United States District Court, S.D. Mississippi, Western Division
DENNIS M. GALLIPEAU, No. 14672-171, Plaintiff
LUISA MARTINEZ, M.D., Defendant.
MEMORANDUM OPINION AND ORDER
KEITH STARRETT, District Judge.
For the reasons stated below, the Court grants Defendant's Motion for Summary Judgment . The Court will enter a separate judgment in accordance with Rule 58.
Defendant's Amended Motion to Dismiss or for Summary Judgment , Plaintiff's Motion for an Extension of Time , and Plaintiff's Motion to Compel  are denied as moot.
This is a Bivens action for the alleged violation of a prisoner's Eighth Amendment right to adequate medical care. Plaintiff claims that he has a torn rotator cuff, and he believes that he should have been provided a referral to an orthopedic specialist, an MRI, and neurological testing. He claims that Defendant refused to provide these treatments and/or delayed treatment in deliberate indifference to his serious medical needs.
Defendant filed a Motion for Summary Judgment . Plaintiff responded to it with briefing and evidence [41, 42, 43, 55, 61]. Therefore, Defendant's Motion for Summary Judgment  is ripe for review.
B. Standard of Review
Defendant's motion concerns Plaintiff's exhaustion of administrative remedies. "Exhaustion resembles personal jurisdiction and venue in that it is an affirmative defense that allows defendants to assert that plaintiffs have not invoked the proper forum for resolving a dispute." Dillon v. Rogers, 596 F.3d 260, 272 (5th Cir. 2010). Therefore, "judges may resolve factual disputes concerning exhaustion without the participation of a jury." Id.
C. Failure to Exhaust Administrative Remedies
"The Eighth Amendment requires that inmates receive adequate medical care. Prison officials may violate this mandate when they exhibit deliberate indifference to a prisoner's serious medical needs." Coleman v. Sweetin, 745 F.3d 756, 765 (5th Cir. 2014) (punctuation and citation omitted). Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388, 29 L.Ed.2d 619, 91 S.Ct. 1999 (1971), created a cause of action for the violation of constitutional rights by federal officials in their individual capacity. Affiliated Prof'l Home Health Care Agency v. Shalala, 164 F.3d 282, 286 (5th Cir. 1999); Garcia v. United States, 666 F.2d 960, 961 (5th Cir. 1982).
Defendant argues that Plaintiff's claims must be dismissed for failure to exhaust administrative remedies. The Prison Litigation Reform Act ("PLRA") requires that prisoners exhaust all available administrative remedies before filing a civil action challenging the conditions of their confinement, 42 U.S.C. § 1997e(a), and the requirement applies to Bivens suits. Porter v. Nussle, 534 U.S. 516, 524, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002).
The Fifth Circuit takes "a strict approach" to the PLRA's exhaustion requirement. Johnson v. Ford, 261 F.App'x 752, 755 (5th Cir. 2008). "Proper exhaustion is required, meaning that the prisoner must not only pursue all available avenues of relief; he must also comply with all administrative deadlines and procedural rules." Lane v. Harris County Med. Dep't, 266 F.App'x 315, 315 (5th Cir. 2008). "[M]ere substantial compliance with administrative remedy procedures" is insufficient. Flores v. Lappin, No. 13-41058, 2014 U.S. App. LEXIS 16635, at *2 (5th Cir. Aug. 28, 2014). The prisoner must complete the available administrative review process. Lane, 266 F.App'x at 315. The Fifth Circuit described the process:
The BOP has a four-step process for resolving grievances by inmates. First, an inmate must attempt to informally resolve the issue with the staff. 28 C.F.R. § 542.13(a).... [A]n inmate must attempt informal resolution by filing a form BP-8. Second, if informal resolution is unsuccessful, the inmate must submit a formal written Administrative Remedy Request (form BP-9) to the warden within twenty days after the date on which the basis for the request occurred. 28 C.F.R. § 542.14. Third, if the inmate is not satisfied with the warden's response, he may submit an appeal (form BP-10) to the Regional Director within twenty days of the date of the warden's response. 28 C.F.R. § 542.15. Fourth, if the inmate is not satisfied with the Regional Director's response, the inmate may submit an appeal (form ...