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Kelley v. Gedney

United States District Court, D. Nevada

August 14, 2017

JAMES C. KELLEY, Plaintiff,
v.
DR. KAREN GEDNEY, et al., Defendants.

          ORDER REGARDING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE WILLIAM G. COBB

          MIRANDA M. DU UNITED STATES DISTRICT JUDGE

         I. SUMMARY

         Before the Court is the Report and Recommendation of United States Magistrate Judge William G. Cobb (“R&R”) (ECF No. 44), recommending granting Defendants' motion to dismiss/motion for summary judgment (“Motions”) (ECF Nos. 23, 24) based on Plaintiff's failure to exhaust his administrative remedies. The Court has reviewed Plaintiff's objection (ECF No. 45) and Defendants' response (ECF No. 46). For the reasons discussed herein, the Court adopts the R&R.

         II. BACKGROUND

         After screening pursuant to 28 U.S.C. § 1915A, the Court permitted Plaintiff to proceed on his Eighth Amendment claim based on his allegations that Defendants have deliberately denied or interfered with him receiving proper treatment of two serious medical conditions-an umbilical hernia and hepatitis C. (ECF No. 11.)

         As relevant to Defendant's Motion, the facts relating to Plaintiff's grievance filings are not in dispute. Administrative Regulation (“AR”) 740 establishes NDOC's grievance process with the various steps-informal level, first level and second level-set out in AR 740.05 through 740.07. (ECF No. 23-8 at 5-9.) AR 740.09.2.F provides, in pertinent part, that “[i]t is considered an abuse of the inmate grievance procedure when an inmate files a grievance that . . . contains two more appropriate issues.” (Id. at 11.) AR 740.09.4 provides that the event of such an abuse, “[t]he inmate shall not be given additional time to re-submit the grievance in proper form.” (Id.) AR 740.05.4.A gives an inmate six months to file a grievance concerning a medical claim. (Id. at 6.)

         On June 9, 2015, Plaintiff submitted grievance number 2006302478 at the informal grievance level where he requested surgery for his hernia and Hepatitis C treatment pill:

Around the last week of May 2015 I was seen at NNCC's RMF by RN Manalang regarding my medical kite requesting surgical treatment for my hernia and the new hepatitis C pill treatment available to inmates at NNCC. RN Manalang ordered a blood test be done for my Hep C, and referred that I see Dr. King (NDOC's surgical contractor medical specialist) for surgical treatment for my stomach hernia. Meanwhile, my blood test came back indicating that I have Hep-C. On June 4, 2015 I was seen by Dr. Gedney who said I was to die of cigarette related symptoms before I would Hep-C, and basically refused to refer surgery to NNCC's Utilization Review Panel or provide the Hep-C treatment pill that would not only prolong my life span but prevent any [ ] Hep-C transfer to other inmates. On June 8, 2015, I was scheduled to see Dr. King and when I went to the RMF to see him, I was stopped and informed by RN Mellissa-in front of Dr. King, Dr. Gedney cancelled my appointment with Dr. King. I am being denied adequate medical care for my serious medical need of hernia surgery and Hep-C treatment that is available to inmates at NNCC, thus my Eighth Amendment right to adequate medical care is being violated by Dr. Gedney.

(ECF No. 23-1 at 2.) He received a response, denying his grievance, as follows:

Mr. Kelley, per Medical Directive #219 you do not meet the criteria for Hepatitis C treatment at this time. Per the physician[‘]s notes, your Hepatitis C should be monitored every year, and that no treatment is needed at this time. Per physician[‘]s notes, you have a small umbilical hernia, and surgery at this time would be elective. Elective surgeries are not performed by the NDOC.

(Id.) Plaintiff filed a first level grievance dated June 30, 2015, explaining his disagreement. (Id.) In response, Plaintiff received a document entitled “Nevada Department of Corrections Memorandum” (“Memo”) dated July 7, 2015. (ECF No. 37 at /// 52.) The Memo notified Plaintiff that his “grievance is being returned to [him] for the following reason(s):

Per AR 740.09 2 F, “It is considered abuse of the inmate grievance procedure when an inmate files a grievance that … contains two or more appropriate issues.” Your grievance involves both Hep C treatment and hernia surgery. Please split this into two separate grievances.

(Id; ECF No. 23-1 at 2.) The bottom of the Memo included boilerplate instructions: “You may resubmit your grievance after correcting the above deficiencies. Failure to re-submit the grievance through the prescribed timeframe shall constitute abandonment.” (ECF No. 37 at 52.) Plaintiff then filed a second level grievance, voicing his disagreement with the Memo. (ECF No. 23-1 at 3; ECF No. 37 at 54-62.) On August 20, 2015, Plaintiff's second level grievance was rejected; and he was again told to “split this into two separate grievances.” (ECF No. 23-1 at 3.) Thus, while Plaintiff received a response on the merits to his grievance at the informal grievance level, his first and second level grievance was rejected on procedural ground-the inclusion of two issues in violation of AR 740.09.2.F.

         Defendants' Motions seek dismissal of Plaintiff's claim for failure to exhaust administrate remedies. (ECF Nos. 23, 24.) The Magistrate Judge agrees with Defendants and recommends dismissal of Plaintiff's claim with prejudice because the time ...


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