy ‘unavailable.'” See Little, 607 F.3d at 1250; see also Blake, 136 S.Ct. at 1860 (“when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation . . ., such interference with an inmate's pursuit of relief renders the administrative process unavailable”). However, an inmate can properly be required to comply with the applicable procedural rules through all levels of the administrative process. See Woodford v. Ngo, 548 U.S. 81, 90 (2006); see also Thomas v. Parker, 609 F.3d 1114, 1118 (10th Cir. 2010). The Tenth Circuit has made clear that an inmate “‘may not successfully argue that he had exhausted his administrative remedies by, in essence, failing to employ them.'” See Thomas, 609 F.3d at 1118 (quoting Jernigan, 304 F.3d at 1033). In this case, Plaintiff has not come forward with facts to support a reasonable inference that prison ...


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