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Whitesell v. Burnham

United States District Court, D. Utah, Central Division

March 8, 2017

MICHAEL ANTHONY WHITESELL, Plaintiff,
v.
DR. BRUCE O. BURNHAM, Defendant.

          MEMORANDUM DECISION & ORDER GRANTING MOTION FOR SUMMARY JUDGMENT BASED ON PLAINTIFF'S FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES

          DALE A. KIMBALL United States District Court Judge

         Defendant moves for summary judgment based on Plaintiff's failure to exhaust administrative remedies, as required by the Prison Litigation Reform Act (PLRA). 42 U.S.C.S. § 1997e(a) (2017). The Court agrees that Plaintiff did not exhaust his administrative remedies as required to maintain this action.

         BACKGROUND

         “No action shall be brought with respect to prison conditions [under § 1983], 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.” Id. In this case, to exhaust administrative remedies, by policy, the grieving inmate must go through each of three grievance levels--i.e., level-one, level-two, and level-three grievance filings--to exhaust the administrative process before seeking judicial relief. (Decl. of Casper, Doc. 36-6 at ¶ 6.) At Utah State Prison (USP), a level-one grievance must be filed “[w]ithin seven working days of an incident or seven working days from the time the inmate knew or should have known about a grievable incident.” FDr02/03.03 (Doc. 36-4, at p. 14.)

         Plaintiff alleges in his Amended Complaint that he was being held at Beaver County Jail, when he suffered severe cough and chest pain. (Am. Compl., Doc. 25 at ¶ 8.) He further asserts he submitted two medical-care requests that Defendant treat him, but Defendant refused to. (Decl. of Dr. Burnham, Doc. 36-5 at ¶ 5.) However, according to Plaintiff's medical records, Plaintiff submitted only one Health Care Request (HCR) before his release. That HCR was received on February 22, 2010 and Defendant responded. Plaintiff was then complaining of flulike symptoms for which he was treated. (Decl. of Dr. Burnham. Doc. 36-5 at ¶ 6.)

         Defendant's review of Plaintiff's medical records shows that Plaintiff did not file any other medical care requests before his release on June 15, 2010. (Decl. of Dr. Burnham, Doc. 36-5 at ¶ 7; Decl. of Casper, Doc. 36-6 at ¶ 18.) Plaintiff alleges that, on August 6, 2010, almost two months after he was released, he went to Veterans Administration (VA) Hospital's emergency room, where he was diagnosed with pneumonia. (Am. Compl. at ¶¶ 11-27.) Plaintiff asserts he spent a number of days in VA Hospital. Plaintiff further states his medical issue should have been diagnosed and treated before his release from prison on June 15, 2010. According to Plaintiff's medical records, the last time Defendant saw him was February 22, 2010, nearly four months before his release. Plaintiff did not file any grievances in 2010. (Decl. of Casper, Doc. 36-6 at ¶ 19.)

         On January 7, 2012, Plaintiff returned to prison and was released again on October 5, 2014. Plaintiff never filed any grievance during that time as to his complaint's allegations. Indeed, the Amended Complaint was filed while he was still in prison. (Decl. of Casper, Doc. 36-6 at ¶ 20.) Plaintiff knew or should have known if he was not feeling well before his release from prison on June 15, 2010 and therefore he had to file a grievance under USP grievance policy. Because Plaintiff never filed a grievance about his allegations, let alone within proper timeframes, he has failed to exhaust his administrative remedies. (See Decl. of Casper, Doc. 36-6 at ¶ 21.)

         ANALYSIS

         Summary judgment is appropriate where “there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “[A] mere factual dispute will not preclude summary judgment; instead there must be a genuine issue of material fact.” See Cooperman v. David, 214 F.3d 1162, 1164 (10th Cir. 2000). Here, Plaintiff admits in his complaint that he did not exhaust his claims. (Am. Compl., Doc. 25 at ¶ 38.)

         The United States Supreme Court and the Tenth Circuit have held that the exhaustion requirement must be met to bring a § 1983 claim in federal court under PLRA:

[PLRA] imposes a mandatory exhaustion requirement on inmates challenging prison conditions in federal court:
No 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.
42 U.S.C. § 1997e(a)[.] . . . An inmate's failure to exhaust is an affirmative defense and the burden is on the defendant to prove the failure to exhaust. See Jones v. Bock, 549 U.S. 199, 127 S.Ct. 910, 921, 166 L.Ed.2d 798 (2007); Roberts v. Barreras, 484 F.3d 1236, 1241 (10th Cir.2007).

Thomas v. U.S. Bureau of Prisons, No. 07-1426, 2008 U.S. App. LEXIS 13415, at *4-5 (10th Cir. June 24) ...


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