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

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TERRY GODDARD Attorney General KELLEY J. MORRISSEY Assistant Attorney General State Bar No. 016158 1275 West Washington Phoenix, Arizona 85007-2926 Telephone: (602) 542-4951 Fax: (602) 542-7670 [email protected] Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE STATE OF ARIZONA DANNY MILLER, Plaintiff, v. DONALD SLOAN, et al., Defendants. Defendants Macabuhay, Sloan, and Pratt, by and through undersigned counsel, move to dismiss Plaintiff's Complaint pursuant to Rule 12(b), Federal Rules of Civil Procedure, because Plaintiff failed to exhaust his prison administrative remedies prior to initiating his 42 U.S.C. § 1983 ("§1983") lawsuit, as mandated by 42 U.S.C. § 1997e(a). Because Plaintiff failed to exhaust his prison administrative remedies, he did not satisfy a condition precedent to filing suit and is therefore prohibited from bringing or continuing to pursue the underlying action. See McKinney v. Carey, 311 F. 3d 1198 (9th Cir. 2002) (dismissal is required if a prisoner fails to exhaust his administrative remedies prior to filing suit). Defendants' Motion to Dismiss is supported by the following Memorandum of Points and Authorities. No. CV 04-19-PHX-DGC (LOA) DEFENDANTS' UNENUMERATED RULE 12(B)(6) MOTION TO DISMISS

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MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION Plaintiff is a convicted felon in the custody of the Arizona Department of Corrections ("ADC"). In his Amended Complaint, filed under 42 U.S.C. § 1983, Plaintiff alleged that Defendants were deliberately indifferent to his serious medical needs. Specifically, Plaintiff alleged that Defendants refused his request for a "no spice" diet to help relieve the symptoms of Irritable Bowel Syndrome ("IBS") and did not renew his prescription for the drug Bentyl (Dicyclomine) because it was "too expensive." (See Plaintiff's Amended Complaint [Dkt. 50] at 4-4c.) The parties filed cross-motions for summary judgment. (Dkt. 59, 72.) In an Order filed December 1, 2005, the Court denied Plaintiff's motion for summary judgment and granted the Defendants' motion, in part, dismissing Plaintiff's diet claim. (Dkt. 87.) The only claim that remains is Plaintiff's claim that Defendants failed to renew his Bentyl prescription because the drug was too costly. II. LEGAL ARGUMENT A. Plaintiff's Amended Complaint Should Be Dismissed For Failure to Exhaust Administrative Remedies.

The Prison Litigation Reform Act of 1996 ("PLRA") mandates exhaustion of administrative remedies prior to suit for all inmate claims "brought with respect to prison conditions under section 1983 of this title, or any other federal law." 42 U.S.C. § 1997e(a); Porter v. Nussle, 534 U.S. 516, 516-517 (2002). Exhaustion of all remedies for all claims is a prerequisite to suit and cannot be waived on grounds of futility, inadequacy, default or for lack of being "plain, speedy, and effective." Booth v. Churner, 532 U.S. 731, 739-740 (2001); see also Porter, 534 U.S. at 532. The failure to exhaust administrative remedies under the PLRA is treated as a matter in abatement and is properly raised in an unenumerated Rule 12(b) motion. See

