Opinion
CIV-21-672-D
01-25-2022
CHAD EDWARD LEATHERMAN, Plaintiff, v. CORECIVIC, Inc., et. al., Defendants.
REPORT AND RECOMMENDATION
GARY M. PURCELL UNITED STATES MAGISTRATE JUDGE
Plaintiff, a state inmate represented by counsel, brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights. Before the Court is Defendants' Motion for Summary Judgment limited to the issue of whether Plaintiff exhausted his administrative remedies. Doc. No. 37. Plaintiff has filed a Response (Doc. No. 45), to which Defendants have replied. Doc. No. 46. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). For the following reasons, it is recommended the Motion for Summary Judgment be granted.
I. Plaintiff's Allegations
In 2018, Plaintiff was confined in the Cimarron Correctional Facility (“Cimarron”) located in Cushing, Oklahoma. Prior to July 26, 2018, Cimarron officials removed the ladders to the top bunks of the beds in each cell. On or around the morning of July 26, 2018, Plaintiff fell while disembarking from the top bunk of his bed. He suffered a fractured right tibia and fibula in the fall. On July 27, 2018, Plaintiff underwent surgery at OU Medical Center to insert titanium plates and screws into both the tibia and fibula in his right leg. On August 2, 2018, Plaintiff underwent a second surgery at OU Medical Center.
Plaintiff received physical therapy at Lindsay Municipal Hospital from August 7, 2018 until August 17, 2018. Plaintiff returned to Cimarron on August 7, 2018, with medical orders for his knee to remain straight for 2-3 weeks, non-weightbearing for 12 weeks, and to use crutches, a walker, or a wheelchair to ambulate. In spite of these orders, Plaintiff was not placed in a medical cell and remained assigned to a top bunk without a ladder to get up and down. When Plaintiff requested a ladder, Cimarron staff refused, telling him to “do the best he could.”
Additionally, following August 17, 2018, Plaintiff was supposed to continue to receive physical therapy at Cimarron. However, Cimarron informed him they did not offer this and gave him a document with six pictures of exercises he could perform himself. Plaintiff did so but it was not effective.
By October 12, 2018, Plaintiff submitted a medical request for the facility physician, Dr. Paine, to look at his leg because it felt like it was still broken. On March 31, 2019, Plaintiff submitted another request in which he stated that it felt like the screw was coming through the skin on the right leg and that it burned and throbbed constantly. Upon examining him, Dr. Paine notified Plaintiff of post-traumatic changes in his leg and recommended he wear anti-embolic stockings to ease the pain.
On July 8, 2019, Plaintiff was seen at OU Medical Center for his one-year follow up and they determined he had developed medial compartment knee arthritis. Recommended treatment included physical therapy, ice and heat therapy, and pain medication. Plaintiff requested treatment from Cimarron but officials denied the same. Plaintiff's leg has not fully recovered and he continues to suffer from severe knee pain. Additionally, Plaintiff is still required to utilize the top bunk without a ladder.
By this action, Plaintiff asserts a state law claim of negligence, as well as federal claims under the Eighth and Fourteenth Amendments based on theories of state-created danger and cruel and unusual punishment. Plaintiff has named CoreCivic, Inc. f/k/a Corrections Corporation of America, Cimarron Warden Michael Sizemore, Dr. Paine, and Defendant Does I-X as Defendants in this matter.
II. Uncontroverted Facts
1. Cimarron had the Oklahoma Department of Corrections' (“ODOC”) grievance policy in place at the time of Plaintiff's confinement. Doc. No. 37-2.
2. On or around the morning of July 26, 2018, Plaintiff fell while disembarking from the top bunk of his bed, breaking his right tibia and fibula. Doc. No. 45-1 at 1; Doc. No. 45-6.
3. In a Request to Staff dated April 14, 2020, Plaintiff expressed concerns about safety regarding the removal of ladders from the bunk beds due to the dangers it posed utilizing the top bunk. A Cimarron official responded that the ladders were removed for safety concerns. Doc. No. 45-2.
