Opinion
SA-18-CA-328-FB(HJB)
04-15-2021
JAY B. VINEYARD, Plaintiff, v. UNIVERSITY HEALTH SYSTEMS "UHS"; DR. JESSICA YAO, P.A. Coordinator of Infirmary, UHS; OLGA ALI, Nurse Practitioner, UHS; SANDRA WRIGHT, Nurse, UHS; HOWARD HUBER, P.A., UHS; and BRYAN ALSIP, Chief Medical Officer, UHS-SA; Defendants.
SUPPLEMENTAL REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
HENRY J. BEMPORAD, UNITED STATES DISTRICT JUDGE
To the Honorable Fred Biery, United States District Judge:
This Supplemental Report and Recommendation concerns the status of the above case, which was re-referred to the undersigned on February 9, 2021, pursuant to 28 U.S.C. § 636(b). (See Docket Entry 96.) The following matters are currently pending in this case: (1) Plaintiffs 2ndMotion for Additional Material(s) and Extension of Time to Prepare (Docket Entry 93); (2) Plaintiffs objections to the undersigned's recommendation (Docket Entry 97); and (3) Plaintiffs Motion for Declaration of Judgment on Ineffective Assistance by Counsel Leslie Sachanowicz (Docket Entry 100). For the reasons set out below, I recommend that Plaintiffs objections (Docket Entry 97) be OVERRULED, and his motions (Docket Entries 93 and 100) be DENIED.
Additional background is set out in the undersigned's previous Report and Recommendation in this case. (See Docket Entry 74.)
Plaintiff filed this case pro se in 2018, alleging a number of violations of 42 U.S.C. § 1983. (See Docket Entries 1, 15.) Included among his claims was an allegation that a number of the named Defendants were deliberately indifferent to his various medical needs, particularly by delaying needed knee surgery. As this is the only claim still pending in the case, it is the only one addressed here.
Plaintiff alleges that he suffered a fractured tibia and ligament damage as a result of a vehicular accident. (Docket Entry 15, at 20.) At the hospital, he was given a brace for his knee and instructed not to walk or put any weight on his leg, and surgery on his knee was scheduled for August 9, 2017. (Id.) Despite the doctor's orders, Plaintiff alleges that an officer removed Plaintiff from the hospital within two hours of his release from the ICU, forced him to walk on his leg, and took him to Bexar County Adult Detention Center ("BCADC"). (Id.) There, Plaintiff was denied medication for 72 hours before being taken to the infirmary. (Id.) In the infirmary, Plaintiff was informed by Defendant Olga Ali that his upcoming surgeries had been cancelled due to security concerns. (Id.)
Plaintiff later complained to Defendant Dr. Jessica C. Yao about the delays in his knee surgery; she responded that he did not need the surgery. (Id. at 23.) Plaintiff persisted in seeking medical care for his knee, and he was seen by Defendant Howard Huber who conducted x-rays and determined that, although he had suffered damage to the tendons and ligaments of his knee that had healed incorrectly, the injuries would not require surgery to correct. (Id. at 23-24.) Huber ordered a brace for Plaintiffs knee, and the wheelchair he was previously provided was confiscated. (Id.) Plaintiff was subsequently transferred from BCADC custody to the Texas Department of Criminal Justice ("TDCJ"). (See Docket Entry 29, at 23-24.)
The District Court originally dismissed as frivolous all of Plaintiff s claims, including the claim regarding the delay in knee surgery. (Docket Entry 34.) Plaintiff appealed to the U.S. Court of Appeals for the Fifth Circuit (Docket Entry 38), which affirmed dismissal of all the claims except Plaintiffs claim of deliberate indifference regarding his delayed knee surgery. (Docket Entry 48, at 5.)
After remand, the undersigned appointed attorney Sachanowicz to represent Plaintiff, and ordered service on the Defendants allegedly involved in Plaintiffs deliberate-indifference claim. (Docket Entry 52, 55.) These Defendants moved for dismissal, or alternatively for summary judgment, alleging inter alia that Plaintiff had failed to exhaust administrative remedies on the deliberate-indifference, as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a). (See Docket Entry 60, at 1; Docket Entry 61, at 11; Docket Entry 62, at 16.) On November 5, 2020, the undersigned recommended that Plaintiffs claims be dismissed on PLRA exhaustion grounds. (Docket Entry 74.)
