Free Motion to Dismiss - District Court of Colorado - Colorado

Case 1:01-cv-02299-PSF-BNB

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-2299-PSF-BNB F. DAVID SLUSHER, Plaintiff, v. JOHN W. SUTHERS, et al., Defendants. STATE DEFENDANTS' MOTION TO DISMISS Defendants Joseph McGarry, Judy Bullard, Delayne Tornowski, Richard Howard, Trevor Williams, Don Lawson, Phillis Griswould, Jim Day, Tamara Williams, Teddy Laurence, Edd C. Gillespie, John W. Suthers, Al Estep, Shane Johnson, Tom O'Brien, and John Reilly, the State Defendants, by and through their attorney Edward T. Farry, Jr., of FARRY and RECTOR, L.L.P., hereby move to dismiss the amended complaint. This motion seeks dismissal of the amended complaint based on plaintiff's failure to exhaust his administrative remedies pursuant to the Prison Litigation Reform Act of 1995 (PLRA), 110 Stat. 1321-73, as amended, 42 U.S.C. § 1997e(a). The plaintiff has failed to meet the pleading, total exhaustion and other requirements established by PLRA as interpreted by the Tenth Circuit in Ross v. County of Bernalillo, 365 F.3d 1181 (10th Cir. 2004), and Steele v. Federal Bureau of Prisons, 355 F.3d 1204 (10th Cir. 2003). Because this motion is filed after the State Defendants filed an answer to the amended complaint, the motion is made pursuant to 1

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Fed.R.Civ.P. 12(c) and (h)(2).1 Standard of Review: Rule 12 Motions For the purposes of a motion to dismiss a court should only dismiss the claim "when it appears that the plaintiff can prove no set of facts in support of the claims that would entitle him to relief, accepting the well pleaded allegations of the complaint as true and construing them in the light most favorable to the plaintiff." Dubbs v.Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (quoting Yoder v. Honeywell, Inc., 104F.3d 1215, 1224 [10th Cir. 1997]). "`The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff' complaint alone is legally sufficient to s state a claim for which relief may be granted.'" Id. (quoting Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 [10th Cir.1999]). Extrinsic Materials Plaintiff attaches documents such as grievances to his amended complaint. These documents are central to plaintiff's claims. All documents attached to the amended complaint as well as any documents attached to this motion to dismiss may be considered by the Court without converting this 12(b) motion to dismiss to a motion for summary judgment. "We agree with our sister circuits that if a defendant attaches to a 12(b)(6) motion materials referred to by the plaintiff and central to his

See, Steele, supra, 1212, n. 4: "Normally, the defendant should raise the exhaustion issue as early as possible in the litigation. If, however, the defendant submits a motion to dismiss after filing an answer, the motion should be treated as a motion for judgment on the pleadings. Lowe v. Town of Fairland, 143 F.3d 1378, 1381 n. 5 (10th Cir. 1998). . . ." 2

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claim, the court has discretion to consider such materials...," without converting the Motion to Dismiss to a Motion for Summary Judgment. Prager v. LaFaver,180 F. 3d 1185 (10th Cir 1999) at page 1189. The Prager Court considered 10th Circuit precedent and surveyed other circuits and concluded: documents are not "outside the pleadings" if they are "referred to in the plaintiff' complaint and are central to his claim" citing Wright v. Associated Ins. Cos. Inc., 29 s F.3d 1244, 1248 (7th Cir. 1994); "[D]ocuments attached to a motion to dismiss [that] are referred to in the plaintiff' complaint and . . . central to his claim . . . may be considered by a district s court ruling on the motion to dismiss.") citing Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994); "[W]e hold that documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered in ruling on a 12(b)(6) motion to dismiss." citing Pension Benefit Guar. Corp. v. White Consol. Indus. Inc., 998 F.2d 1192, 1196 (3d Cir.1993); and "We now hold that a court may consider an undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff' claims are based on that document." citing Cortec Indus., Inc. s v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991). All quotes are internal to Prager and come from page 1189. Standard of Review: PLRA Motions The PLRA provides that "[n]o action shall be brought with respect to prison conditions under [s]ection 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). The term "civil action with respect to prison conditions" is 3

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defined by the United States Code as "any civil proceeding arising under Federal law with respect to the conditions of confinement or the affects of actions by government officials on the lives of persons confined in prison . . ." 18 U.S.C. § 3626(g)(2). The statutory exhaustion requirement of section 1997e is mandatory and the district court is not authorized to dispense with this requirement. Beaudry v. Corrections Corp. of Am., 331 F.3d 1164, 1167 n.5 (10th Cir. 2003). The exhaustion requirement is broad and applies to all aspects of prison life. Porter v. Nussle, 534 U.S. 516, 532 (2002). "[T]he PLRA' exhaustion requirement applies to all inmate s suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Id. There are no exceptions, including futility, to the exhaustion requirement in section 1997e. Booth v. Churner, 532 U.S. 731, 741 n.6 (2001).Section 1997e "gives prisons and their officials a valuable entitlement ­ the right not to face a decision on the merits." Steele, 1211­12. Additionally, the Tenth Circuit imposes a "total exhaustion" requirement under PLRA. Ross, supra, 1188­89. The presence of unexhausted claims in plaintiff' complaint requires the s district court to dismiss plaintiff' action in its entirety without prejudice. Id. at 1189. s Plaintiff's Claims Against Defendants Plaintiff brings claims against 25 persons in his amended complaint. Plaintiff admits that he has not named many of the individuals against whom he has filed suit in any grievance. Nor, for that matter, has plaintiff grieved the conduct of many of the individuals that he now sues. Plaintiff's Claim I Plaintiff's claim I is an Eighth Amendment cruel and unusual punishment claim alleging 4

