United States District Court, E.D. Kentucky, Southern Division
MEMORANDUM OPINION & ORDER
K. CALDWELL, CHIEF JUDGE.
Jose Cristobal Cardona is an inmate confined by the Bureau of
Prisons (“BOP”) at the United States
Penitentiary-Big Sandy (“USP-Big Sandy”) located
in Inez, Kentucky. Proceeding without an attorney, Cardona
filed an Amended Complaint [R. 11] against Defendant Sherry
Slone, USP-Big Sandy's Health Service Administrator
(“HSA”), in which he asserts constitutional
claims under 28 U.S.C. § 1331, pursuant to the doctrine
announced in Bivens v. Six Unknown Federal Narcotics
Agents, 403 U.S. 388 (1971). Cardona has previously been
granted in forma pauperis status in this proceeding.
Slone has now filed a Motion to Dismiss, or in the
Alternative, for Summary Judgment. [R. 23]. Cardona has filed
a Response [R. 25] and Slone has filed a Reply [R. 26]. Thus,
this matter is fully briefed and ripe for review.
Factual and Procedural Background
Amended Complaint, Cardona alleges that, since he arrived at
USP-Big Sandy, Slone has refused to provide him medical
treatment for his Hepatitis C, which has caused him pain on
his stomach and side. [R. 11, Amended Complaint at
¶¶ 11, 12]. Cardona further alleges that
Slone's failure to provide him medical treatment is a
violation of the Eight Amendment's prohibition against
cruel and unusual punishment. [Id. at ¶ 14].
Based on these allegations, Cardona seeks an injunction
requiring Slone to arrange for Cardona to be provided with
his medication, as well as an award of compensatory and
punitive damages. [Id. at p. 3]. Although Cardona
originally brought a variety of claims against multiple other
parties [R. 1, 11], these claims have previously been
dismissed or severed from this case. [R. 7, 17]. Thus,
Cardona's Eighth Amendment Bivens claim against
Slone is the only claim remaining in this case. [R. 17].
Standard of Review
motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) tests the
sufficiency of the plaintiff's complaint. Gardner v.
Quicken Loans, Inc., 567 F. App'x 362, 364 (6th Cir.
2014). When addressing a motion to dismiss, the Court views
the complaint in the light most favorable to the plaintiff
and accepts as true all ‘well-pleaded facts' in the
complaint. D'Ambrosio v. Marino, 747 F.3d 378,
383 (6th Cir. 2014). Because the plaintiff here is proceeding
without the benefit of an attorney, the Court reads his
complaint to include all fairly and reasonably inferred
claims. Davis v. Prison Health Servs., 679 F.3d 433,
437-38 (6th Cir. 2012).
however, Slone moved both to dismiss and for summary
judgment, attaching and relying upon declarations extrinsic
to the pleadings in support of her motion. [R. 23]. Thus, the
Court will treat Slone's motion to dismiss the complaint
as a motion for summary judgment under Rule 56. Fed.R.Civ.P.
12(d); Wysocki v. Int'l Bus. Mach. Corp., 607
F.3d 1102, 1104 (6th Cir. 2010). See also Ball v. Union
Carbide Corp., 385 F.3d 713, 719 (6th Cir. 2004) (where
defendant moves both to dismiss and for summary judgment,
plaintiff is on notice that summary judgment is being
requested, and the court's consideration as such is
appropriate where the nonmovant submits documents and
affidavits in opposition to summary judgment).
motion under Rule 56 challenges the viability of another
party's claim by asserting that at least one essential
element of that claim is not supported by legally-sufficient
evidence. Fed.R.Civ.P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 324-25 (1986). A party moving for
summary judgment must establish that, even viewing the record
in the light most favorable to the nonmovant, there is no
genuine dispute as to any material fact and that the party is
entitled to a judgment as a matter of law. Loyd v. St.
Joseph Mercy Oakland, 766 F.3d 580, 588 (6th Cir. 2014).
Court reviews all of the evidence presented by the parties in
a light most favorable to the responding party, with the
benefit of any reasonable factual inferences which can be
drawn in his favor. Harbin-Bey v. Rutter, 420 F.3d
571, 575 (6th Cir. 2005). If the responding party's
allegations are so clearly contradicted by the record that no
reasonable jury could adopt them, the court need not accept
them when determining whether summary judgment is warranted.
Scott v. Harris, 550 U.S. 372, 380 (2007). The Court
must grant summary judgment if the evidence would not support
a jury verdict for the responding party with respect to at
least one essential element of his claim. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). If the
applicable substantive law requires the responding party to
meet a higher burden of proof, his evidence must be
sufficient to sustain a jury's verdict in his favor in
light of that heightened burden of proof at trial. Harvey
v. Hollenback, 113 F.3d 639, 642 (6th Cir. 1997);
Moore, Owen, Thomas & Co. v. Coffey, 992 F.2d
1439, 1444 (6th Cir. 1993).
Cardona's Failure to Exhaust His Administrative
preliminary matter, the Motion and supporting materials
submitted by Slone [R. 23] establish that Cardona did not
properly and timely exhaust his administrative remedies as
required by federal law. Under the Prison Litigation Reform
Act of 1995 (“PLRA”), a prisoner wishing to
challenge the manner in which his criminal sentence is being
carried out under federal law must first exhaust all
available administrative remedies. 42 U.S.C. § 1997e(a);
Jones v. Bock, 549 U.S. 199, 211 (2007)
(“There is no question that exhaustion is mandatory
under the PLRA and that unexhausted claims cannot be brought
in court.”). Requiring exhaustion of remedies available
within the agency whose actions are being challenged
preserves the agency's administrative authority by
providing the agency with “an opportunity to correct
its own mistakes with respect to the programs it administers
before it is haled into federal court.” Woodford v.
Ngo, 548 U.S. 81, 89 (2006). A prospective litigant must
present their claim for relief in such a manner to
“give the agency a fair and full opportunity to
adjudicate their claims...” Id. at 90.
BOP's Inmate Grievance System requires a federal prisoner
to first seek informal resolution of any issue with staff,
and then to institute a formal grievance with the warden
within twenty days. 28 C.F.R. §§ 542.13, 542.14(a).
If the prisoner is not satisfied with the warden's
response, he or she must appeal to the appropriate regional
office within twenty days, and if unsatisfied with that
response, to the General Counsel within thirty days
thereafter. 28 C.F.R. § 542.15(a). See BOP
Program Statement 1300.16. Because “[p]roper exhaustion
demands compliance with an agency's ...