United States District Court, W.D. Oklahoma
OPINION AND ORDER
CHARLES B. GOODWIN, United States District Judge.
before the Court are the following motions: (1) Motion to
Dismiss by Defendants Scott Crow and Joe M. Allbaugh (Doc.
No. 26); (2) Motion to Dismiss by Defendants Sara Givens and
Michael McDougell (Doc No. 28); and (3) Plaintiff’s Motion
for Leave to Amend Complaint and Appointment of Counsel (Doc.
No. 30). On review of the parties’ arguments and the
record, the Court determines that Defendants’ motions
should be granted on the ground that Plaintiff has failed to
exhaust his administrative remedies as required by the Prison
Litigation Reform Act (“PLRA”), 42 U.S.C. §
1997e, and that Plaintiff’s requests for leave to amend
and for appointment of counsel should be denied.
claims are based on Defendants’ alleged
“procrastination” in scheduling a
knee-replacement surgery, which Plaintiff claims is
“needed to allow [him] to walk without pain.” Ex.
1 to Am. Compl. (Doc. No. 12-1) at 1. The record reflects that
Plaintiff first complained of stiffness in his right leg on
January 18, 2013. See S.R. Ex. 7 (Doc. No. 24-7) at
2. On August 7, 2013, an x-ray of Plaintiff’s right
knee showed “[s]evere narrowing of the medical joint
compartment with osteophytes and periarticular severe
sclerosis.” Id. at 11. Plaintiff was ordered a
stabilizing brace in November 2013, id. at 18, 20,
and a hinged knee brace in June 2015, id. at 48-49.
November 2013 and October 2018, Plaintiff was evaluated and
treated for knee pain on multiple occasions. See Id .
at 21-175. On March 6, 2018, Plaintiff was advised that
knee-replacement surgery would “be the only way for him
to achieve more comfort.” Id. at 167. At that
time, however, Plaintiff opted for a less invasive treatment.
Id. (noting that “[a]fter a lengthy
discussion” regarding “further treatment
options” for Plaintiff, “he opt[ed] for Cortison
injection”). It wasn’t until October 18, 2018
that Plaintiff expressed his “read[iness] to be
considered for [knee-replacement surgery].”
Id. at 176.
October 26, 2017, Plaintiff submitted a Request to Staff
requesting knee surgery and pain medication. See Ex.
3 to Am. Compl. (Doc. No. 12-3) at 5. In response, DOC
officials stated that Plaintiff’s pain medication had
been replaced and informed him that knee surgery requires
committee approval and that the approval process “takes
several months.” Id. On May 21, 2018,
Plaintiff submitted another Request to Staff inquiring about
the status of his knee surgery. Id. at 6. In
response, Plaintiff was again advised about the approval
process required for knee surgeries. Id.
filed this lawsuit on June 13, 2018, apparently without
taking further action on his May 21, 2018 Request to
Staff. See Compl. (Doc. No. 1).
Defendants’ Motions for Summary Judgment
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). “An
issue is ‘genuine’ if there is sufficient
evidence on each side so that a rational trier of fact could
resolve the issue either way.” Adler v. Wal-Mart
Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998).
“An issue of fact is ‘material’ if under
the substantive law it is essential to the proper disposition
of the claim.” Id.
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 (1986). If the movant carries
this initial burden, the nonmovant must then “go beyond
the pleadings and ‘set forth specific facts’ that
would be admissible in evidence in the event of trial from
which a rational trier of fact could find for the
nonmovant.” Adler, 144 F.3d at 671. The Court
must then determine “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 v. Liberty Lobby, 477
U.S. 242, 251-52 (1986). Parties may establish the existence
or nonexistence of a material disputed fact by:
• citing to “depositions, documents,
electronically stored information, affidavits or
declarations, stipulations . . ., admissions, interrogatory
answers, or other materials” in the record; or
• demonstrating “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 show that the undisputed material
facts establish all of the elements of the defense.
SeeHutchinson v. Pfeil, 105 F.3d 562, 564
(10th Cir. 1997) (“The defendant . . . must demonstrate
that no disputed material fact exists regarding the
affirmative defense asserted.”). If the defendant meets
this burden, the burden shifts to the plaintiff to cite
evidentiary material that shows there is a genuine factual