Free Order Dismissing Case - District Court of Arizona - Arizona

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

Eugene Anthony Acton, Plaintiff, vs. Robert Jones, et al., Defendants.

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2:04-cv-675 JWS

ORDER AND OPINION [Re: Motion to Dismiss Second Amended Complaint, Dkt. 22]

I. MOTION PRESENTED At docket 22, defendants move to dismiss the Second Amended Complaint. Defendants contend that plaintiff Acton failed to exhaust his administrative remedies with respect to the claim in Count I which is therefore barred by 42 U.S.C. § 1997e(a). They contend that plaintiff Acton failed to give the notice required by Arizona state law which forecloses Count II. They also urge that as to defendant Buffington the claim in Count II is barred, because such a claim lies only against the State of Arizona. The motion has been fully briefed. Oral argument would not assist the court. The parties have submitted evidence outside the pleadings which the court has considered, so the motion to dismiss will be treated as a motion for summary judgment.1

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FED. R. CIV. P. 12(c).

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At docket 23, pursuant to the court's standard practice in such cases, Magistrate Judge Edmonds issued an order advising plaintiff of the time for and information on how to respond to defendants' motion. II. RULE 56 STANDARD Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment should be granted if there is no genuine dispute as to material facts and if the moving party is entitled to judgment as a matter of law. The moving party has the burden of showing that there is no genuine dispute as to material fact.2 The moving party need not present evidence; it need only point out the lack of any genuine dispute as to material fact.3 Once the moving party has met this burden, the non-moving party must set forth evidence of specific facts showing the existence of a genuine issue for trial.4 All evidence presented by the non-movant must be believed for purposes of summary judgment, and all justifiable inferences must be drawn in favor of the non-movant.5 However, the non-moving party may not rest upon mere allegations or denials, but must show that there is sufficient evidence supporting the claimed factual dispute to require a fact-finder to resolve the parties' differing versions of the truth at trial.6

2

Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 Celotex, 477 U.S. at 323-325.

(1986).
3

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-9, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).
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4

Anderson, 477 U.S. at 255. Id., 477 U.S. at 248-9.

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III. BACKGROUND Plaintiff, who at all relevant times was an inmate in the custody of the Arizona Department of Corrections, advances two claims in this litigation. The claim in Count I of his Second Amended Complaint7 is that defendants violated his rights under the Eighth Amendment by denying him treatment for a broken wrist and subsequently providing improper treatment. Count II sets forth a claim based on the allegation that defendant Susan Buffington committed medical malpractice while treating plaintiff. This court has jurisdiction in this case pursuant to 28 U.S.C. § 1331 with respect to Count I and 28 U.S.C. § 1367 with respect to Count II. IV. DISCUSSION The law is clear that in order to pursue the claim pled in Count I, plaintiff must comply with the notice provisions of 42 U.S.C. § 1997(e).8 Plaintiff maintains that he did in fact exhaust his remedy. The record is otherwise. It is clear that Acton did not fully exhaust the administrative remedies available because the matter did not reach the Director's level. Citing a decision from the Fifth Circuit which antedates the enactment of § 1997e(a),9 Acton argues that his failure to exhaust should be excused because he attempted in good faith to exhaust the process. However, where, as here, there is no evidence that the prisoner could not have proceeded further, even if only by resubmitting his grievance with a request that it be taken to the next level, the court

7

Doc. 11. Porter v. Nussle, 534 U.S. 516, 524 (2002). Rocky v. Vittore, 813 F.2d 734, 736 (5th Cir. 1987)

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9

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must conclude that an exception to the clear statutory requirement cannot be made. Defendants are entitled to judgment as a matter of law on Count I. Turning to Count II, again there is no real dispute about the legal principles which control defendants' principal contention. Acton must have timely presented a notice of claim to the state in order to maintain his malpractice claim.10 In his opposition, Acton has stated that he did submit a notice of claim and refers to a form attached as exhibit B which purports to be signed and dated on April 17, 2003.11 The statement that the form was actually submitted is not supported by an affidavit or declaration from Acton or whoever may have submitted it on his behalf. In their reply,12 defendants present an affidavit from Maureen Riordan-Asahi, who avers that her job includes recording the notices of claim served on the Arizona Attorney General, and that upon examination of the logs of such claims, she finds that no notice of claim was filed by Acton at any time from October 12, 2002 through the date of her affidavit, July 28, 2005.13 Even without an affidavit, the court can infer from Exhibit B that Acton did fill out a notice of claim form. However, Acton's statement in his memorandum that it was submitted is not under oath and does not constitute evidence that the form was actually submitted as required by law. Nor, even if the court could somehow accept what is said in the memorandum as fact, is there anything about when the notice was submitted to the attorney general. Ms. Asahi's affidavit, on the other hand is under oath and
10

A.R.S. § 12-821.01A. Doc. 31 at p. 5. Doc. 32 Exh. 1 to doc. 32.

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constitutes the only evidence with respect to whether the notice was actually sent to the Attorney General. It shows that no such notice was submitted at any time between October 22, 2003 (the date of the underlying injury) and July 28, 2005 (a date well after the lawsuit was commenced, and long after the time for presenting the notice of claim had expired). The undisputed facts in the record show that defendants are entitled to judgment as a matter of law on Count II, because Acton failed to give the notice required by state law. Given the court's disposition of the claim in Count II, it is unnecessary to consider the alternative argument concerning the viability of a claim against defendant Buffington. IV. CONCLUSION For the reasons above, the motion at docket 22 is GRANTED. The Clerk will please enter judgment that plaintiff take nothing from defendants. DATED at Anchorage, Alaska, this 28th day of March 2006.

/s/ JOHN W. SEDWICK UNITED STATES DISTRICT JUDGE

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