Free Order on Motion to Dismiss Case - District Court of Arizona - Arizona

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

TOMMY LAWRENCE, Plaintiff, vs. DR. JEFFREY A. SHARP Defendant.

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CIV-04-456 PHX JWS ORDER FROM CHAMBERS [Re: Motions at Docket 10 and 12]

I. MOTIONS PRESENTED At docket 10, defendant Dr. Jeffrey A. Sharp moves to dismiss Count I of plaintiff's second amended complaint. At docket 12, pro se plaintiff Tommy Lawrence opposes defendant's motion to dismiss. Plaintiff labels his opposition as a "Motion to Deny

Defendant's Motion to Dismiss," and the clerk's office is tracking the document filed at docket 12 as a separate motion. However, the document at docket 12 is not a motion but simply an opposition to defendant's motion to dismiss and will be treated by the court as such. At docket 15, plaintiff has filed a document that he labels as a "Reply in Support of Plaintiff's Motion to Uphold Plaintiff's Second Amended Complaint." Because the court has determined that plaintiff's "motion" at docket 12 is not actually a motion, plaintiff was not

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entitled to file a reply. However, because defendant has not objected to the filing of this improper reply, the court, in its discretion, will consider plaintiff's submission at docket 15 as supplemental briefing. II. BACKGROUND This is a Section 1983 case brought by pro se plaintiff Tommy Lawrence, who is an inmate confined in the custody of the Arizona Department of Corrections (the "ADC"). Defendant is an ADC doctor, who, on November 1, 2003, removed a bullet from plaintiff's thigh. Plaintiff alleges that he thereafter contracted a severe infection for which medication was not promptly provided.1 Plaintiff further alleges that as a result of this incident he has "suffered ... severe mental anguish, defect of physical condition, and [is] partially disabled."2 In Count I of his second amended complaint, plaintiff alleges that his Eighth Amendment rights were violated because defendant acted with deliberate indifference to his medical needs.3 Plaintiff has sued defendant in both his individual capacity and his official capacity.4 Plaintiff seeks money damages in the amount of one million dollars.5 Plaintiff alleges that he has exhausted his administrative remedies as to

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Doc. 7 at 4-A. Id. at 4. Id. at 2. Id. at 2. Id. at 7.

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Count I.6 Plaintiff further alleges that "[e]ven though [he] exhausted remedies exhaustion is futile and defendant[] [is] not competent to resolve."7 Defendant now moves to dismiss Count I of plaintiff's second amended complaint on the sole ground that plaintiff has failed to exhaust his administrative remedies as to Count I.8 III. DISCUSSION As an initial matter, plaintiff contends that the question before the court "is whether the allegations of plaintiff's complaint are sufficient to permit a jury to find that the medical defendant's conduct amounted to a deliberate indifference to serious medical needs."9 This contention is not correct. The question before the court is not whether plaintiff has sufficiently stated a claim for relief, but whether plaintiff exhausted his available administrative remedies such that he can even bring a Section 1983 claim against defendant. The Prison Litigation Reform Act of 1996 (the "PLRA") provides that "[n]o action shall be brought with respect to prison conditions under section 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."10 "[T]he PLRA's

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Id. at 4. Id.

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Plaintiff alleged two counts in his second amended complaint, but Count II has already been dismissed. See doc. 8.
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Doc. 12 at 2. 42 U.S.C. § 1997e(a).

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exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes...."11 The "exhaustion requirement is mandatory."12 In the Ninth Circuit, a motion to dismiss based on the failure to exhaust administrative remedies is "treated as a matter in abatement, which is subject to an unenumerated Rule 12(b) motion...."13 "In deciding a motion to dismiss for a failure to exhaust nonjudicial remedies, the court may look beyond the pleadings and decide disputed issues of fact."14 "If the district court concludes that the prisoner has not exhausted nonjudicial remedies, the proper remedy is dismissal of the claim without prejudice."15 Defendant has the burden of proving that plaintiff failed to exhaust his available administrative remedies.16 The ADC's grievance process for inmate complaints is set forth in Department Order 802 ("DO 802").17 DO 802 contains a specific process for medical grievances.18 An inmate initiates the medical grievance process by submitting an inmate letter to his

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Porter v. Nussle, 534 U.S. 516, 532 (2002). McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002). Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). Id. at 1119-1120. Id. at 1120. Ngo v. Woodford, 403 F.3d 620, 625 (9th Cir. 2005).

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A copy of DO 802 is attached as ex. 1 to the Affidavit of Dr. James Baird, which is appended to doc. 10.
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DO 802.11.

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assigned COIII.19 The COIII has ten days in which to investigate and respond to the inmate letter20 and is directed to "contact the appropriate medical staff for response."21 If the inmate is not satisfied with the results of the informal resolution process, he may file a formal grievance to a designated Grievance Coordinator.22 The Grievance Coordinator "shall forward grievances of medical issues to the Facility Health Administrator."23 The Facility Health Administrator has 30 days in which to respond to the inmate's grievance.24 If the inmate is not satisfied with the Facility Health Administrator's response, he may appeal to the Director of the ADC.25 The Director has thirty days in which to respond to the inmate's complaint.26 The Director's decision is final and exhausts the inmate's administrative remedies for a medical grievance.27 At any level of the process, expiration of the time limit provided entitles the inmate to proceed to the next level of review, unless the inmate agrees to an extension in writing.28

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Id. at § 1.1.1 and DO 802.08 § 1.1. DO 802.08 § 1.3.2. DO 802.11 § 1.1.1.1. Id. at § 1.1.2. Id. at § 1.2.1. Id. Id. at § 1.3.1. Id. at § 1.3.3. Id. at § 1.3.5. DO 802.07 § 1.2.4.

