P.K. HOLMES, III, Magistrate Judge.
The following Recommendation has been sent to United States District Judge James M. Moody Jr. You may file written objections to all or part of this Recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objection, and (2) be received by the Clerk of this Court within fourteen (14) days of this Recommendation. By not objecting, you may waive the right to appeal questions of fact.
Plaintiff Lisa Ryan Murphy, an inmate at the Arkansas Department of Correction's (ADC) McPherson Unit, filed a complaint pursuant to 42 U.S.C. § 1983 and an application to proceed in forma pauperis on September 14, 2018. Doc. Nos. 1 & 2. Although Murphy is a three-striker under the three-strikes provision of the Prison Litigation Reform Act ("PLRA"), she was granted leave to proceed in forma pauperis under the PLRA's imminent danger exception. Doc. No. 3. After screening, Murphy's amended complaint (Doc. No. 5) and an addendum (Doc. No. 6) were served on certain defendants. See Doc. No. 7. Other defendants were dismissed after screening, for failure to serve, or on Murphy's motion. See Doc. Nos. 22, 26, 88, 111 & 120. The remaining defendants are: Dr. Joseph Hughes, APN Betty Hutchinson, Dr. Donald Pate, and Dr. Jonathan Laryea.
Murphy alleges she had surgery in June 2018, that the surgery failed, and that she subsequently began to profusely bleed and had 10 inches of her colon hanging out. Doc. No. 5 at 1-2. She claims that Dr. Laryea (originally spelled Loria) refused to see her and that Dr. Pate told her she was fine after only briefly examining her. Id. at 3-4. She further claims that medical professionals at the McPherson Unit discontinued her treatment for this issue. Id. at 4-5.
Before the Court is a motion for summary judgment, a brief in support, and a statement of facts filed by Dr. Hughes and Hutchinson (Doc. Nos. 84-86) as well as a motion for summary judgment, a brief in support, and a statement of facts filed by Drs. Pate and Laryea (Doc. Nos. 92-94). The defendants claim that Murphy did not exhaust available administrative remedies with respect to her claims against them before she filed this lawsuit. Murphy filed responses to the defendants' motions (Doc. Nos. 96-97). Drs. Pate and Laryea filed a reply (Doc. No. 98); Murphy filed another response and addendum (Doc. Nos. 99-100); Drs. Pate and Laryea filed a sur-reply (Doc. No. 103); and Murphy filed another response (Doc. No. 108). For the reasons described herein, the undersigned recommends that the defendants' motions for summary judgment be granted.
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is proper if "the movant shows that there is no genuine dispute as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a); Celotex v. Catrett, 477 U.S. 317, 321 (1986). When ruling on a motion for summary judgment, the court must view the evidence in a light most favorable to the nonmoving party. Naucke v. City of Park Hills, 284 F.3d 923, 927 (8th Cir. 2002). The nonmoving party may not rely on allegations or denials, but must demonstrate the existence of specific facts that create a genuine issue for trial. Mann v. Yarnell, 497 F.3d 822, 825 (8th Cir. 2007). The nonmoving party's allegations must be supported by sufficient probative evidence that would permit a finding in his favor on more than mere speculation, conjecture, or fantasy. Id. (citations omitted). An assertion that a fact cannot be disputed or is genuinely disputed must be supported by materials in the record such as "depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials . . .". Fed. R. Civ. P. 56(c)(1)(A). A party may also show that a fact is disputed or undisputed by "showing 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)(B). A dispute is genuine if the evidence is such that it could cause a reasonable jury to return a verdict for either party; a fact is material if its resolution affects the outcome of the case. Othman v. City of Country Club Hills, 671 F.3d 672, 675 (8th Cir. 2012). Disputes that are not genuine or that are about facts that are not material will not preclude summary judgment. Sitzes v. City of West Memphis, Ark., 606 F.3d 461, 465 (8th Cir. 2010).
