Dury v. Seroski

Decision Date04 May 2021
Docket NumberCivil Action 1:20-cv-01058 JJDD-SKC
PartiesMATTHEW JAMES DURY, Plaintiff, v. JENNIFER SEROSKI, PA, Defendant.
CourtU.S. District Court — District of Colorado

RECOMMENDATION RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT[#44] & PLAINTIFF'S MOTION TO AMEND[#50]

S Kato Crews U.S. Magistrate Judge

PlaintiffMatthew James Dury, a pro se prisoner in the custody of the Federal Bureau of Prisons at the United States Penitentiary - Administrative Maximum (ADX), filed this lawsuit contending DefendantJennifer Seroski, P.A., violated his Eighth Amendment rights when she was deliberately indifferent to his serious medical needs.[#6.][1] According to the Amended Complaint ("AC"), Plaintiff was diagnosed with a tumor on his bladder, which he contends was caused by the medication Ranitidine.[2][Id. at p.4.]Plaintiff alleges Seroski continued to treat Plaintiff with Ranitidine even after his tumor was discovered and has prevented Plaintiff from receiving cancer treatments.Seroski seeks summary judgment and argues Plaintiffs claims are barred because he failed to exhaust his administrative remedies ("AR") as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C.§ l997e(a).[#44.]

In his original pleading, Plaintiff also named Warden B.True as a defendant and alleged Warden True was denying Plaintiff cancer testing on his alleged tumor.[#6 at p.4.]Senior District JudgeBabcock dismissed this claim on the basis a supervisor cannot be held liable for the unconstitutional conduct of his subordinates on a theory of respondeat superior.[#21 at p.3.]On January 22, 2021, Plaintiff filed a Motion to Reinstate Warden B.True as a CoRespondent [#50.]Because PlaintiffsMotion to Reinstate includes new allegations, the Court construes it as a request to amend the AC.

Having considered the Motion for Summary Judgment, the Motion to Reinstate, the related briefing, the entire case file, and the applicable law, the Court RECOMMENDS the Motion for Summary Judgment be GRANTED.The Court further RECOMMENDS PlaintiffsMotion to Reinstate be DENIED.

ANALYSIS
A.Motion for Summary Judgment
1. Fed.R.Civ.P. 56

Summary judgment is appropriate only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.Fed. R. Civ. P.56(c);Celotex Corp. v. Catrett,477 U.S. 317, 322(1986);Henderson v. Inter-Chem Coal Co., Inc.,41 F.3d 567, 569(10th Cir.1994).Whether there is a genuine dispute as to a material fact depends upon whether the evidence presents a sufficient disagreement to require submission to a jury or conversely, is so one-sided that one party must prevail as a matter of law.Anderson v. Liberty Lobby,477 U.S. 242, 248-49(1986);Stone v. Autoliv ASP, Inc.,210 F.3d 1132(10th Cir.2000);Carey v. U.S. Postal Serv.,812 F.2d 621, 623(10th Cir.1987).The Court must resolve factual ambiguities against the moving party, thus favoring the right to a trial.Houston v. Nat'l Gen. Ins. Co.,817 F.2d 83, 85(10th Cir.1987).

2.Prison Litigation Reform Act

The PLRA requires prisoners to exhaust administrative remedies before filing a civil rights action.The statute 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. § l997e(a).The exhaustion requirement applies to all inmate suits concerning prison life, whether they involve general circumstances or specific episodes.Woodford v. Ngo,548 U.S. 81, 85(2006);Booth v. Churner,532 U.S. 731, 741(2001)(holding prisoners must exhaust administrative remedies before filing a lawsuit regardless of the type of relief prayed for in the complaint).

Exhaustion is an affirmative defense, which places the burden on defendants to prove it by a preponderance of the evidence.Roberts v. Barreras,484 F.3d 1236, 1241(10th Cir.2007).When the affirmative defense of failure to exhaust administrative remedies is asserted in a motion for summary judgment, defendants"must demonstrate that no disputed material fact exists regarding the affirmative defense asserted."Hutchinson v. Pfeil,105 F.3d 562, 564(10th Cir.1997)."If the defendant[s] meet[ ] this initial burden, the plaintiff must then demonstrate with specificity the existence of a disputed material fact."Id."If the plaintiff fails to make such a showing, the affirmative defense bars his claim, and the defendant[s][are] then entitled to summary judgment as a matter of law."Id.;see alsoRoberts,484 F.3d at 1241(defendants bear the burden of proving their affirmative defense that Plaintiff failed to exhaust available administrative remedies).