4. In a Request to Staff dated April 21, 2020, Plaintiff requested physical therapy for his leg and explained that the surgeon at OU Medical Center indicated he needed full knee replacement, that he is in constant pain, and does not have full range of motion any longer. A Cimarron official responded, instructing Plaintiff to submit a sick call request so that an appointment could be made to address his concerns. Doc. No. 45-3.
5. Plaintiff's counsel attempted to contact Plaintiff two times, in the same manner he had previously reached Plaintiff, to guide him through completion of the grievance process. However, Cimarron officials did not allow Plaintiff to return the calls or messages. Doc. No. 45-1 at 2; Doc. No. 45-7 at 2.
6. On May 15, 2020, Plaintiff's counsel faxed a letter to Defendant Sizemore insisting that he be allowed to communicate with Plaintiff regarding completion of the grievance process. Doc. No. 45-1 at 2; Doc. No. 45-7 at 1-2.
7. Following this, Cimarron permitted Plaintiff to contact his counsel, who instructed Plaintiff to submit a formal grievance. Doc. No. 45-1 at 3.
8. In a Grievance dated May 25, 2020, Plaintiff explained that he slipped off the top bunk and broke his right tibia and fibula bones, received no physical therapy, and that the OU Medical Center surgeon told him that he needed a full knee replacement. Plaintiff requested that his knee be repaired, physical therapy, pain management, and proper medical care. Doc. No. 45-4.
9. Cimarron officials returned the Grievance unanswered with a form indicating Plaintiff had failed to attach the corresponding Request to Staff and that the Grievance was not sufficiently specific. Plaintiff was permitted to properly resubmit the Grievance within 10 days. Doc. No. 45-5.
10. Under penalty of perjury, Plaintiff has stated that he did submit the underlying Requests to Staff with his original Grievance. Doc. No. 45-1 at 3.
11. Within 10 days, Plaintiff submitted an amended Grievance, again attaching the Requests to Staff, providing the documents to Ms. Rashti, a Cimarron employee, as he had been instructed. Doc. No. 45-1 at 3.
12. Following his submission of the amended Grievance, Plaintiff continued to follow up with Cimarron officials regarding the same. However, he never received a response, or an explanation for the lack of a response. Doc. No. 45-1 at 3.
13. His understanding was that the grievance was never answered because the Cimarron facility was in the process of closing, as well as the ongoing complications resulting from the COVID-19 pandemic. Doc. No. 45-1 at 3.
In or around October 2020, Cimarron ended its relationship with ODOC, closed its facility, and transferred prisoners to other facilities. Doc. No. 45-1 at 4. Plaintiff was transferred to Davis Correctional Facility located in Davis, Oklahoma.
III. Summary Judgment Review
Summary judgment may only be granted when there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). In considering a motion for summary judgment, the Court reviews the evidence and inferences drawn from the record in the light most favorable to the nonmoving party. Burke v. Utah Transit Auth. & Local, 462 F.3d 1253, 1258 (10th Cir. 2006).
A dispute is “genuine” if a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Material facts are “facts that might affect the outcome of the suit under the governing law ....” Id. “At the summary judgment stage, a complainant cannot rest on mere allegations, but must set forth by affidavit or other evidence specific facts, which for purposes of the summary judgment motion will be taken to be true.” Burke, 462 F.3d at 1258 (quotations omitted). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quotations omitted).
IV. Exhaustion of Administrative Remedies
A. Requirement for Exhaustion of Administrative Remedies
Defendants contend Plaintiff failed, prior to filing this action, to exhaust administrative remedies through ODOC's grievance process. Proper exhaustion of administrative remedies is mandated by the Prison Litigation Reform Act (“PLRA”), which provides that a prisoner cannot bring an action “with respect to prison conditions under [§] 1983 . . . until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a); see also Jones v. Bock, 549 U.S. 199, 211 (2007) (“There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court.”); Ross v. Blake, 578 U.S. 632, 640 (2016) (“[T]he history of the PLRA underscores the mandatory nature of its exhaustion regime.”).
