Kristich v. United States of America et al

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
ORIN KRISTICH )
)
Plaintiff, )
)
v. ) Case No. CIV-23-544-R
)
FNU CASADY et al., )
)
Defendants. )
REPORT AND RECOMMENDATION
Plaintiff Orin Kristich, a convicted federal prisoner, appearing
pro se, and
in forma
pauperis, filed a civil rights Complaint on June 20, 2023. (ECF No. 1). On May 1, 2024,
Plaintiff filed a Second Amended Complaint (SAC) which the Court screened pursuant to
28 U.S.C. §§ 1915A and 1915(e)(2)(B).
See ECF Nos. 38, 51, & 54. Pursuant to its
screening obligation, the Court found that Plaintiff has stated: (1) an individual capacity
claim under the Eighth Amendment for deliberate indifference to Plaintiff’s serious
medical needs, limited to monetary damages, against both Defendants FNU Casady and
FNU Foster, nurses at Cimarron Correctional Facility (CCF); and (2) claims against both
Defendants under Oklahoma state law based on medical malpractice and intentional
infliction of emotional distress.
See ECF No. 54.
Defendants Casady and Foster have filed a Motion for Summary Judgment and
Brief in Support, arguing that they are entitled to judgment as a matter of law based on
Plaintiff’s failure to exhaust his administrative remedies with respect to the Eighth
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Amendment claims. (ECF No. 79).1 Mr. Kristich has filed a response and a “Notice”—with
documentation relevant to his response. (ECF Nos. 85 & 86). The Court should deny the
Motion for Summary Judgment.
I. FACTUAL BACKGROUND
Plaintiff arrived at CCF on December 22, 2021 and was transferred from that facility
on January 13, 2022. (ECF No. 79-1). During his stay there, Plaintiff alleges that he
suffered a dislocated shoulder which Defendants Casady and Foster failed to treat. (ECF
No. 38:13). Previously, the Court found:
The Second Amended Complaint alleges that Plaintiff suffered a
dislocated shoulder but was unable to report the injury for fifteen hours due
to staff not performing welfare checks. Sec. Am. Compl. at p. 13. It further
alleges that Plaintiff asked Defendant Casady to examine his shoulder but
she refused and that Defendant Foster was told that Plaintiff needed
medical treatment but he failed to check on Plaintiff.
Id. The next day,
Defendant Casady allegedly opened the cell door, viewed the injury, and
spoke to Dr. Crane.
Id. at 13-14. Dr. Crane then ordered a sling, but no
other treatment was provided until Plaintiff was transported to the hospital.
Id. Plaintiff also alleges that the dislocated shoulder caused extreme pain
and he suffered long term nerve and muscle damage from the delay in care.
Id.
. . .
Construed in Plaintiff’s favor, the allegations are sufficient to satisfy
the objective component of the deliberate indifference standard as a
dislocated shoulder is a serious injury that even a lay person would
recognize as requiring prompt medical attention.
See Petrichko v. Kurtz,
117 F. Supp. 2d 467, 470 (E.D. Pa. 2000) (concluding that a dislocated
shoulder is a serious medical need). The closer question is whether the
subjective component of the deliberate indifference standard is satisfied.
Regarding Defendants Casady and Foster, the Court concludes that these
allegations are sufficient to state a claim for deliberate indifference under
the gatekeeper theory, which permits liability where an official “prevents an
inmate from receiving treatment or denies access to someone capable of
evaluating the inmate’s need for treatment.”
Lucas, 58 F.4th at 1137.
1 Defendants have made no argument relative to the state law claims.
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Plaintiff alleges that Defendant Casady knew of his shoulder injury and that
Defendant Foster was told Plaintiff had a medical emergency, but neither
Defendant treated him or reported his need for treatment until the next
day. Plaintiff also alleges that this delay in care caused substantial harm.