3.Exhaustion of Administrative Remedies

The BOP provides a four-tiered Administrative Remedy Program for inmate grievances, which is codified at 28 C.F.R. § 542.10, et seq.The first tier requires informal resolution with prison staff, which the prisoner requests with a form known as a BP-8.See28 C.F.R. § 542.13(a).If no informal resolution is reached, the prisoner must submit a formal inquiry, known as a BP-9 request, to the warden.See28 C.F.R. § 542.14.If dissatisfied with the warden's response, the prisoner may appeal to the Regional Director by filing a Regional Office Administrative Remedy Appeal(also known as a BP-10 request) within 20 days of the warden's dated response.See28 C.F.R. § 542.15(a).Finally, if this appeal is unsuccessful, the prisoner may file a Central Office Administrative Remedy Appeal, known as a BP-11 request, with the BOP's Office of General Counsel within 30 days of the Regional Office's denial.Id.

At any level, an official's failure to respond within the time allotted constitutes a denial of the request or appeal.28 C.F.R. § 542.18.An administrative remedy is not fully exhausted until the inmate has properly and timely sought review at each level.SeeJones v. Bock,549 U.S. 199, 218(2007).4.Discussion

In his Response to the Motion for Summary Judgment, Plaintiff challenges the relevance of certain grievances, but does not dispute Seroski's statement of facts regarding exhaustion.[#48 at pp.4-5.]Therefore, the following facts are undisputed:

• On March 11, 2019, Plaintiff filed AR 970570-F1, in which he requested surgery to remove a prostate tumor, [#44-l at p.29.]The remedy was denied, and the explanation was given to Plaintiff on March 15, 2019.[Id. at p.30.]
• On March 25, 2019, Plaintiff filed AR 970570-R1, appealing the decision to the Regional level.[Id. at p.32.]This appeal was first rejected for failure to provide appropriate documents, and after Plaintiff resubmitted, his appeal was denied.[Id. at ¶I2, pp.19, 33.]
• On June 3, 2019, Plaintiff filed AR 970570-Al, [3] appealing the decision to the National level.[Id. at ¶I4, p.20.]This appeal was rejected on the basis he did not comply with page and copy requirements.[Id.]Plaintiff did not resubmit his appeal at the National level.[Id. at ¶I5.]
• On May 13, 2020, Plaintiff filed AR 1020548-F1, in which he requested meal replacement bars in preparation for surgery.In the remedy, Plaintiff alleged Seroski prescribed him Ranitidine, which caused his "mass."[Id. at p.35.]Warden True denied the remedy on June 16, 2020.[Id. at p.36.]
• On June 29, 2020, Plaintiff filed AR 1020548 -Rl, [4] appealing the decision to the Regional level.[Id. at ¶I7, p.26.]This appeal was rejected on the basis Plaintiff was attempting to appeal more than one incident on a single form.[Id.]
Plaintiff was given 10 days to resubmit his appeal, but he never did.[Id.at ¶¶18-19.]

In his Response, Plaintiff argues the Surgery Grievance was exhausted upon his transfer to ADX.But he cites no law for the proposition that a prison transfer alone-while the AR process is still pending-exhausts the process.Neither the regulations nor the case law supports the argument.Thus, it is undisputed Plaintiff failed to exhaust his administrative remedies for the Surgery or Ranitidine Grievances.Because Seroski has met her burden of demonstrating Plaintiff failed to exhaust his administrative remedies, "the onus falls on the plaintiff to show that remedies were unavailable to him."Tuckel v. Grover,660 F.3d 1249, 1254(10th Cir.2011).

If an administrative remedy is not available, an inmate cannot be required to exhaust it.Tuckel,660 F.3d at 1252.A remedy is "available" under the PLRA if it affords "the possibility of some relief for the action complained of."Booth v. Churner,532 U.S. 731, 738(2001).The Tenth Circuit has held that an administrative remedy is not "available" under the PLRA"when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation."Ross v. Blake,136 S.Ct. 1850, 1860(2016).[5] Based on this principle, the court must "ensure that any defects in exhaustion [are] not procured from the action or inaction of prison officials."Aquilar-Avellaveda v. Terrell,478 F.3d 1223, 1225(10th Cir.2007).

In his Response, Plaintiff states he was transferred to ADX following the rejection of the Surgery Grievance and says he was not given remedy forms until the end of 2019.With respect to the Ranitidine Grievance, Plaintiff contends he was "not allowed to get the forms to appeal."[#48 at pp.4-5.]But Plaintiff provides insufficient evidence to support these contentions and demonstrate disputed issues of material fact.Even were the Court to treat Plaintiffs Response as an affidavit, the Court nevertheless concludes Plaintiff has failed to establish his administrative remedies were unavailable to him.SeeAdvanced Optics...

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