The exhaustion doctrine protects administrative agency authority and promotes efficiency. Woodford v. Ngo, 548 U.S. 81, 89 (2006). Because the exhaustion doctrine is an affirmative defense, the defendants “bear the [initial] burden of asserting and proving that the plaintiff did not utilize administrative remedies.” Tuckel v. Grover, 660 F.3d 1249, 1254 (10th Cir. 2011). Once the defendant demonstrates a plaintiff has failed to exhaust his administrative remedies, “the onus falls on the plaintiff to show that remedies were unavailable to him[.]” Id.
Further, “substantial compliance [with the grievance procedure] is insufficient.” Fields v. Okla. State Penitentiary, 511 F.3d 1109, 1112 (10th Cir. 2007). Proper exhaustion requires compliance with all of the prison's grievance procedures, including adherence to “deadlines and other critical procedural rules[, ] because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings.” Woodford, 548 U.S. at 90-91. Thus, “[a]n inmate who begins the grievance process but does not complete it is barred from pursuing a § 1983 claim[.]” Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002).
There is no exception to the exhaustion requirement for “special circumstances.” Ross, 578 U.S. at 638-42 (discussing mandatory language means a court may not excuse a failure to exhaust, even to take special circumstances into account) (citing Miller v. French, 530 U.S. 327, 337 (2000) (explaining that “[t]he mandatory ‘shall' . . . normally creates an obligation impervious to judicial discretion”)). Thus, if administrative remedies are available, an inmate must complete each step of the administrative process before a federal court can consider the merits of the inmate's complaint based on alleged violations of constitutional rights.
B. Grievance Procedure
The ODOC's grievance procedure is clearly set forth in the ODOC Inmate/Offender Grievance Process OP-090124. Doc. No. 37-2. Initially, a prisoner must seek to resolve any complaint by informally raising the matter with an appropriate staff member. Id. at 8. If the matter is not resolved informally, the prisoner must submit a Request to Staff within seven calendar days of the incident, raising only one issue therein. Id.
If the Request to Staff does not successfully resolve the issue, the prisoner must submit a formal Grievance Form, with a copy of the Request to Staff attached, to the appropriate facility reviewing authority within 15 calendar days from the date of the response to the Request to Staff, and can only raise one issue. Id. at 10-11. The reviewing authority will assign a number to each grievance received and will generally answer the grievance within 20 days of its receipt. Id. at 12. If the grievance is denied by the reviewing authority at the prison level, a prisoner must appeal the decision to the Administrative Review Authority (“ARA”) within 15 days of receipt of the same to complete exhaustion of his administrative remedies. Id. at 14-16. The policy also states, “If there has been no response by the reviewing authority within 30 days, but no later than 60 days, of submission, the inmate/offender may send a grievance to the ARA with evidence of submitting the grievance to the proper reviewing authority. The grievance submitted to the ARA will assert only that the inmate's/offender's grievance was not answered by the reviewing authority.” Id. at 12.
C. Plaintiff's Utilization of the Grievance Process
There is no question Plaintiff began the administrative review process regarding the claims he asserts herein. He submitted two Requests to Staff and a Grievance that he later resubmitted to correct alleged errors. In light of this record, Defendants argue they are entitled to summary judgment based on Plaintiff's failure to complete the final step, appeal to the ARA. Doc. No. 46 at 78. As previously explained, ODOC's grievance process provides that if a prison fails to respond to a grievance in more than thirty days, then the inmate may submit an appeal to the ARA, limited to the issue of the facility's failure to so respond. Doc. No. 37-2 at 12.
Defendants dispute Plaintiff's assertion that he submitted an amended Grievance. Doc. No. 46 at 3-5. However, Plaintiff has asserted under penalty of perjury that he did submit an amended Grievance and at this stage of litigation, the Court reviews evidence and draws inferences in the light most favorable to Plaintiff. Burke, 462 F.3d at 1258.
Plaintiff does not dispute the fact that he did not file such an appeal after Cimarron failed to respond to his amended Grievance. Instead, Plaintiff argues that Cimarron's failure to respond to Plaintiff's amended Grievance rendered the administrative process unavailable. Doc. No. 45 at 10, 11-13. In so arguing, Plaintiff primarily relies on two cases from this Court, Proctor v. Bd. of Cnty. Comm'rs of Pottawatomie, No. CIV-07-654-M, 2010 WL 711198, at *3-4 (W.D. Okla. Feb. 25, 2010) and Adams v. Bouchard, 591 F.Supp.2d 1191, 1198, 1200 (W.D. Okla. 2008)).