The District Court initially adopted the undersigned's recommendation on December 14, 2020 (see Docket Entry 85); on that same day, however, Plaintiff filed pro se motions to dismiss his court-appointed counsel and stay the case (see Docket Entries 88 and 89). The Court granted these pro se motions, dismissed Plaintiffs counsel, withdrew its order adopting the undersigned's recommendation, and extended the time for Plaintiff to object to the recommendation. (See Docket Entry 90.) The Court subsequently re-referred the matter to the undersigned for further consideration. (See Docket Entry 96.) Plaintiff has filed objections to the undersigned's recommendation, and a motion for additional time and discovery to show that administrative remedies were exhausted. (Docket Entries 93, 97.) He has also moved for a judgment that his appointed attorney provided ineffective assistance. (Docket Entry 100.)
II. Analysis.
This Supplemental Report and Recommendation first addresses Plaintiffs objections to the undersigned's recommendation and motion for additional materials and extension of time; it then addresses to Plaintiff's motion for a declaration of judgment on ineffective assistance.
A. Plaintiffs Objections and Request for Additional Time and Material.
Under the PLRA, an inmate seeking to challenge prison conditions must exhaust "such administrative remedies as are available" before challenging prison conditions in court. 42 U.S.C. § 1997e(a). The Supreme Court has adhered strictly to the requirement that a prisoner must exhaust his administrative remedies. See Ross v. Blake, 136 S.Ct. 1850, 1855 (2016). Courts have "zero discretion" to hear unexhausted claims. Valentine v. Collier, No. 20-20525, 2020 WL 6039993, at *3 (5th Cir. Oct. 13, 2020) (citing Jones v. Bock, 549 U.S. 199, 211 (2007)). To exhaust remedies, the prisoner must have "pursue[d] the grievance remedy to conclusion"- substantial compliance with administrative procedures is not enough. Bargher v. White, 928 F.3d 439, 447 (5th Cir. 2019).
Failure to exhaust administrative remedies is an affirmative defense. Jones, 549 U.S. at 216. The burden is therefore on the defendant to show failure to exhaust remedies, particularly when the defendant has all the information about plaintiff's administrative proceedings, as a prison system does. Torns v. Miss. Dep 't of Corr., 301 Fed.Appx. at 386, 390 (5th Cir. 2008) (per curiam).
In this case, Defendants have supported their exhaustion-of-remedies defense by providing documentary evidence to the Court, including the Bexar County Sheriffs Office Inmate Handbook. (See, e.g., Docket Entry 60-2.) The Handbook outlines a two-step process for handling inmate grievances. (Id. at 11.) At step one, the prisoner must file an original grievance within 72 hours of the incident of which he complains. (Id.) If the grievance is not resolved, the prisoner must proceed to step two, by filing an appeal to the response to the grievance within 72 hours of receipt. (Id.) Officials are required to reply to the appeal within 60 days. (Id.) As the handbook makes clear, an inmate fails to exhaust administrative remedies if he fails to follow the required grievance procedures. (Id.)
Defendants also provided affidavit evidence from the Bexar County Sherriffs Office custodian of records, showing that Plaintiff had filed only a single "step one" grievance regarding the delay in affording him knee surgery. (See, e.g., Docket Entry 60-3, at 2.) Although this grievance satisfied the first step of the administrative process, there is no evidence to show that Plaintiff appealed the response to his grievance, as required to meet the second step of the process. (See id.) In the absence of such evidence, the undersigned recommended dismissal of Plaintiff s deliberate-indifference claim, finding that Defendants had carried the burden to show that Plaintiff did not exhaust his administrative remedies. (Docket Entry 74, at 7-8.)
In objecting to this recommendation, has Plaintiff raised numerous allegations, including fraud and concealment by Defendants and bias by the undersigned. (See generally Docket Entry 97.) These allegations, however, do nothing to establish that Plaintiff exhausted the second, appeal step of his administrative remedies as to the claimed delay in providing him with knee surgery. Plaintiff did assert in his amended complaint that both steps of the grievance process were exhausted (Docket Entry 15, at 27.) But as the undersigned explained in his Report and Recommendation, when a moving party has presented evidence to support a request for summary judgment, the nonmoving party "cannot satisfy [his] burden with conclusory allegations [or] unsubstantiated assertions." (Docket Entry 74, at 5 (quoting Freeman v. Tex. Dep't of Crim. Just., 369 F.3d 854, 860 (5th Cir. 2004)). "[T]he opponent must do more than simply show that there is some metaphysical doubt as to the material facts." (Docket Entry 74, at 5 (quoting Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (citations omitted)).