The defendants argue they are entitled to summary judgment because Murphy failed to exhaust available administrative remedies as to her claims against them before she filed this lawsuit. In support of their motions,
The Prison Litigation Reform Act (PLRA) requires an inmate to exhaust prison grievance procedures before filing suit in federal court. See 42 U.S.C. §1997e(a); Jones v. Bock, 549 U.S. 199, 202 (2007); Burns v. Eaton, 752 F.3d 1136, 1141 (8th Cir. 2014). Exhaustion under the PLRA is mandatory. Jones v. Bock, 549 U.S. at 211; Hammett v. Cofield, 681 F.3d 945, 949 (8th Cir. 2012). "[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). The PLRA does not prescribe the manner in which exhaustion occurs. See Jones v. Bock, 549 U.S. at 218. It merely requires compliance with prison grievance procedures to properly exhaust. See id. Thus, the question as to whether an inmate has properly exhausted administrative remedies will depend on the specifics of that particular prison's grievance policy. See id.
Pursuant to the ADC's grievance policy, inmates are provided Unit Level Grievance Forms as part of the Inmate Grievance Procedure. See Doc. No. 86-1 at 6. To resolve a problem, an inmate must first seek informal resolution by submitting a Step One Unit Level Grievance Form within 15 days after the occurrence of the incident. Id. at 7. Inmates are to "specifically name each individual involved for a proper investigation and response to be completed by the ADC." Id. at 8. An inmate must be "specific as to the substance of the issue or complaint to include the date, place, personnel involved or witnesses, and how the policy or incident affected the inmate submitting the form." Id. at 7-8. A problem solver investigates the complaint and provides a written response at the bottom of the form. Id. at 8-9. If the inmate is not satisfied with the resolution or the problem solver does not respond within three working days, he may then complete Step Two of the grievance procedure and submit the form as a formal grievance. Id. at 10. If a formal grievance is medical in nature, it is forwarded to the appropriate medical personnel for response. Id. at 11. If the inmate receives no response, or if the inmate is not satisfied with the response, the inmate can appeal to the Deputy Director for Health and Correctional Programs. Id. at 12-14. Once the Deputy Director responds or the appeal is rejected, the grievance process is exhausted. Id. at 14. According to the ADC's grievance policy, the entire grievance procedure should be completed within 76 working days absent an extension or unforeseen circumstances. Id. at 15. The grievance policy specifically states that inmates must exhaust administrative remedies at all levels of the procedure before filing a federal civil rights lawsuit. Id. at 19.
Murphy brings Eighth Amendment and medical negligence claims against the defendants based on an alleged denial of medical treatment after her June 21, 2018 colon surgery allegedly failed. Doc. No. 5. Byers reviewed Murphy's grievance records and found that she did not file any medical grievance after June 21, 2018, for which she received an appeal response before filing this lawsuit on September 14, 2018. ADC policy provides that exhaustion does not occur until a written decision is issued on the appeal or the appeal is rejected.
Murphy acknowledges that she did not complete the grievance process before filing her lawsuit. See Doc. No. 96 at 12 ("Plaintiff asserts that she did not exhaust her administrative remedies prior to filing said suit, however, her life was in serious danger."). Murphy attaches numerous grievances to her response. Most were filed after she initiated this lawsuit, but none received an appeal response before the lawsuit was filed. The earliest appeal response is dated October 30, 2018 (see appeal responses at Doc. No. 96 at 28, 30, 35, 38, 42, 45, 50, 54, 59 & 65). Murphy argues that the Court may stay her case to allow her time to exhaust administrative remedies; that administrative remedies were unavailable to her; and that she cannot grieve Drs. Pate and Layrea via the ADC grievance procedure because they are not employed or contracted by the ADC. Each of Murphy's arguments is discussed below.