Liberally construing Plaintiff’s pro se pleading and drawing all reasonable
inferences in his favor, as is required at this stage, Plaintiff has alleged
sufficient factual content to plausibly infer that Defendants Casady and
Foster subjectively knew of Plaintiff’s need for further medical treatment
but unreasonably delayed the care.
Judge Erwin did not separately analyze whether these allegations are
also sufficient to state plausible claims under state law for intentional
infliction of emotional distress or medical malpractice/negligence. Plaintiff
alleges that Defendants Foster and Crane, who are purportedly both nurses,
were aware he had a serious injury and did nothing in response and that
he suffered extreme pain and mental anguish as a result. Viewing the full
scope of the allegations in Plaintiff’s favor, there are sufficient factual
allegation to permit the state law claims against Defendants Casady and
Foster to proceed past the screening stage.
(ECF No. 54:5-6, 8).
II. STANDARD OF REVIEW
Summary judgment is a means of testing in advance of trial whether the available
evidence would permit a reasonable jury to find in favor of the party asserting a claim.
The Court must grant summary judgment when “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). When considering a motion for summary judgment, the Court views the evidence
and the inferences drawn from the record in the light most favorable to the non-moving
party.
Pepsi–Cola Bottling Co. of Pittsburg, Inc. v. PepsiCo, Inc., 431 F.3d 1241, 1255
(10th Cir. 2005). While the Court construes a pro se litigant’s pleadings liberally, such a
litigant nevertheless is held to the same rules of procedure as are binding on other
litigants.
See Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007).
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A party that moves for summary judgment has the burden of showing that the
undisputed material facts require judgment as a matter of law in its favor.
Celotex Corp.
v. Catrett, 477 U.S. 317, 322–23 (1986). To defeat summary judgment, the nonmovant
need not convince the Court that it will prevail at trial, but it must cite sufficient evidence
admissible at trial to allow a reasonable jury to find in the nonmovant’s favor, i.e. to show
that there is a question of material fact that must be resolved by the jury.
See Garrison
v. Gambro, Inc., 428 F.3d 933, 935 (10th Cir. 2005). Parties may establish the existence
or nonexistence of a material disputed fact through:
• citation to “depositions, documents, electronically stored information, affidavits
or declarations, stipulations ..., admissions, interrogatory answers, or other
materials” in the record; or
• demonstration “that the materials cited do not establish the absence or presence
of a genuine dispute, or that an adverse party cannot produce admissible evidence
to support the fact.”
Fed. R. Civ. P. 56(c)(1)(A)-(B).
A defendant seeking summary judgment on the basis of an affirmative defense
must show that the undisputed material facts establish
all of the elements of the defense.
See Hutchinson v. Pfeil, 105 F.3d 562, 564 (10th Cir. 1997) (“The defendant ... must
demonstrate that no disputed material fact exists regarding the affirmative defense
asserted.”). If the defendant meets this burden, the burden shifts to the plaintiff to cite
evidentiary material that shows there is a genuine factual dispute as to one or more
elements of the affirmative defense, absent which summary judgment should be granted
in favor of the defendant.
Id.
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III. DEFENDANTS ARE NOT ENTILTED TO SUMMARY JUDGMENT
Defendants argue that they are entitled to summary judgment due to Plaintiff’s
failure to exhaust his administrative remedies on the federal claims asserted against
them. (ECF No. 79:6-10). The Court should disagree.
A. The Exhaustion Requirement
The Prison Litigation Reform Act of 1995 (PLRA) requires a prisoner to exhaust all
available administrative remedies before resorting to a § 1983 action in federal court.
Specifically, 42 U.S.C. § 1997e(a) provides: “No action shall be brought with respect to
prison conditions under § 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.”
Id. “[E]xhaustion is mandatory under the PLRA and …
unexhausted claims cannot be brought in court.”
Jones v. Bock, 549 U.S. 199, 211 (2007).
An inmate such as Plaintiff, successfully exhausts his administrative remedies by
completing the administrative review process established by the facility grievance policy.
