United States District Court, D. Utah, Central Division
EARL L. BARNES, Plaintiff,
LOGAN S. CLARK ET AL., Defendants.
MEMORANDUM DECISION AND ORDER GRANTING MOTION FOR
NUFFER CHIEF JUDGE
Earl L. Barnes, is a pro se prisoner proceeding
in forma pauperis. In this civil-rights complaint,
42 U.S.C.S. § 1983 (2017), he asserts his federal
constitutional rights have been breached by Defendants giving
inadequate medical treatment for ear and urinary-tract
infections. He also raises a medical-malpractice claim under
Utah state law.
move for summary judgment based on Plaintiff's failure to
exhaust his administrative remedies through the prison
grievance process. (See Docket Entry #s 29 &
37.) Defendants support their motion with a Martinez
report (including affidavits, medical history, and grievance
policy and history) and a memorandum. (See Docket
Entry #s 24 & 29.) Plaintiff responds to the motions,
(see Docket Entry #s 30, 33 & 40); however, the
only documents he includes supporting his argument--that he
did exhaust his administrative remedies--are grievances about
an unrelated incident (i.e., denial of pills based on a
“cheeking” incident). The Court rules for
judgment is appropriate where “there is no genuine
dispute 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, by presenting no
documentation or evidence whatsoever as to grievances at
level three, regarding his claims about medical treatment for
his infections, Plaintiff essentially admits that he did not
exhaust his claims. Thus, there is no dispute of material
there are but two material facts: (1) the prison grievance
policy requires that grievances be submitted at all three
levels. (Martinez rep't, exh. 6, Utah Dep't
of Corrs. Institutional Operations Div. Manual, chapt. Inmate
Grievances, Docket Entry # 24.) (2) Plaintiff did not submit
level-three grievances for his claim of inadequate medical
treatment as to his ear and urinary-tract infections. Nothing
else is relevant.
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)
(unpublished) (citation omitted).
the United States Supreme Court has held that a prisoner must
exhaust administrative remedies even when the relief sought
cannot be granted by the administrative process. Booth v.
Churner, 532 U.S. 731, 734, 741 n. 6 (2001) (stressing
“we will not read futility or other exceptions into
[PLRA's] exhaustion requirements where Congress has
provided otherwise”). “An inmate properly
exhausts by completing all the steps of the prison's
administrative grievance process.” Hardeman v.
Sanders, No. 10-7019, 2010 U.S. LEXIS 20467, at *5 (10th
Cir. Oct. 4).
Supreme Court has held that exhaustion may not be satisfied
by filing an untimely or otherwise procedurally infirm
grievance, but rather the PLRA requires “proper
exhaustion.” Woodford v. Ngo, 548 U.S. 81, 90
(2006). “Proper exhaustion” equals
“'using all steps the agency holds out, and doing
so properly (so that the agency addresses the issues
on the merits).'” Id. (quoting Pozo v.
McCaughtry, 286 F.3d 1022, 1024 (7th Cir.2002))
(emphasis in original). In Ngo, the Supreme Court
concedes “that this will prevent certain prisoner cases
from proceeding, but notes that a ‘centerpiece of the
PLRA's effort to reduce the quantity . . . of prisoner
suits is an “invigorated” exhaustion provision,
§ 1997e(a).' ‘Exhaustion is no longer left to
the discretion of the district court, but is
mandatory.'” Tung v. Hartley, No.
1:08-CV-457-AWI, 2012 U.S. Dist. LEXIS 30895, at *3 (E.D.
Cal. Mar. 8) (citations omitted) (ellipses in original).
to exhaust administrative remedies, by policy, the grieving
inmate must go through each of three levels to exhaust the
process and before seeking judicial relief. (See
Casper Decl., Docket Entry # 24-1, at ¶ 6.) But
Plaintiff did not comply with grievance policy and therefore
did not exhaust his administrative remedies. Booth v.
Churner, 532 U.S. at 741 n.6; see also Jernigan v.
Stuchell,304 F.3d 1030, 1032 (10th Cir. 2002)
(“Even where the ‘available' remedies would