Murphy argues that the Court has discretion to stay her case while she exhausts her administrative remedies. This is incorrect. See Jones v. Bock, 549 U.S. at 211 ("There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court."); Porter v. Nussle, 534 U.S. at 524 ("Once within the discretion of the district court, exhaustion in cases covered by § 1997e(a) is now mandatory."). Furthermore, there is no imminent danger exception to the PLRA's exhaustion requirements. See Johnson v. Russell, No. 5:15CV00129-JLH-JJV, 2015 WL 4506412, at *3 (E.D. Ark. July 23, 2015) ("The Eighth Circuit has excepted inmates from PLRA exhaustion compliance in two circumstances, namely `when prison officials have prevented prisoners from utilizing the procedures, or when officials themselves have failed to comply with the grievance procedures.'") (quoting Gibson v. Weber, 431 F.3d 339, 341 (8th Cir. 2005) (internal citations omitted)). Additionally, the ADC grievance procedures do not excuse the exhaustion requirement when an inmate claims that his life is in danger; instead, an inmate is instructed to indicate that his or her grievance is an emergency by filling in the date by the "Emergency Grievance" line on the grievance form. See Doc. No. 86-1 at 8. Of the seven grievances identified by Murphy which were submitted prior to the date she filed this lawsuit, only one was marked emergency. See Doc. No. 96 at 29, 36, 40, 44, 72, 75 & 78. The emergency grievance was not returned to Murphy until September 24, 2018. Id. at 79.
Murphy asserts that in other cases she has filed, the Court stayed her case to allow her time to complete her administrative remedies. This is also incorrect. Murphy cites 4:15-cv-00005 and 4:11-cv-00084. Doc. No. 96 at 4. Those cases were initially filed in the U.S. District Court for the Eastern District of Arkansas and then transferred to the U.S. District Court for the Western District of Arkansas. Case number 4:11-cv-00084 became case number 6:11-cv-06091 in the Western District. At no time was it stayed (see docket sheet for 6:11-cv-06091) (attached), and some of Murphy's claims were dismissed for failure to exhaust her administrative remedies (see Doc. No. 64 in 6:11-cv-06091) (attached). The Court's ruling was subsequently affirmed on appeal (see Doc. No. 74-2 in 6:11-cv-06091) (attached).
Case number 4:15-cv-00005 became case number 6:15-cv-06001 in the Western District. That case was stayed while Murphy completed her appeal in 6:11-cv-06091 (see Doc. No. 13 in 6:15-cv-06001) (attached). Murphy had sought to relitigate the claims she had brought in her 2011 case, but she could still not prove that her claims were exhausted, and the Court dismissed her claims with prejudice because they were time-barred in any case (see Doc. No. 22 in 6:15-cv-06001) (attached).
Murphy generally asserts that the ADC grievance procedure was unavailable to her because she "filed numerous grievances that never got answered, never had the proper attachments, or was wrongly `neglected' for one reason or another." Doc. No. 96 at 5. Murphy attaches to her complaint a number of grievances that were rejected. Id. at 69-98.
The Supreme Court in Booth v. Churner held that "exhaustion is required where administrative remedies are available even if the available administrative remedies do not provide the precise, or full, relief sought." 532 U.S. 731, 738-39 (2001). The Eighth Circuit has found administrative remedies to be unavailable where prison officials prevented inmates from utilizing the grievance procedures or where officials failed to comply with such procedures. See Gibson v. Weber, 431 F.3d 339 (8th Cir. 2005); Miller v. Norris, 247 F.3d 736 (8th Cir. 2001). The United States Supreme Court held that an administrative remedy is unavailable when "it operates as a simple dead end," or when it "might be so opaque that it becomes, practically speaking, incapable of use." Ross v. Blake, 136 S.Ct. 1850, 1859 (2016).
