Darden v. Spencer

          ORDER FOLLOWING TELEPHONIC HEARING HELD ON JULY 1, 2016 ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT BASED ON FAILURE TO EXHAUST (ECF No. 50.)

         I. BACKGROUND

         Geraldine Darden (“Plaintiff”), a state prisoner proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983 on June 21, 2012. (ECF No. 1.) The case now proceeds on the First Amended Complaint filed on February 11, 2013, against defendant Dr. Scott H. Driscoll (“Defendant”), for inadequate medical care in violation of the Eighth Amendment. (ECF No. 19.)^[1]

         The parties to this action have consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c). (ECF Nos. 39, 69.) Therefore, the undersigned shall conduct any and all further proceedings in this action, including trial and final judgment.

         The discovery deadline for this case, established by the Court’s Discovery and Scheduling Order issued on September 24, 2015, expired on May 24, 2016, and the deadline for filing dispositive motions shall expire on August 4, 2016. On March 24, 2016, Defendant filed a motion for summary judgment based on Plaintiff’s failure to exhaust administrative remedies before filing suit. (ECF No. 50.) On May 11, 2016, Plaintiff filed an opposition to the motion. (ECF No. 66.) On May 18, 2016, Defendant filed a reply to the opposition. (ECF No. 71.)

         On May 19, 2016, Plaintiff filed three motions for issuance of subpoenas. (ECF Nos. 72, 73, 74.)

         II. JULY 1, 2016 TELEPHONIC HEARING

         On July 1, 2016 at 10:00 a.m., a telephonic hearing was held before Magistrate Judge Erica P. Grosjean to hear oral argument on Defendant’s motion for summary judgment and to discuss the status of this case. Plaintiff appeared telephonically on her own behalf, and Nicole M. Jaffee of Donnelly, Nelson, Depolo & Murray appeared telephonically on behalf of Defendant.

         A. Defendant’s Motion for Summary Judgment (ECF No. 50)

         On March 24, 2016, Defendant filed a motion for summary judgment based on Plaintiff’s failure to exhaust administrative remedies before filing suit, under 42 U.S.C. § 1997e(a). The Court heard oral argument at the July 1, 2016 hearing.

         There was no dispute that Plaintiff failed to file an administrative appeal against Defendant Dr. Driscoll using the prison’s appeal process. Plaintiff argued that administrative remedies were not available to her at the prison because Defendant was an outside doctor not employed at the prison. Plaintiff asserted that two of her prior appeals against outside doctors were denied on the basis that the prison has no jurisdiction to hear appeals against outside doctors. Plaintiff also asserted that Kathy Cane, an appeals coordinator at the prison, told her that the prison’s appeals process was not available for grievances against outside doctors. Defendant argued that Plaintiff failed to exhaust her remedies because she did not use the process available at the prison for her grievance against Dr. Driscoll.

         During oral argument, defense counsel confirmed that the prison grievance procedure does not address outside doctors as part of its jurisdiction.

         After consideration of the parties’ arguments and evidence, and for reasons stated on the record, the Court denied the motion for summary judgment pursuant to the Ross v. Blake standard.^[2]

         B. Status of Discovery

         1. Plaintiff’s Motions for ...