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Roe v. Tubbs

United States District Court, D. Utah

March 19, 2018

BRENT ROE, Plaintiff,



         Before the court is the defendants' motion for summary judgment. [Docket 30]. The court GRANTS the motion.


         Plaintiff Brent Roe is a prisoner at the Utah State Prison. On June 22, 2013, Roe's cellmate[1] set his mattress on fire. Roe alleges that prison guards were slow to respond to the fire. He also alleges that smoke from the fire damaged his lungs leading to a persistent cough that continued until two years after the fire.

         Sometime around early April 2015, Roe submitted a Level I Grievance to prison officials. In it, Roe complained that his lungs had been damaged by fumes from the 2013 fire and that Doctor Kenneth Tubbs had refused to prescribe respiratory therapy. Prison officials denied and returned the Level I Grievance, stating that Roe had failed to file his Grievance within seven working days of the 2013 fire as required by the prison's grievance procedure. Roe then submitted a Level II Grievance which provided more detail to his claim that the 2013 fire damaged his lungs and that Dr. Tubbs had refused to give him respiratory therapy. Prison officials again denied the grievance, asserting that there was no record of receiving a Level I Grievance on the subject of a long-term cough. Roe finally submitted a Level III Grievance in which he argued that he had consistently raised the issue of his persistent cough throughout the grievance process. On May 8, 2015, Prison officials denied the Level III Grievance, arguing that it was “too late to grieve any alleged lung damage due to the fire . . . set in 2013” and that Roe was “seen by Dr. Tubbs on May 6, 2015, and there was no evidence of a cough . . . or asthma.”

         In August 2015, Roe filed a civil complaint against Dr. Tubbs and Scott Crowther, the warden of the Utah State Prison. The complaint alleged that he had been subjected to cruel and unusual punishment in violation of his Eighth Amendment rights under three distinct theories. First, Roe alleged that the prison guards' slow response to the fire subjected him to severe smoke inhalation. Second, he alleged that Dr. Tubbs refused requests for treatment of his persistent cough. And Third, Roe alleged that Dr. Tubbs refused treatment for a hernia he had developed in March 2015.

         The defendants filed a motion for summary judgment, arguing that they should prevail as a matter of law for two reasons: (1) Roe failed to exhaust his administrative remedies and (2) Dr. Tubbs and Crowther did not violate Roe's Eighth Amendment rights.


         “The court shall grant summary judgment if the movant shows that 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 fact is material if, under the governing law, it could have an effect on the outcome of the lawsuit. A dispute over a material fact is genuine if a rational jury could find in favor of the nonmoving party on the evidence presented.” Schneider v. City of Grand Junction Police Dep't, 717 F.3d 760, 767 (10th Cir. 2013) (citation omitted). On a motion for summary judgment, the court “consider[s] the evidence in the light most favorable to the non-moving party.” Conroy v. Vilsack, 707 F.3d 1163, 1170 (10th Cir. 2013) (citation omitted). However, “[w]hen the moving party has carried its burden under rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.'” Scott v. Harris, 550 U.S. 372, 380 (2007) (alterations in original) (citation omitted).



         The Prison Litigation Reform Act (PLRA) provides: “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). “[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). “Exhaustion is [not] left to the discretion of the district court, but is mandatory.” Woodford v. Ngo, 548 U.S. 81, 85 (2006); accord Beaudry v. Corr. Corp. of Am., 331 F.3d 1164, 1167 n.5 (10th Cir. 2003) (“The statutory exhaustion requirement of § 1997e(a) is mandatory, and [district courts are] not authorized to dispense with it.”).

         The Supreme Court has held that the exhaustion requirement may not be satisfied by filing an untimely or otherwise procedurally infirm grievance because the PLRA requires “proper exhaustion.” Woodford, 548 U.S. at 90. Proper exhaustion “‘means using all steps the agency holds out, and doing so properly (so that the agency addresses the issues on the merits).' . . . [and] demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings.” Id. at 90-91 (citation omitted).

         Under this statutory exhaustion requirement, Roe failed to exhaust his administrative remedies for his claim that Dr. Tubbs refused to treat his hernia. None of the grievances he filed with prison officials mentioned a hernia. Nor did he ever claim that he did not receive proper medical care for this alleged condition. Because Roe failed to address this claim through the Utah State Prison grievance ...

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