Id. at 218;
see Woodford v. Ngo, 548 U.S. 81, 90 (2006) (“[E]xhaustion of administrative
remedies ... means using all steps that the agency holds out....”). Exhaustion must occur
prior to the prisoner bringing a lawsuit on his claims.
See 42 U.S.C. § 1997e(a), (h);
Porter v. Nussle, 534 U.S. 516, 532 (2002);
Woodford, 548 U.S. at 93-103 (2006). “Proper
exhaustion 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.”
Ngo, 548 U.S. at 90-91.
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“An inmate who begins the grievance process but does not complete it is barred
from pursuing a § 1983 claim under PLRA for failure to exhaust his administrative
remedies.”
See Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002)
; see also Fields
v. Okla. State Penitentiary, 511 F.3d 1109, 1112 (10th Cir. 2007) (noting that “substantial
compliance [with the exhaustion process] is insufficient.” However, courts “are obligated
to ensure that any defects in exhaustion were not procured from the action or inaction
of prison officials.”
Aquilar–Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007).
However, an administrative remedy is not “available” under the PLRA if “prison
officials prevent, thwart, or hinder a prisoner’s efforts to avail himself of [the]
administrative remedy.”
Little v. Jones, 607 F.3d 1245, 1250 (10th Cir. 2010);
see also
Ross v. Blake, 578 U.S. 632 (2016). In
Ross, the United States Supreme Court outlined
three situations in which failure to exhaust is excusable because an administrative remedy
is not available to the inmate as required by the PLRA. As one example,
Ross stated:
[A]n administrative procedure is unavailable when (despite what
regulations or guidance materials may promise) it operates as a simple dead
end—with officers unable or consistently unwilling to provide any relief to
aggrieved inmates. Suppose, for example, that a prison handbook directs
inmates to submit their grievances to a particular administrative office—but
in practice that office disclaims the capacity to consider those petitions. The
procedure is not then “capable of use” for the pertinent purpose. In
Booth's
words: “[S]ome redress for a wrong is presupposed by the statute's
requirement” of an “available” remedy; “where the relevant administrative
procedure lacks authority to provide any relief,” the inmate has “nothing to
exhaust.” So too if administrative officials have apparent authority, but
decline ever to exercise it. Once again: “[T]he modifier ‘available’ requires
the possibility of some relief.” When the facts on the ground demonstrate
that no such potential exists, the inmate has no obligation to exhaust the
remedy.
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Ross, 578 U.S. at 643 (internal citations omitted). Based on this principle, district courts
are obligated “to 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).
Finally, exhaustion of internal administrative remedies for a facility is required even
if an inmate is transferred to a different facility.
See Davis v. Big Horn Cnty. Jail, 2024
WL 3897985, at *2 (10th Cir. 2024) (“[W]e have required exhaustion, even where
authorities transfer inmates to other facilities.”) (citing,
e.g., Patel v. Fleming, 415 F.3d
1105, 1111 (10th Cir. 2005) (holding that a prisoner failed to exhaust administrative
remedies where, after he was transferred to a different facility, he failed to timely file his
grievance)).
B. The Relevant Grievance Process
When determining whether administrative remedies have been exhausted, the
Court must look to the grievance process at the institution where the inmate is confined.
At the time of the alleged incident, Plaintiff was confined at CCF.
See supra. Defendants
have filed the relevant grievance policy.
See ECF No. 79-4.
The CCF Grievance Process allows an inmate to first attempt informal resolution
of his complaint by submitting an “Informal Resolution form,” form 14-00A.
See ECF No.
79-4:5 (CCF Grievance Policy, effective Oct. 20, 2020). However, an inmate may bypass
the informal resolution stage and proceed directly to filing a formal grievance.