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the deliberate indifference of prison officials to his claimed serious medical needs. The claim alleges the deliberate withholding of a certain medication that was "prescribed" by physicians. The "withholding" was as a consequence of a change in the manner and mode of delivering overthe-counter medications to prisoners. That change was announced by memo, dated April 27, 2000, and signed by John Suthers as the Executive Director of the Colorado Department of Corrections (CDOC). On May 31, 2000, plaintiff wrote to defendant John Suthers to inform him that medical personnel at the Limon Correctional Facility (LCF) were acting in "direct contradiction to your instructions" by not giving him his sought medication. Slusher's claim against John Suthers is that Mr. Suthers, upon receipt of plaintiff's correspondence, did not take "appropriate" action to remedy the "misinterpretation" of his memo by medical staff. [Deposition of Floyd Slusher, Exhibit A, see colloquy page 149 - 154] In like manner, Slusher's claims against Dr. Joseph McGarry and Don Lawson are that they received correspondence from Mr. Slusher concerning the misinterpretation of the new policy and that they did not remedy the misinterpretation. [Deposition of Floyd Slusher, Exhibit B, see colloquy page 169 - 170]. Undisputed Facts (1) Plaintiff did not file a grievance complaining of the conduct of John Suthers which

is complained of in Claim I of plaintiff's complaint. "Q. A. . . . And you admit that concerning the conduct of Mr. Suthers, of which you have That is true." [Exhibit A, page 154, lines 20 - 24]

now complained in this litigation, you did not file a grievance concerning that conduct?

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(2)

Plaintiff Slusher did not file a grievance concerning the conduct of either Dr.

McGarry or Don Lawson. "Q. A. Q. A. Q. And that thereafter, they, the three of them, McGarry, Lawson and Suthers, did not Yes. That's what you're complaining about against the three of them in this litigation? Yes. Did you file a grievance concerning that conduct on the part of each of them. A. [Exhibit B, page

correct that misinterpretation, . . .

Not separate from the grievance that I filed on the entire situation." 170, lines 5 - 15] Claim III

Plaintiff's claim III is another Eighth Amendment cruel and unusual punishment claim alleging the deliberate indifference of prison officials to his claimed serious medical needs. His first claim alleges the deliberate withholding of a certain medication, but his third claim alleges the deliberate withholding of "physician-prescribed treatment." His third claim exists as to Defendants Judy Bullard, Delayne Tornowski, Phillis Griswould, Jim Day, Teddy Laurence, Al Estep, Shane Johnson, Tom O'Brien, and John Reilly. Plaintiff sues defendant Captain Johnson in claim III. Plaintiff admits that he did not name Captain in his grievance and that he knew Captain Johnson's name at the time that he did file a grievance. [Deposition of plaintiff Slusher, September 9, 2005: Exhibit C, page 33; lines 1 ­ 17.] The same is true for defendants Messrs. Tornowski, DeCesaro, Day, Williams, Estep, Reilly, and Judy Bullard. Plaintiff has sued all of these individuals for alleged Eighth Amendment deliberate 6

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indifference to a serious medical condition pursuant to 42 U.S.C. § 1983. Yet he did not file grievances against any of these individuals. [Deposition of plaintiff Slusher, September 9, 2005: Exhibit D, pages 35 - 43] Failure to Name Target Defendants in Grievances The State Defendants hereby assert that plaintiff cannot exhaust his administrative remedy as to the above defendants without naming them in grievances. The Tenth Circuit has not decided whether section1997e requires an inmate to name each potential defendant in the grievance procedure. The Sixth, Seventh, and Eleventh Circuits are somewhat split on this issue. See Strong v. David, 297 F.3d 646,649­50 (7th Cir. 2002); Curry v. Scott, 249 F.3d 493, 505 (6th Cir. 2001); and Brown v. Sikes, 212F.3d 1205, 1207­09 (11th Cir. 2000). In Curry, the Sixth Circuit determined that section 1997e requires an inmate to specifically name each individual he intends to sue in his grievance. Curry, 249 F.3d at 505. The plaintiff in that case did not identify the potential defendant by name or in any discernable manner. Id. The plaintiff there argued that "an investigation into [the defendant's] role in the incident would have flowed naturally from, or been encompassed within, even the most general grievance.. . to prison authorities." Id. In reaching its conclusion, the Sixth Circuit reasoned that if a plaintiff did not mention the potential defendant by name, the prison did not know they had a specific grievance and had no reason to pursue any claim or disciplinary action against that potential defendant. Id. In Brown, the Eleventh Circuit determined that section 1997e requires inmates to identify all who are known to have injured him and to provide as much relevant information as 7