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Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). "In deciding a motion for a failure to exhaust nonjudicial remedies, the court may look beyond the pleadings and decide disputed issues of fact." Id. at 1119-20. "If the district court concludes that the prisoner has not exhausted nonjudicial remedies, the proper remedy is dismissal of the claim without prejudice." Id. at 1120. A court may not stay an action to provide the plaintiff a further opportunity to exhaust. McKinney, 311 F.3d at 1199-1200. "Once within the discretion of the district court, exhaustion in cases covered by § 1997e(a) is now mandatory." Porter, 534 U.S. at 524. As stated by the Supreme Court: Beyond doubt, Congress enacted § 1997e(a) to reduce the quantity and improve the quality of prisoner suits; to this purpose, Congress afforded corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case. In some instances, corrective action taken in response to an inmate's grievance might improve prison administration and satisfy the inmate, thereby obviating the need for litigation. In other instances, the internal review might filter out some frivolous claims. And for cases ultimately brought to the court, adjudication could be facilitated by an administrative record that clarifies the contours of the controversy. Id. (Citations and quotations omitted.) (emphasis added.) Relevant evidence in demonstrating the availability of administrative relief "include statutes, regulations, and other official directives that explain the scope of the administrative review process; documentary or testimonial evidence from prison officials who administer the review process; and information provided to the prisoner concerning the operation of the grievance procedure." Brown v. Valoff, 422 F.3d 926, 937 (9th Cir. 2005). B. Plaintiff Failed to Exhaust His Administrative Remedies.

At the times relevant to Plaintiff's complaint, the ADC's three-tiered administrative remedies procedure was governed by ADC Department Order ("DO") 802. (See DO 802, attached as Exhibit 1 to Declaration of Jeffrey Brand, hereinafter "Brand," which is attached as Exhibit A.) Department Order 802, Inmate Grievance

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System (effective March 3, 2000), provides that an inmate may use the grievance process for issues relating to "property, staff, visitation, mail, food service, institutional procedures, Department Written Instructions, program access, medical care, religion and conditions of confinement." DO 802.01 § 1.1.1. A copy of DO 802 is maintained in each prison unit's library. DO 802.04 § 1.1. An inmate is required to attempt to resolve all allowed grievance issues informally before submitting a formal grievance. DO 802.01 § 1.1.3. An inmate must submit an inmate letter to his assigned Grievance Coordinator within ten workdays of the action that caused the complaint. DO 802.08 § 1.1. If the inmate complaint cannot be resolved informally, the inmate may submit a formal inmate grievance to his Grievance Coordinator within ten calendar days from the date the inmate receives the Inmate Request/Response form from their CO III. DO 802.09 § 1.1.2. If the inmate receives an unfavorable response, he may appeal to the Warden/Deputy Warden within ten calendar days of receipt of the grievance form returned from the Grievance Coordinator. DO 802.09 § 1.3.1. If the inmate wishes to appeal the Warden's/Deputy Warden's response, he may appeal to the Director via the Grievance Coordinator within ten calendar days of receipt of his grievance form from the Warden/Deputy Warden. DO 802.09 § 1.4.1. Within thirty calendar days of receipt of the grievance appeal, the Director shall review the grievance and provide a written response to the inmate specifying the reasons for the decision. DO 802.09 § 1.4.3. The Director's response is final, thereby exhausting available administrative remedies through the ADC's Inmate Grievance System for standard grievances. DO 802.09 § 1.4.4. If an inmate has a complaint regarding a medical issue, he would follow the same process as if he had a standard complaint, i.e., try to resolve the complaint informally with his CO III. (DO 802.11 § 1.1.1.) The CO III would consult with the

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appropriate medical staff for a response (DO 802.11 § 1.1.1.1.); if dissatisfied with the response by the CO III, the inmate has 10 calendar days to file a formal grievance which is answered by the Facility Health Administrator ("FHA") (DO 802.11 § 1.1.2 and § 1.2.); if the inmate is not satisfied with the response of the FHA, he may file an appeal within 10 calendar days to the Director, the Deputy Director for Inmate Health Services, or designee, who investigates the complaint, prepares a written response and forwards the response to Legal Services for review and comments as appropriate, who then forwards the response to the Director for review and signature. DO 802.11 § 1.3. "The Director's response is final, thus exhausting available administrative remedies through the Department's Inmate Grievance System for medical grievances." DO 802.11 § 1.3.5. If an inmate does not receive a response from an ADC official within the time limits set in the Inmate Grievance System, he is allowed to proceed to the next review level. (DO 802.07 § 1.2.4.) While ADC policy requires a response from the Director to administratively exhaust, submitting a grievance to the Director's level has been considered sufficient for an inmate to administratively exhaust the internal grievance policy for prisoner complaints under the PLRA. 1. Plaintiff's Grievance.