Id. Within
5 calendar days of a response to the informal resolution form, the inmate must file a
formal grievance regarding the complaint. (ECF No. 79-4:7). If an inmate chooses to
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terminate or bypass the informal resolution stage, he may file a formal grievance within
7 calendar days of from the alleged incident, by filing a “14-100B” form.
Id. The formal
grievance is filed by placing it in the designated “Grievance Mail Box.”
Id.
If an inmate is dissatisfied with the decision of a formal grievance, he may follow
an “appeal process” which is comprised of “complet[ing] the appeal section of the 14-
100B and resubmit[ting] the grievance.” (ECF No. 79-4:8). Finally, “[i]f a grievance is
submitted for review and the detainee is transferred or released from custody, efforts to
resolve the grievance will normally continue. It is the detainee’s responsibility to notify
the Grievance Officer or the pending transfer or release and to provide a forwarding
address and any other pertinent information.” (ECF No. 79-4:9).
C. Defendants are not Entitled to Summary Judgment
Defendants seek summary judgment on the basis of their affirmative defense that
Plaintiff’s federal claims are barred because he did not comply with the PLRA’s exhaustion
requirement.
See ECF No. 79:6-10;
see generally Jones v. Bock, 549 U.S. 199, 219-20
(2007) (“All [courts] agree that no unexhausted claim may be considered.”). Defendants
must establish this defense by showing that “administrative remedies were, in fact,
available” to Mr. Kristich when his claims arose and that he “failed to exhaust these
remedies.”
Purkey v. CCA Det’n Ctr., 263 F. App’x 723, 726 (10th Cir. 2008). If Defendants
make this showing, the burden shifts to Plaintiff to show a genuine dispute over whether
“an administrative remedy, although officially on the books, [was] not capable of use to
obtain relief.”
Ross v. Blake, 136 S. Ct. 1850, 1859 (2016);
accord Tuckel v. Grover, 660
F.3d 1249, 1254 (10th Cir. 2011).
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Here, Defendants have argued that Plaintiff has not exhausted his administrative
remedies. (ECF No. 79). In doing so, Defendants have filed an affidavit from Kayla
Williams, Grievance Coordinator at CCF, and a copy of the relevant grievance policy.
See
ECF Nos. 79-3 & 79-4. In the affidavit, Ms. Williams avers that she has “access to and
ha[s] reviewed the grievance records and logs from December 25, 2021 (the date Plaintiff
alleges he fell out of his bunk) though [sic] to the period following his departure from
[CCF] on January 13, 2022. There is no record of Plaintiff having submitted a grievance
during the period he was housed at Cimarron.” (ECF No. 79-3).
In response, Plaintiff states that he submitted: (1) two information resolution
forms, dated December 30, 2021 and January 1, 2022 and (2) a formal grievance, dated
January 13, 2022. (ECF No. 85:3). Plaintiff attaches copies of these forms.
See ECF No.
86:4-8. In his response, certified under penalty of perjury, Mr. Kristich argues that CCF
officials failed to respond to any of his exhaustion efforts, rendering an administrative
remedy “unavailable” to him. (ECF No. 85:7-8). At this point, the undersigned finds that
a factual dispute exists regarding whether the CCF administrative remedies were
“available” to Mr. Kristich.
In response to Plaintiff’s arguments, Defendants proffer the affidavit from Ms.
Williams, who states: “After he left Cimarron, Plaintiff Kristich could have submitted
request asking that his Grievance be considered out of time. If he had done so, and had
submitted proper support for his untimely filing, his request might have been granted. I
have reviewed the Cimarron facility grievance records and logs, and Plaintiff did not
submit a request asking that his grievance be submitted out of time.” (ECF No. 79-3:4).
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The undersigned recognizes two fallacies with Defendants response. First, they fail
to address Mr. Kristich’s argument that CCF officials simply failed to respond to Mr.