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Defendant supports his argument that plaintiff has not exhausted his administrative remedies with the affidavit of Dr. James Baird, who is the Medical
Programs Manager for the ADC.29 Dr. Baird avers that Inmate Tommy Lawrence, ADC #177014, has not submitted any grievance appeals concerning medical deliberate indifference by Dr. Jeffrey Sharp. In fact, I have no record of any medical grievance appeal filed by Lawrence on any matter during any time period.[30]

The evidence submitted by plaintiff is not to the contrary. The evidence shows that plaintiff began writing inmate letters concerning his problem in late November of 2003. Plaintiff wrote inmate letters to defendant; Lyle A. Broadhead, an Associate Deputy Warden; D.W. Steward, the Deputy Warden; and Mr. Greeley, the Facility Health Administrator. However, none of these people were plaintiff's COIII. In order to initiate the medical grievance process, plaintiff was required to submit an inmate letter to his COIIII. Plaintiff finally did so on December 18, 2003.31 On December 26, 2003, COIII Rabideau responded to plaintiff's inmate letter and advised plaintiff that he was forwarding plaintiff's letter to the medical staff.32 There is no evidence in the record that the medical staff responded to plaintiff's December 18, 2003 inmate letter. According to the procedures set forth in DO 802, if an inmate's complaint remains unresolved after it has been informally raised to the COIII, the inmate has ten days in which to file an

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Baird Aff. at 1, ¶ 1, doc. 10. Id. at 2, ¶ 6. Inmate Letter to COIII Rabdua, unnumbered ex., doc. 15. Inmate Letter Response, unnumbered ex., doc. 15.

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Inmate Grievance form, which starts the formal grievance process.33 There is no evidence in the record that plaintiff ever filed an Inmate Grievance form. On February 18, 2004, plaintiff filed an appeal with the Grievance Coordinator.34 The Grievance Coordinator advised plaintiff that the grievance appeal cannot be processed. Your grievance was not received and your COIII has no record of an informal resolution attempt either. You must first submit an attempt to informally resolve to your assigned COIII. The time frames associated with DO 802 apply to your complaint.[35] Although the Grievance Coordinator's information regarding plaintiff's attempt to informally resolve his complaint was incorrect, plaintiff had never filed a formal grievance as required by DO 802 nor had plaintiff complied with the time frames established in DO 802 for filing a formal grievance. In sum, although plaintiff began the grievance process and wrote numerous inmate letters to persons at all levels of the prison facility, plaintiff failed to substantially comply with the ADC's procedures for medical grievances as set forth in DO 802. Plaintiff does not contend that he was inhibited by prison officials from utilizing the grievance system. The court thus concludes that plaintiff has not exhausted his available administrative remedies. Plaintiff argues that even if the court finds that he has not exhausted his administrative remedies, which it does, his Count I should not be dismissed because

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DO 802.11 § 1.1.2. Inmate Grievance Appeal, unnumbered ex., doc. 15. Id.

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exhaustion would be futile. This argument fails because there is no futility exception to the exhaustion requirement of the PLRA.36 Plaintiff next argues that he is not required to exhaust his administrative remedies because he is asserting a constitutional claim. There is no general exception to the exhaustion requirement of the PLRA for constitutional claims. For example, in Booth v. Churner, the United States Supreme Court held that an inmate seeking money damages for an alleged violation of his Eighth Amendment rights had to exhaust his administrative remedies prior to bringing a Section 1983 action.(fn 37 would go here and would now be id. at 734-35). Similarly here, plaintiff seeks money damages for an alleged violation of his Eighth Amendment rights. And, just as the plaintiff in Booth had to exhaust as to his constitutional claim, so too must plaintiff exhaust his available administrative remedies for his constitutional claim. Lastly, plaintiff appears to argue that the fact that he has sued defendant in both his official and his individual capacities somehow excuses plaintiff's failure to exhaust his available administrative remedies. This argument fails. Plaintiff may not bring a Section 1983 claim against defendant in his official capacity,37 and plaintiff is required to exhaust his administrative remedies as to his Section 1983 claim asserted against defendant in his individual capacity.

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Booth v. Churner, 532 U.S. 731, 741 n.6 (2001). See Jackson v. Carey, 353 F.3d 750, 758 (9th Cir. 2003).

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IV. CONCLUSION For the foregoing reasons, defendant's motion to dismiss at docket 10 is GRANTED. The clerk of court shall enter judgment dismissing plaintiff's second amended complaint without prejudice. DATED at Anchorage, Alaska, this 15th day of September 2005.

/s/ JOHN W. SEDWICK UNITED STATES DISTRICT JUDGE

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