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reasonably possible in their grievances. Brown, 212 F.3d at 1208. The Brown court held that an inmate cannot "provide that which he does not have; he cannot identify those whose identities are unknown to him." Id. Finally, in Strong, the Seventh Circuit found in interpreting section 1997e, courts must look to the prison grievance system itself to determine what an administrative grievance must contain. Strong, 297 F.3d at 649­50. The Seventh Circuit held that where the administrative rules are silent on the issue, a grievance is sufficient if it alerts the prison to the nature of the wrong for which the inmate seeks redress. Id. at 650. The Colorado Department of Corrections provides a grievance procedure to inmates in its administrative regulations. Colorado Department of Corrections [CDOC], Administrative Regulations 850­04 [The regulation can be found on line at http://www.doc.state.co.us/admin_reg/PDFs/0850_04.pdf] Upon entry into CDOC, each

inmate receives notification and oral explanation of this procedure. Id. The grievance procedure is very detailed with explicit steps each inmate must follow. Id. The grievance procedure states that "[t]he grievance shall be legible and all identifying data shall be properly completed. . . . The grievance shall clearly state the basis for the grievance and the relief requested in the space provided on the form." Id. Of course here, plaintiff did not include all identifying data in his grievances because he did not identify the defendants named above directly, nor did he provide sufficient information to put these defendants on notice regarding his claim. Thus, plaintiff' complaint fails even under s the Seventh Circuit approach. Accordingly, plaintiff did not exhaust his administrative remedies 8

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with respect to defendants Tornowski, DeCesaro, Day, Williams, Estep, Reilly, and Bullard. Total Exhaustion The State Defendants contend that because plaintiff did not exhaust his remedies as to the claims against some of the Defendants, the claims against the remaining Defendants must be dismissed. As noted above, the Tenth Circuit has determined that the PLRA contains a total exhaustion requirement. Ross, 365 F.3d at 1188­89. The Tenth Circuit reasoned that the policies of the PLRA strongly support a total exhaustion requirement. Id. at 1190. Specifically, the Tenth Circuit determined that, in the PLRA context, a total exhaustion rule, would encourage prisoners to make full use of the inmate grievance procedures and thus give prison officials the first opportunity to resolve prisoner complaints . . .. It would facilitate the creation of an administrative record that would ultimately assist federal courts in addressing the prisoner' claims. . . . Moreover, it would relieve district courts of s the duty to determine whether certain exhausted claims are severable from other unexhausted claims that they are required to dismiss. . . .Prisoners suing under [section] 1983, no less than habeas prisoners, can be expected to adhere to this straightforward exhaustion requirement. . . .Finally, the total exhaustion rule will not increase the burden on federal courts but will instead tend to avoid at least some piecemeal litigation. Id. at 1190. Here, plaintiff did not exhaust his administrative remedies as to all defendants, thus, the court must dismiss the entire action without prejudice. Id. at 1189; see Mohamed v. N.L. Conner, No. 03­3197, 2004 U.S. Dist. WL 1047925, at *5­6 (D. Kan. May 7, 2004) (holding that if "plaintiff has not exhausted administrative remedies as to all defendants, the [c]ourt must dismiss the entire action without prejudice."). To allow plaintiff to proceed with his claims against defendants in

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inefficient. As the Tenth Circuit noted, "[u]nder the total exhaustion rule `both the courts and the prisoners should benefit, for as a result the district court will be more likely to review all of the prisoner's claims in a single proceeding, thus providing fora more focused and thorough review.'" Ross, 365 F.3d at 1190 (quoting Rose v. Lundy, 455 U.S.509, 520 [1982]). Any other interpretation of Ross would encourage piecemeal litigation and would require the district court to determine whether certain exhausted claims are severable from other unexhausted claims. This is inapposite to the policy of the PLRA and the Tenth Circuit' decision in Ross. Plaintiff is s not left without remedy. Plaintiff has the option to file a complaint containing only exhausted claims. Accordingly, plaintiff's claims are not properly before the court and should be dismissed. WHEREFORE, State Defendants respectfully request that the court dismiss the amended complaint. Respectfully submitted September 30, 2005. FARRY and RECTOR, L.L.P. s/ Edward T. Farry Edward T. Farry, Jr. #8273 Attorney for State Defendants 131 South Weber Street Colorado Springs, CO 80903 Phone Number (719) 578-2000 Facsimile Number (719) 578-1794 Original copy signed by Edward T. Farry is on file with Farry and Rector, L.L.P.

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CERTIFICATE OF SERVICE I hereby certify that on September 30, 2005, a copy of the foregoing Motion to Dismiss as electronically filed with the Clerk of Court using CM/ECF system, which will send notification to the following, and served on each of the following at the indicated address by first class U.S. mail, postage prepaid: F. David Slusher DOC #44260 Fremont Correctional Facility P.O. Box 999 Canon City, CO 81215 Kelly R. Moss Original Copy signed by Kelly R. Moss is on file with Farry and Rector, L.L.P.

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