Kristich’s informal resolution or grievance forms, which he has sworn, under penalty of
perjury, that he submitted to officials. The undersigned notes, that in the grievance
Plaintiff presents to the Court, dated January 13, 2022, the day Plaintiff was transferred
out of CCF, Mr. Kristich states the following to CCF officials:
Medical staff never responded to my informal resolution. I dislocated my
left shoulder/arm and was not taken to the hospital for over a day. Because
of the actions of Nurse Casady and Foster, I am still in extream [sic] pain
and my [sic] need some kind of surgrey [sic]. I am now moving to the BOP.
However, you all here at [CCF] never gave any responce [sic] within 10
day(s) after getting my informal resolution. . . . I put the Address on this
form Where I can be reached However, I will need 15 extra days to respond
by mail. Please send your responces [sic] to 3327 Kerfoot St. #B El Paso,
Texas Att Misty Legans 79904.
(ECF No. 86-8).
Defendants argue that Plaintiff failed to submit a request for his grievance to be
considered out of time, but Mr. Kristich did not submit the grievance until the day he was
transferred. In doing so, Plaintiff provided an address where the response could be sent,
but maintains, however, that no response was forthcoming.
See supra.
Second, although Defendants contend that Plaintiff failed to file a request that his
grievance be considered “out of time,” the policy neither provides guidance on how to
submit an “out of time” grievance nor does it have any provision regarding what inmates
are supposed to do if their grievances go unanswered. If, indeed Plaintiff had submitted
his grievance out of time, the undersigned would assume that a response of that nature
would have been relayed to Mr. Kristich, yet he maintains that it was not. In fact, the
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only part of the CCF Grievance policy that allows for a “Grievance Extension[]” is reflected
on page five of the policy and allows
prison officials an extension of time to respond to a
grievance.
See ECF No. 79-4:5. Based on the policy as submitted by Defendants, Mr.
Kristich was provided no guidance regarding what to do in the event of a non-response
from prison officials to his grievance. The omission is fatal to Defendants’ argument.
In these circumstances,
Leatherman v. CoreCivic, Inc., 2023 WL 2263576 (10th
Cir. 2023) provides guidance. In
Leatherman, the plaintiff had argued unavailability of
administrative remedies because prison officials had failed to respond to his grievances.
The Court rejected the argument, stating:
[A] reviewing authority’s failure to respond does not render administrative
remedies unavailable because the ODOC grievance procedures “provide[ ]
that if an inmate does not receive a response from the warden within thirty
days after submission of the grievance, the inmate may send the grievance
with evidence of its prior submission to an administrative review authority.”
Jernigan, 304 F.3d at 1033. In other words, the ODOC grievance procedures
are the applicable procedural rules and provide an inmate the ability to
proceed with the remedial process notwithstanding an official's failure to
respond. This distinguishes Mr. Leatherman's case from those where courts
have held an official’s failure to respond rendered further exhaustion
unavailable because, unlike here, the inmate had no other options.
Cf., e.g.,
Hayes v. Dahlke, 976 F.3d 259, 271 (2d Cir. 2020) (deeming administrative
remedies exhausted where “there simply were no further steps under the
regulations that [the inmate] could have taken to obtain relief on ... his
grievances”);
Foulk v. Charrier, 262 F.3d 687, 698 (8th Cir. 2001) (holding
further administrative remedies were unavailable where “no evidence in the
trial record ... establishe[d] that [the inmate] could ... have filed a grievance
despite [prison officials’] failure to respond to his [informal resolution
request]”);	
Underwood v. Wilson, 151 F.3d 292, 295 (5th Cir. 1998)
(holding inmate exhausted available administrative remedies where
“nothing in the record ... indicate[d] that there [was] any ... grievance
procedure available to [the inmate] after the time set for a step-three
grievance response”),
abrogated on other grounds as explained in Gonzalez
v. Seal, 702 F.3d 785, 787–88 (5th Cir. 2012).