Of the 11 grievances Murphy claims were wrongfully rejected, only three were submitted before she filed this lawsuit. Those were MCP18-01172, MCP18-01173, and MCP18-01143. These grievances were submitted the week before she filed this lawsuit and rejected after she filed this lawsuit. Doc. No. 96 at 72-79. Accordingly, even if these grievances had not been rejected, they could not serve to exhaust her claims in this case because she could not complete the grievance procedure before filing this lawsuit. Furthermore, Murphy did eventually exhaust numerous grievances raising the same issues raised in this lawsuit — she received at least nine appeal responses to those grievances. See id. at 28 (MCP18-01174 grieving Dr. Pate's actions), 30 (MCP18-01078 grieving Hutchinson's actions), 35 (MCP18-01305 grieving Dr. Laryea's actions), 42 (MCP18-01093 grieving Dr. Hughes' actions), 45 (MCP18-01098 grieving Hutchinson's actions), 50 (MCP18-01279 grieving Warden Bradley for not intervening in Murphy's medical care), 54 (MCP18-01370 grieving Dr. Hughes and Hutchinson's actions), 59 (MCP18-01379 grieving Dr. Hughes' actions), & 65 (MCP18-01369 describing a visit to Dr. Barr and grieving Dr. Hughes and Hutchinson for not continuing pain medication). Clearly, the ADC grievance procedure was available to Murphy and utilized by her. She simply did not complete the process before filing this lawsuit.
Finally, Murphy argues that the ADC grievance procedure is inapplicable to Drs. Pate and Laryea because they are not employed by the ADC. See Doc. No. 99 at 3. In support of her argument, Murphy attaches a copy of the appeal response to MCP18-01174 in which Director Rory Griffin responded: "Medical treatment that is provided during an encounter with an outside provider is non-grievable as it is beyond the control of the Department of Correction due to the outside provider not being hired or contracted by the Department of Correction." Doc. No. 100 at 2. Murphy also claims that she submitted complaints to the medical administrators at UAMS with respect to Dr. Laryea and to Harris Hospital with respect to Dr. Pate. Doc. No. 99 at 3-4. However, Murphy provides no evidence to support that claim.
Drs. Pate and Laryea argue that despite the language in this one response, the ADC grievance procedure does not preclude an inmate from grieving the tests and treatment recommended by outside providers. Specifically, the grievance procedure provides that an inmate may submit grievances concerning an "action of an employee, contractor, or volunteer at his or her facility that personally affects the inmate." Doc. No. 86-1 at 4. Drs. Pate and Laryea assert that regardless of the language in the response to MCP18-01174, the grievance exhausted Murphy's claims as to them on the date the appeal response was received (i.e., November 28, 2018).
The Court agrees. The treatment provided by an outside provider that contracts with the ADC may be grieved according to the ADC's grievance policy. In fact, another grievance submitted by Murphy was responded to on the merits with no mention of her not being able to grieve an outside provider. In MCP18-01305, Murphy grieved Dr. Layrea and received an appeal response on December 19, 2018. See Doc. No. 96 at 35. The ADC grievance policy was available for Murphy to grieve the actions of Drs. Pate and Layrea; she simply did not exhaust those grievances before she filed this lawsuit.
Murphy did not submit a medical grievance relating to the issues in her complaint until just before she filed her complaint. She did not complete the appeal process with respect to any relevant grievance before filing this lawsuit. Accordingly, the undersigned recommends that the defendants' motions for summary judgment (Doc. No. 84 & 92) be granted. Murphy's claims should be dismissed without prejudice for failure to exhaust available administrative remedies.
Before the Court is the Report and Recommendation filed July 29, 2014, by the Honorable James R. Marschewski, United States Magistrate Judge for the Western District of Arkansas. ECF No. 59. Judge Marschewski recommends that Defendants' Motion for Summary Judgment (ECF No. 48) be granted. Plaintiff has responded with objections, and the Court has reviewed the objections. ECF Nos. 62 and 63. The Court, being well and sufficiently advised, finds that Plaintiff's objections offer neither law nor fact requiring departure from the Report and Recommendation.
Accordingly, Defendants' Motion for Summary Judgment (ECF No. 48) is
Appeal from United States District Court for the Western District of Arkansas — Hot Springs
Before SMITH, BOWMAN, and COLLOTON, Circuit Judges.
PER CURIAM.