In his Amended Complaint, Plaintiff acknowledges that the administrative remedies are available in the prison. (Dkt. 50 at 4.) Plaintiff indicates that he submitted a request for administrative relief on Count I and appealed his request to the highest level. (Id.) However, while Plaintiff arguably exhausted his administrative remedies with regard to his "no spice" diet issue, he did not exhaust his administrative remedies with regard to his claim that Defendants did not renew his prescription for the drug Bentyl (Dicyclomine) because it was "too expensive."

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Plaintiff contends that on June 4, 2002, Defendant Macabuhay did not provide him with Bentyl because it was too expensive. (Plaintiff's Separate Statement of Facts in Support of the Plaintiff's Motion for Summary Judgment, hereinafter "PSOF" [Dkt. 60.] at ¶ 11.)(A courtesy of Plaintiff's Separate Statement of Facts, as well as any pertinent exhibits mentioned therein, are attached to the Judge's copy.) Plaintiff did not submit any grievance related documents regarding IBS until more than a year later. On July 19, 2003, Plaintiff submitted an inmate letter, the focus of which was a "no spice" diet. (Exhibit 7 to PSOF; Brand at ¶ 7.) After receiving a response to his inmate letter, Plaintiff submitted an inmate grievance in Case No. L15-081-003, dated August 18, 2003, stating that Dr. Macabuhay had placed him on a "no spice diet" a little over a year ago. (Declaration of Donald Sloan, Exhibit B to Statement of Facts in Support of Defendants' Response to Plaintiff's Motion for Summary Judgment and Cross-Motion for Summary Judgment [Dkt. 73] at ¶ 6; Brand at ¶¶ 8-9.) (A courtesy copy of the Sloan Declaration is attached to the Judge's copy) When the diet expired, Plaintiff claimed that he submitted a request for a renewal and was informed that there was no such diet. (Id.) The relief Plaintiff sought was appropriate medical treatment for his spice induced medical symptom complaints. (Id.) Defendant Sloan responded to Plaintiff's inmate grievance in Case No. L15-081-003 on September 17, 2003, stating "Investigation into the issue you raised including a review of your medical records by the Health Care Provider shows the following: There is no documentation of allergy to spices. That is why RAST test was ordered. This test revealed NO allergy to cayenne or chili peppers. You have been informed that DOC does not recognize preference diets, if there is documented allergy to any substance, then it can be eliminated from the diet. Additional information that should be considered is according to the kitchen cayenne and chili peppers are the only spices that are used in DOC kitchens." (Sloan Declaration at ¶ 7; Brand at ¶ 10.) Inmate Miller appealed

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Defendant FHA Sloan's inmate grievance response in Case No. L15-081-003 to the Director on September 28, 2003. (Declaration of Richard Pratt, Exhibit C to Statement of Facts in Support of Defendants' Response to Plaintiff's Motion for Summary Judgment and Cross-Motion for Summary Judgment [Dkt. 73] at ¶ 6; Brand at ¶ 11.) (A courtesy copy of the Pratt Declaration is attached to the Judge's copy.) In an inmate grievance response dated November 20, 2003, Director Schriro acknowledged receipt of Plaintiff's inmate grievance appeal in Case No. L15-081-003 dated September 28, 2003, which was received in her office on October 6, 2003. (Pratt Declaration at Exhibit 3; Brand at ¶ 12.) In his appeal, Plaintiff requested a "no spice" diet. (Id.) In her response, the Director explained that Plaintiff was "examined by Dr. Macabuhay on June 10, 2003 in response to a Health Needs Request (HNR) complaining of stomach pain, diarrhea, and nausea, which you attributed to certain spices. You were diagnosed at that time with a hiatal hernia with reflux. You were recommended to have a diet with no cayenne pepper or chili powder which you state make you sick. You were appropriately tested for any allergic response to chili and cayenne peppers and results were negative. As a result of such testing your diet request for no-spice and no-pepper will not be granted. You have since that time been diagnosed with irritable bowel. This was discussed with you on July 31, 2003. It is recommended that you continue to follow the recommendations of your local medical staff. Your symptoms have not been determined to be a direct result of spices in your diet. You have also been provided with medication for symptomatic relief of your diagnosed conditions of reflux and irritable bowel. It is also recommended that you avoid excessive intake of items which may exacerbate your conditions, including coffee, tobacco, chocolate, and peppermint. You may request to discuss this further with local medical staff for additional information and education in the proper