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The Court should find
Leatherman distinguishable yet instructive to the instant
case. Here, Mr. Kristich has stated that his administrative remedies are “unavailable”
because CCF officials failed to respond to his grievances. That was not the case in
Leatherman, because the prison policy provided an alternative method of exhausting an
administrative remedy in the case of a non-response. However, the Circuit noted other
cases, where prison policy did not offer any alternative, indicating that in such
circumstances, an administrative remedy would be deemed “unavailable,” rendering
exhaustion futile.
In the instant case, CCF policy provides no instruction regarding what an inmate
is supposed to do when/if prison officials fail to respond to a grievance. Although Plaintiff
did not complete the grievance process, because he did not submit an appeal, the appeal
process is delineated by “completing the appeal section of the 14-100B and resubmitting
the grievance.” (ECF No. 79-4:8). Because Mr. Kristich was not provided with a response,
even though he had provided an address in which CCF officials could send a response,
he had no way of filing an appeal. Under these circumstances, the Court should conclude
that: (1) the parties have presented a factual dispute regarding whether Mr. Kristich
attempted to utilize the CCF grievance policy and (2) the administrative process at CCF
was rendered unavailable to Mr. Kritsch, rendering his efforts at exhaustion futile. Based
on these findings, the Court should deny Defendants’ Motion for Summary Judgment
based on Plaintiff’s non-exhaustion of administrative remedies.
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IV. MISCELLANEOUS
In his response to Defendants’ Motion for Summary Judgment, Plaintiff has made
various discovery requests related to the merits of his case.
See ECF No. 85. Plaintiff may
not request discovery in a response brief but must follow the channels set forth in Fed.
R. Civ. P. 26. Plaintiff has also filed a Motion for Discovery titled “Respectful Request for
Discovery.” In this pleading, Mr. Kristich requests various documents, etc. from
Defendants pursuant to Fed. R. Civ. P 36 and 34.
See ECF No. 87.
Discovery requests to either party need not be filed with the court and future
requests for discovery shall be stricken from the record.
See, e.g., Fed. R. Civ. P. 33(a);
34(a); 36(a)(1) (“A
party may serve on any other
party ...” (emphasis added));
id.
5(a)(1)(C), (b)(2) (outlining the allowable methods for service of a discovery paper on a
party). If a party fails to timely comply with a properly-served discovery request, Federal
Rule of Civil Procedure 37(a)(1) provides that,
[o]n notice to other parties and all affected persons, a party may move for
an order compelling disclosure or discovery. The motion must include a
certification that the movant has in good faith conferred or
attempted to confer with the person or party failing to make
disclosure or discovery in an effort to obtain it without court
action.
(emphasis added).
The Local Civil Rules of this Court similarly provide:
With respect to all motions or objections relating to discovery pursuant to
Fed. R. Civ. P. 26 through 37 and 45, this court shall refuse to hear any
such motion or objection unless counsel for movant first advises the court
in writing that counsel personally have met and conferred in good faith and,
after a sincere attempt to resolve differences, have been unable to reach
an accord.
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LCvR37.1. It appears that Defendants have received these requests for discovery the first
time via the filing of Plaintiff's Motion, and thus did not have an opportunity to review,
respond, object, or “meet and confer” with Plaintiff regarding his requests. Therefore, the
Court should deny Plaintiff’s requests for discovery as set forth in ECF No. 87.
V. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
The Court should DENY Defendants’ Motion for Summary Judgment (ECF No.
79) and DENY Plaintiff’s Motion for Discovery (ECF No. 87).
Plaintiff is hereby advised of his right to object to this Report and
Recommendation.
See 28 U.S.C. § 636. Any objection must be filed with the Clerk of the
District Court by February 18, 2025.
See 28 U.S.C. § 636(b)(1); and Fed. R. Civ. P.
72(b)(2). Failure to make timely objection to this Report and Recommendation waives
the right to appellate review of both factual and legal questions contained herein.
Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
VI. STATUS OF THE REFERRAL
This Report and Recommendation terminates the referral.
ENTERED on January 29, 2025.
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