Arkansas inmate Lisa Murphy appeals following the district court's
Plaintiff, Lisa Murphy, submitted this pro se action for filing on January 6, 2015. (Doc. 1) Currently before the Court is Plaintiff's Motion to Stay her case pending completion of an Appeal to the Eighth Circuit on a prior case (6:11-cv-06091-SOH). (Doc. 12)
Plaintiff's Motion to Stay is GRANTED. The Clerk is DIRECTED to administratively terminate this case.
In the event Plaintiff wishes to reopen this case, she will need to file a Motion to Reopen at that time.
Plaintiff Lisa Murphy filed this case pro se pursuant to 42 U.S.C. § 1983 on January 6, 2015. (Doc. 1). This matter is before the Court for preservice screening under the provisions of the Prison Litigation Reform Act. Pursuant to 28 U.S.C. § 1915A, the Court shall review complaints in civil actions in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a).
Plaintiff filed her complaint on January 6, 2015. (Doc. 1). She filed an amended complaint on January 27, 2015. (Doc. 7). In both complaints Plaintiff failed to provide any details of her claim, instead writing "see attached." There were no attachments. On March 16, 2015, the Court entered an order directing Plaintiff to file the supporting documents referenced in her complaint. (Doc. 11). On April 20, 2015, Plaintiff filed a motion to dismiss her case until her appeal in case number 6:11-cv-06091 was decided by the Eighth Circuit. (Doc. 12). The Court entered an order to stay her case on July 29, 2015. (Doc. 13).
On August 4, 2015, Plaintiff filed a motion to reopen this case. (Doc. 14). This motion was granted on October 27, 2015. (Doc. 15). Plaintiff filed her supplement on November 6, 2015. (Doc. 16). The supplement filed was the complaint from her prior case number 6:11-cv-06091. Plaintiff drew a line through the case number and wrote in the case number for this case.
In case number 6:11-cv-06091 Plaintiff raised a number of claims, including one for sexual assault and harassment while incarcerated in the Hot Springs County Detention Center in May of 2011. Her sexual assault and harassment claim was dismissed for failure to exhaust administrative remedies because she had not filed any grievances concerning the event. This claim was dismissed without prejudice. Plaintiff's other claims in the case were dismissed with prejudice. The dismissals were affirmed by the Eighth Circuit on July 6, 2015. Murphy v. Ledbetter, 608 Fed. App'x 440 (8th Cir. 2015). In her motion to reopen this case, Plaintiff alleged she has "since filed and sent her grievance to each and every defendant listed in her case." (Doc. 14, p. 1).
On February 26, 2016 the Court entered an order directing Plaintiff to complete an addendum. In the addendum, Plaintiff was directed to provide evidence of her completed grievances regarding the alleged May 2011 sexual assault and harassment claim. In response, Plaintiff attached an affidavit dated September 23, 2014, which she states is the form she used as her grievance. The affidavit states "[t]hat she has filed a civil action on a number of employees. . for sexual assault and harassment." (Doc. 21, p. 5). Plaintiff filed this same affidavit in her Eighth Circuit appeal in the 6:11-cv-6091 case.
Pursuant to the screening provisions of the PLRA, the Court must determine whether the causes of action stated in Plaintiff's Complaint (1) are frivolous or malicious, (2) fail to state claims upon which relief may be granted, or (3) seek monetary relief against a defendant who is immune from such relief. See 28 U.S.C. §§ 1915(e)(2)(B) & 1915(A). A complaint is frivolous if it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that a defendant, acting under color of state law, deprived him of a right, privilege, or immunity secured by the United States Constitution or by federal law. West v. Atkins, 487 U.S. 42, 48 (1988).
Plaintiff's sexual assault and harassment claim for events alleged to have occurred in May, 2011 is barred by the doctrine of res judicata, her failure to exhaust administrative remedies, and the statute of limitations.
