United States District Court, D. Montana, Helena Division
ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE
Johnston United States Magistrate Judge
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.)
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.
SUMMARY JUDGMENT STANDARD
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.
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.
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.
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
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).
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
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.)
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.)
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.)
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.)
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.)
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
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 ...