Plaintiff also claims that the Court already has the documents showing exhaustion in the record. (Docket Entry 97, at 19.) Federal Rule of Civil Procedure 56 does not "impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment," Skotak v. Tenneco Resin, Inc., 953 F.2d 909, 915 n.7 (5th Cir. 1992); nevertheless, in light of Plaintiffs incarceration and pro se status, the Court has reviewed the record for proof of exhaustion of the surgery-delay claim. Contrary to Plaintiffs assertions, the evidence in the record confirms the affidavit of the Bexar County Sherriffs Office custodian of records that the only BCADC grievance concerning the delay in knee surgery is the "step one" grievance, submitted in November 2017, that both the custodian and Plaintiff have provided. (See Docket Entry 60-3; cf. Docket Entries 1 -1, at 18, 24.) One subsequent grievance does mention his knee ailment, but that grievance was presented to TDCJ Lopez Unit staff in June 2018, months after Plaintiff was no longer incarcerated at BCADC. (See Docket Entry 29, at 23-24.) Plainly, this document is not sufficient to exhaust administrative remedies at BCADC.
Plaintiff also complains that he has been denied discovery, particularly medical records, and that evidence has been concealed regarding his claims. (See Docket Entries 93, 97; see also Docket Entry 110, at 2.) However, the exhaustion-of-remedies defense is not dependent on medical records, but instead on the written grievances presented to the BCADC officials. (See Docket Entry 60-2, at 11 (setting out grievance filing requirements). On that matter, the custodian of records has provided a sworn statement indicating that only one relevant grievance was filed; Plaintiffs conclusory allegations of concealment does not raise a genuine dispute on this issue.
For all these reasons, the Court should overrule Plaintiffs objections to the undersigned's Report and Recommendation, and deny his request for additional time and discovery.
B. Plaintiffs Ineffective Assistance Claim.
Plaintiff complains of the representation he received from attorney Sachanowicz, who was appointed by the undersigned to represent him after his case was remanded by the Court of Appeals. (See Docket Entry 55.) Plaintiff frames these claims in terms of "ineffective assistance" (See Docket Entry 97, at 12; Docket Entry 100.) However, such claims are not cognizable in this civil case: the Sixth Amendment requirement of effective assistance of counsel applies only to criminal, not civil proceedings. Wanzer v. Gloor, 691 Fed.Appx. 191, 192 (5th Cir. 2017) (citing Sanchez v. United States Postal Serv., 785 F.2d 1236, 1237 (5th Cir. 1986)).
Even if the Sixth Amendment requirement did apply to this case, Plaintiffs ineffective-assistance claim would fail. Any such claim requires a showing of prejudice. See Strickland v. Washington, 466 U.S. 668, 687 (1984). To meet this requirement, a party "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Nelson v. Davis, 952 F.3d 651, 659 (5th Cir. 2020). A "reasonable probability" is a probability "sufficient to undermine confidence in the outcome." Id. (quoting Strickland, 466 U.S. at 694). In this case, Plaintiff's failure to exhaust administrative remedies bars his remaining § 1983 claim under the PLRA, and requires dismissal. Accordingly, even if the ineffective-assistance doctrine were applicable, Plaintiff could not meet the prejudice prong of such a claim.
III. Conclusion.
Based on the foregoing, I recommend that Plaintiffs objections to my previous Report and Recommendation (Docket Entry 97) be OVERRULED, and that Plaintiffs 2nd Motion for Additional Material(s) and Extension of Time to Prepare (Docket Entry 93) and his Motion for Declaration of Judgment on Ineffective Assistance by Counsel Leslie Sachanowicz (Docket Entry 100) be DENIED.
IV. Instructions for Service and Notice of Right to Object/Appeal.
The United States District Clerk shall serve a copy of this Report and Recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a "filing user" with the clerk of court, or (2) by mailing a copy to those not registered by certified mail, return receipt requested. Written objections to this report and recommendation must be filed within fourteen (14) days after being served with a copy of same, unless this time period is modified by the district court. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The party shall file the objections with the clerk of the court, and serve the objections on all other parties. A party filing objections must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusive or general objections. A party's failure to file written objections to the proposed findings, conclusions and recommendations contained in this report shall bar the party from a de novo determination by the district court. Thomas v. Am, 474 U.S. 140, 149-52 (1985); Acuna v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to file timely written objections to the proposed findings, conclusions and recommendations contained in this Report and Recommendation shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).