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management of your symptoms. Your health care has been adequate and appropriate." (Id.) There was no mention in Plaintiff's July 19, 2003 inmate letter, his inmate grievance in Case No. L15-081-003, or his inmate grievance appeal in Case No. L15-081-003 regarding an alleged denial of Bentyl because it was too expensive. And, Plaintiff has not filed any other inmate grievances concerning the denial of Bentyl due to its cost. (See Brand at ¶ 13.) Plaintiff submitted an inmate letter addressed to Defendant Macabuhay, dated December 17, 2003, stating "Dr. Macabuhay you diagnosed me with Irritable Bowel Syndrome (IBS). Attached is an IBS excerpt taken from a medical book published in `98. So I can better understand my condition, can you tell me if the information contained in the IBS excerpt (e.g., symptoms, treatment, etc.) are accurate? If not, how should I best manage my IBS?" (Sloan Declaration at ¶ 8.) On January 6, 2004, Defendant Sloan responded to Plaintiff's December 17, 2003 inmate letter, stating "An investigation into the issue you have raised included a review of your medical records, by the Health Care Provider. The Health Care Provider provided the following information: The article more or less discusses the condition adequately. There is no known cure for IBS. The treatment given is symptomatic treatment only. In most cases the condition is aggravated by anxiety states." (Sloan Declaration at ¶ 9.) Plaintiff's December 17, 2003 inmate letter did not include any reference to an alleged denial of Bentyl because it was too expensive. Plaintiff filed this lawsuit on January 5, 2004. (Dkt. 1.) Prior to filing this lawsuit, Plaintiff did not submit a request for administrative relief regarding his claim that he was denied Bentyl because it was too expensive. Accordingly, Plaintiff did not exhaust his administrative remedies.

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III.

CONCLUSION. The PLRA mandates exhaustion of administrative remedies prior to suit for all

inmate claims "brought with respect to prison conditions under section 1983 of this title, or any other federal law." Because Plaintiff did not exhaust his available administrative remedies with regard to his allegations that Defendants did not renew his prescription for the drug Bentyl because it was too expensive, prior to filing the instant lawsuit, as mandated by 42 U.S.C. § 1997e(a), Defendants respectfully submit that Plaintiff's Amended Complaint be dismissed in its entirety. RESPECTFULLY SUBMITTED on this 17th day of February, 2006. TERRY GODDARD Attorney General

s/ Kelley J. Morrissey KELLEY J. MORRISSEY Assistant Attorney General Attorneys for Defendants

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ORIGINAL of the foregoing electronically filed this 17th day of February, 2006, with: Clerk of the Court United States District Court District of Arizona 401 West Washington Phoenix, AZ 85003 Copy of the foregoing has been mailed this 17th day of February, 2006, to:_ _ Danny L. Miller, # 109729 Arizona State Prison Complex ­ Tucson Santa Rita Unit ­ 3-D-17 P.O. Box 24406 10012 South Wilmot Road Tucson, AZ 85734-4406 Plaintiff Pro Per s/A. Palumbo Secretary to Kelley J. Morrissey
IDS04-0395/RM#G2003-04642

945454

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