In Proctor, the plaintiffs brought a § 1983 action based on events that allegedly occurred while they were confined in the county detention center. Proctor, 2010 WL 711198, at *1. The defendants moved for summary judgment arguing, inter alia, that the plaintiffs failed to exhaust their administrative remedies prior to filing the lawsuit. Id. at *2. The plaintiffs argued that “there were no administrative remedies available to them as a result of the [detention center's] custom or policy of preventing or thwarting inmates from utilizing administrative remedies.” Id. The Court granted summary judgment in favor of the defendants against two of the plaintiffs, but denied summary judgment as to one of the plaintiff's claims. Id. at *4. The Court explained,
In his deposition, [Plaintiff] Ashley testified that he filed a grievance relating to the alleged tasering of him. Ashley further testified that he did not receive any response to his grievance. [Defendant] has not submitted any evidence to counter Ashley's testimony. Accordingly, the Court finds that based upon Ashley's testimony, Ashley's administrative remedy was unavailable and, thus, he exhausted his administrative remedies for purposes of § 1997e(a). See Jernigan, 304 F.3d at 1032 (“the failure to respond to a grievance within the time limits contained in the grievance policy renders an administrative remedy unavailable.”).Id. (additional citations omitted).
Understandably, Plaintiff relies on Proctor to argue that because Cimarron failed to respond to his amended Grievance, his administrative remedies were unavailable. However, in reviewing Proctor's litigation history, the Court is aware that the administrative remedies process at issue therein differed from the procedure in the present case. Specifically, the procedure in Proctor provided that the inmate was to begin the administrative process by submitting a grievance to the Pod Officer. Inmate Handbook, Proctor v. Bd. of Cnty. Comm'rs of Pottawatomie, No. CIV-07-654-M (W.D. Okla. March 2, 2009), Doc. No. 30-2 at 35. If the Pod Officer did not satisfactorily resolve the issue, the inmate could request in writing to speak to the Shift Supervisor. Id. If the Shift Supervisor determined it was necessary, he or she would send the grievance to the Facility Commander for further review. Id. The Facility Commander had 72 hours to investigate the matter and respond to the inmate. Id. If the inmate was not satisfied with the resolution, they could appeal to the Executive Director. Id. At that point, the inmate had completed the applicable administrative process. Id.
Unlike the present case, the procedure in Proctor did not have an option for the inmate to proceed further if he did not receive a response to his grievance. Id. Thus, the Court concluded that once facility officials failed to respond, the plaintiff had exhausted his administrative remedies. Proctor, 2010 WL 711198, at *4.
Similarly, in Adams, the plaintiff brought suit under § 1983 alleging his constitutional rights were violated by the defendants while he was confined in a state facility. Adams, 591 F.Supp.2d at 1194. The defendants sought summary judgment arguing, inter alia, that the plaintiff failed to exhaust his administrative remedies prior to initiating the lawsuit. Id. at 1197. The Court summarized the applicable administrative process as follows:
Pursuant to these procedures, an inmate must first attempt to resolve issues by talking informally with an appropriate employee. If the issue is not resolved through that communication, the inmate may then submit a Request to Staff. The Request to Staff must be submitted within fifteen calendar days of the incident. The Request to Staff must be responded to in writing within five days of receipt. If the matter is not resolved informally through the verbal or Request to Staff process, the inmate may then submit an Inmate Grievance Form. The formal grievance must be submitted within fifteen days of the incident or the receipt of the answer to the Request to Staff. The grievance must be answered and returned to the prisoner within fifteen working days of receipt of the grievance. An appeal of the grievance may be taken to the Jail Administrator. The ruling of the Jail Administrator is final and completes the administrative process.Id. at 1198-99 (citations omitted).