It is well-settled that a court may dismiss a case sua sponte based upon the doctrine of res judicata:
Arizona v. California, 530 U.S. 392, 412 (2000) supplemented, 531 U.S. 1 (2000) (quoting United States v. Sioux Nation, 448 U.S. 371, 432 (1980) (Rehnquist, J., dissenting) (citations omitted); see also Hanig v. City of Winner, S.D., 527 F.3d 674, 676 (8th Cir. 2008) ("When the second action seeks redress for the same wrong, res judicata bars relitigation of a claim or an issue `actually litigated or which could have been properly raised and determined in a prior action.'")
Here, Plaintiff is trying to file her 2011 case for the second time by literally filing the same documents, complete with the original file-stamps. Plaintiff's 2011 case was dismissed at summary judgment. With the exception of the sexual assault and harassment claim, her 2011 claims were dismissed with prejudice. Plaintiff appealed the dismissal to the Eighth Circuit, where the case dismissal was affirmed.
The Court in this case permitted Plaintiff the opportunity to provide evidence that she had actually exhausted her administrative grievances as to the sexual assault and harassment in the form of an addendum. Plaintiff had no new evidence. Instead, she submitted a 2014 affidavit as her "grievance." This affidavit had been filed in the appeal for her 2011 case. The affidavit specifically stated she had already filed a civil lawsuit for the sexual assault and harassment claims. Therefore, the affidavit cannot constitute evidence of an exhausted grievance because it was created after she filed her § 1983 lawsuit. See Section 1997e(a) of the PLRA, which provides: "[n]o 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).
Even if Plaintiff had provided a copy of a valid exhausted grievance, her claim would now be time-barred. The accrual date of a § 1983 cause of action is controlled by federal law. Wallace v. Kato, 549 U.S. 384 (2007). Accrual generally occurs when the Plaintiff has "a complete and present cause of action." Id. at 388. This is met when "the Plaintiff can file suit and obtain relief." Id. The statute of limitations for § 1983 claims is the state statute of limitations for personal injury actions. Morton v. City of Little Rock, 934 F.2d 180, 183 (1991) (citing Wilson v. Garcia, 471 U.S. 261 (1985). In Arkansas, this period is three years. Id. (referencing Ark. Code Ann. § 16-56-105.) Any possible equitable tolling is also controlled by state law, unless that law is inconsistent with the policies behind § 1983. Board of Regents of University of State of N.Y. v. Tomanio, 446 U.S. 478 (1980); Hughes v. Sheriff of Fall River County Jail, 814 F.2d 532 (8th Cir. 1987).
Arkansas does not provide for tolling of the statute of limitations while an inmate pursues state or other remedies. See Ark. Code. Ann. § 16-56-126 (tolling provided for cases of nonsuit or reversal of judgment); § 16-56-116 (tolling provided for individuals who are minors or insane at the time of accrual); § 16-56-120 (tolling provided for improper acts of a party which prevent commencement of action); § 16-56-121 (tolling provided for absconding debtors); § 16-56-125 (tolling provided for unknown tortfeasors). The failure to provide for tolling during the pendency of related but independent state actions does not render the state's tolling rules inconsistent with § 1983. Board of Regents of University of State of N.Y. v. Tomanio, 446 U.S. at 478.
Even when the Court gives Plaintiff the benefit of the doubt and considers the accrual date as the filing date for her prior case, Plaintiff's claim is time-barred. She filed her prior case on December 14, 2011. She therefore had until December 14, 2014 to file another claim for the alleged May 2011 sexual assault and harassment. She filed this case on January 6, 2015. Because her claim was filed after the statute of limitations had passed, her claim is time-barred. Nor is Plaintiff eligible for equitable tolling pursuant to Ark. Code. Ann. § 16-56-126. Plaintiff pursued an appeal for her case 6:11-cv-6091 in the Eighth Circuit, which affirmed the dismissal of her case.
For these reasons, Plaintiff's Complaint will be DISMISSED WITH PREJUDICE.
Judgment will be entered accordingly.
IT IS SO ORDERED this 1st day of July, 2016.
