United States District Court, W.D. Washington, Tacoma
MICHAEL D. SUMMERS, Plaintiff,
CLARK COUNTY JAIL, et al., Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION
BENJAMIN H. SETTLE, District Judge.
This matter comes before the Court on the Report and Recommendation ("R&R") of the Honorable J. Richard Creatura, United States Magistrate Judge (Dkt. 65), and Plaintiff Michael Summers's ("Summers") objections to the R&R (Dkt. 66).
I. PROCEDURAL BACKGROUND
On June 24, 2013, Summers filed a 42 U.S.C. § 1983 action against Defendants Clark County Jail, Jackie Batties ("Batties"), Garry Lucas ("Lucas"), and ConMed Medical Services ("ConMed") (collectively "Defendants"). Dkt. 6. Summers alleges that ConMed violated his Eighth Amendment rights by failing to provide adequate medical treatment for an injury Summers allegedly sustained by falling from his bunk. Id. at 6. Summers also alleges that Clark County Jail, Batties, and Lucas violated his Fourth and Eighth Amendment rights by not providing a ladder to his bunk. Id.
On May 22, 2014, ConMed moved for summary judgment. Dkt. 52. On May 23, 2014, Clark County Jail, Batties, and Lucas also moved for summary judgment. Dkt. 55.
On September 3, 2014, Judge Creatura issued the R&R recommending that the Court grant Defendants' motions for summary judgment because Summers failed to exhaust his administrative remedies. Dkt. 65 at 2.
On September 15, 2014, Summers filed objections to Judge Creatura's R&R. Dkt. 66. On September 22, 2014, Clark County Jail, Batties, and Lucas responded. Dkt. 67.
Summers objects to Judge Creatura's recommended disposition. Dkt. 66. Summers argues that he was unable to exhaust his administrative remedies because he was transported to a different jail in Oregon. Id. at 1.
Federal Rule of Civil Procedure 72(b) governs objections to a magistrate judge's recommended disposition. Rule 72(b) provides as follows:
The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.
Fed. R. Civ. P. 72(b)(3).
The Court agrees with Judge Creatura that Summers failed to exhaust his administrative remedies. Following the alleged incident, Summers submitted one medical grievance regarding the medical care he received for back pain. Dkt. 56, Declaration of Michael Anderson ("Anderson Dec."), Ex. 2. Summers, however, did not file a second medical grievance after the Jail responded to his first grievance. Anderson Dec. ¶ 6. Although Summers claims that he filed a second medical grievance, Summers does not provide evidence to support this assertion. See Dkt. 63. Moreover, Summers did not file a nonmedical grievance regarding the lack of a ladder on his bunk. Anderson Dec. ¶ 8.
Summers nevertheless argues that he was unable to exhaust his administrative remedies because he was transported to a different jail in Oregon. Dkt. 66 at 1. Although Summers was transferred to an Oregon jail, the allotted time for filing a second medical grievance or a nonmedical grievance had already expired before he was transferred. See Anderson Dec. ¶ 6-7. Summers does not contest that ...