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Van Uden v. Solemenson

United States District Court, D. Montana, Helena Division

June 24, 2019

HERMAN VAN UDEN, Plaintiff,
v.
ASSISTANT WARDEN JIM SOLOMENSEN, DR. REES and INFIRMARY WORKER JANET, Defendants.

          ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

          John Johnston United States Magistrate Judge

         Pending is Defendant Garcia and Salmonsen's Motion for Summary Judgment on Plaintiff Herman Van Uden's denial of medical care claims. (Doc. 24.) Defendant Garcia contends that Mr. Van Uden failed to exhaust his administrative remedies with regard to his claims against her. Defendant Salmonsen argues the undisputed facts show that he does not supervise healthcare professionals in the infirmary or have authority over medical decisions. (Doc. 25.)

         Having considered the parties' arguments and submission, Defendants have established there is no genuine dispute as to any material fact and Defendants' motions for summary judgment should be granted. Defendants Garcia and Salmonsen should be dismissed.

         I. SUMMARY JUDGMENT STANDARD

         Summary judgment is appropriate when the moving party “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). Under summary judgment practice, “[t]he moving party initially bears the burden of proving the absence of a genuine issue of material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving party may accomplish this by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials” or by showing that such materials “do not establish the absence or presence of a genuine dispute, or that the adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1)(A), (B).

         “Where the non-moving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party's case.” Oracle Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325); see also Fed.R.Civ.P. 56(c)(1)(B). Summary judgment should be entered, “after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” See Celotex, 477 U.S. at 322. “[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Id. at 323. In such a circumstance, summary judgment should be granted, “so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied.” Id.

         If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See Fed.R.Civ.P. 56(c)(1); Matsushita, 475 U.S. at 586 n.11. “A plaintiff's verified complaint may be considered as an affidavit in opposition to summary judgment if it is based on personal knowledge and sets forth specific facts admissible in evidence.” Lopez v. Smith, 203 F.3d 1122, 1132 n.14 (9th Cir. 2000) (en banc). The opposing party must demonstrate that the fact in contention is material, i.e., a fact “that might affect the outcome of the suit under the governing law, ” and that the dispute is genuine, i.e., “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).

         “In evaluating the evidence to determine whether there is a genuine issue of fact, ” the court draws “all inferences supported by the evidence in favor of the non-moving party.” Walls v. Cent. Costa Cnty. Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011). It is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586 (citations omitted).

         By notice provided on January 11, 2019 (Doc. 27), Mr. Van Uden was advised of the requirements for opposing a motion brought pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998)(en banc); Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).

         II. FACTS[1]

         Mr. Van Uden is an inmate of the Montana Department of Corrections (DOC) currently housed at the Montana State Prison (MSP). Excluding hospital stays, Mr. Van Uden has been housed at MSP since February 7, 2017. (Defendants' Statement of Undisputed Facts, Doc. 26 (hereinafter “SUF”) at ¶ 1.)

         The Montana State Prison (MSP) Grievance Program is available to address all issues that adversely affect an inmate “including, but not limited to, health care, staff conduct, written policy or procedures, and other standard grievance matters.” (SUF at ¶ 2.) The grievance program excludes only two categories of complaints: (1) those falling under the jurisdiction of “outside entities not under the jurisdiction of the Department of Corrections” and (2) “[c]lassification, disciplinary, and any other decision which is subject to a separate appeal procedure or administrative review process.” (SUF at ¶ 3.)

         For non-emergency health services grievances, the Grievance Program consists instead of the following four steps: (1) an informal resolution form directed to the unit manager (or designee), (2) a formal grievance directed to the Facility Health Administrator, (3) an appeal to the Department Medical Director, and (4) an appeal to the DOC Director or designee. (SUF at ¶ 7.)

         At MSP, formal health services grievances are typically addressed by the MSP Director of Nursing; appeals of formal health services grievances are addressed by the Medical Services Bureau Chief; and the Clinical Services Division Administrator, Connie Winner, is typically designated to address Director-level health services appeals. The MSP Warden does not receive or address health services grievances or appeals. (SUF at ¶ 8.) A grievance is handled as a health services grievance if it involves health services judgment. (SUF at ¶ 9.)

         At each level, the Inmate Grievance Program provides that “[i]f an inmate's action requested is granted, he will not be allowed to appeal the decision, and it is understood he has exhausted all administrative remedies.” (SUF at ¶ 10.) If an inmate's requested action is not granted, then the DOC Director's response is the final step that exhausts all administrative remedies available to the inmate. (SUF at ¶ 11.)

         Mr. Van Uden was educated about the grievance program and its requirements as part of MSP's PREA orientation which Mr. Van Uden attended on March 1, 2017. (SUF at ¶ 13.) Mr. Van Uden has demonstrated his ability to use the grievance program. Between February 7, 2017, and May 22, 2018, Mr. Van Uden has filed more than ten formal grievances and at least 25 informal resolutions. Of those, he has appealed three to the Director of the Department of Corrections, the final step in the grievance procedure. Mr. Van Uden obtained at least partial relief in at least 15 of those grievances or informal resolution requests. (SUF at ¶ 19.)

         Mr. Van Uden's grievance file contains only one grievance plausibly embracing his claim against Nurse Garcia. (SUF at ¶ 20.) In an informal resolution form dated December 24, 2017, Mr. Van Uden complained:

I went to the infirmary on 12-19-17 A nurse started yelling at me for nothing I sed [sic] to her whatever that is all I sed [sic] to her. Then she came back out from where they stand there doing nething [sic] but tocking [sic] she told me to go back to my unit I did. Now I am in the hole over her lieing [sic]. I did not do what she sed [sic] I did. Why can they do this to people. My celly was right there and he will tell you just what happen at the infirmary. this is not right!

He requested as relief: “I want out of the hole and I want my x-mess pakig [sic] that I payd [sic] for or put the money back on ...


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