In finding that the plaintiff had completed the administrative process and/or was excused therefrom, the Court explained:
In responding to Defendants' Motion, Plaintiff states that he never received responses to the grievances submitted. The Request to Staff and Inmate Grievance relied upon by Defendants support Plaintiff's allegation. Moreover, none of the evidence submitted by Defendants demonstrates that Plaintiff ever received responses to his informal and formal attempts to exhaust administrative remedies.... A failure to respond to a grievance may be grounds for finding that an administrative remedy is unavailable, see Jernigan, 304 F.3d at 1032, or if prison officials fail to respond within the time limits provided by the grievance procedure the prisoner may be deemed to have exhausted available administrative remedies, see Whitington v. Ortiz, 472 F.3d 804, 807-808 (10th Cir. 2007). Based on the record before the Court, disputed issues of material facts exist that preclude
summary judgment in favor of Defendants Bouchard and Schmidt for Plaintiff's alleged failure to exhaust administrative remedies regarding their use of force on June 15, 2007.Id. at 1199-1200 (footnote omitted). Similar to Proctor and unlike the present case, the applicable process in Adams did not have an option for the inmate to proceed further if he did not receive a response to his grievance. Adams, 591 F.Supp.2d at 1198-99. Thus, the Court concluded that once the facility officials failed to respond, the plaintiff had exhausted his administrative remedies. Id. at 1199-1200.
In the present case, Plaintiff does not dispute that he did not file an appeal with the ARA after Cimarron officials failed to respond to his Grievance. However, ODOC's administrative process specifically provides for this action. Doc. No. 37-2 at 12. Indubitably, there are cases, such as this one, in which this final step in the process seems counterintuitive. The administrative process is intended to “obviate some litigation when the administrative tribunal can award at least some of the relief sought[.]” Booth v. Churner, 532 U.S. 731, 736 (2001). In situations in which it appears prison officials have already acted as a hindrance to the plaintiff's attempts to exhaust, this intention is not only frustrated but openly disregarded. Requiring Plaintiff to file an appeal based solely on another seeming obstacle, i.e. a failure to respond, seems a further frustration of this intention.
Nevertheless, in spite of the apparent obstacles in speaking with his attorney prior to filing a grievance, Plaintiff was able to do so. Based on the parties' briefing, it is clear Plaintiff never attempted to file an appeal after officials failed to respond to his Grievance. Thus, there is no basis for the Court to conclude the process was unavailable at that point.
The Court recognizes there were extenuating circumstances at play at the time Plaintiff was utilizing the grievance process. The COVID pandemic and its resulting complications undoubtedly affected all parties' ability to both utilize and respond appropriately within the grievance process. Cimarron was also closing and inmates were being transferred to different facilities. Indeed, it was Plaintiff's understanding that these two circumstances were the reasons he did not receive a response. Nevertheless, the Supreme Court has been exceedingly clear that the PLRA's exhaustion requirement is mandatory and that courts cannot make exceptions to this requirement based on extenuating or special circumstances. Ross, 578 U.S. at 639 (holding that the only exception to the PLRA's exhaustion requirement is unavailability, explaining “the PLRA's text suggests no limits on an inmate's obligation to exhaust-irrespective of any ‘special circumstances.' And that mandatory language means a court may not excuse a failure to exhaust, even to take such circumstances into account.”).
Plaintiff's failure to exhaust administrative remedies is fatal to federal judicial review of his claims. Woodford, 548 U.S. at 90-92. Accordingly, the undersigned recommends Defendants' Motion be granted. See Calbart v. Sauer, 504 Fed.Appx. 778, 784 (10th Cir. 2012) (affirming the district court's granting of summary judgment in favor of the defendants against the plaintiff's § 1983 claims based on the plaintiff's failure to exhaust administrative remedies).
RECOMMENDATION
Based on the foregoing findings, it is recommended Defendants' Motion for Summary Judgment (Doc. No. 37) be GRANTED and judgment be entered in Defendants' favor based upon Plaintiff's failure to exhaust his administrative remedies. Plaintiff is advised of the right to file an objection to this Report and Recommendation with the Clerk of this Court by February 21st , 2022, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. The failure to timely object to this Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.”).
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motion not specifically addressed herein is denied.