Magee v. Perry ( 2021 )

Case: 20-60349 Document: 00515998454 Page: 1 Date Filed: 08/27/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 27, 2021
No. 20-60349
Lyle W. Cayce
Clerk
Kendall K. Magee,
Plaintiff—Appellant,
versus
Gloria Perry, Chief Medical Compliance Officer,
Mississippi Department of Corrections (MDOC),
Individually and in her Official Capacity; Nurse Lissa
Collins, Medical Administrator/Practitioner, Central
Mississippi Correctional Facility, CMCF, Individually
and in her Official Capacity; Nurse Nina Waltzer,
CMCF, Individually and in her Official Capacity;
Christina Charczenko, CMCF, Individually and in her
Official Capacity,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:19-CV-245
Before Stewart, Ho, and Engelhardt, Circuit Judges.
Case: 20-60349 Document: 00515998454 Page: 2 Date Filed: 08/27/2021
No. 20-60349
Per Curiam:*
Kendall K. Magee, Mississippi prisoner # 180061, appeals pro se the
district court’s dismissal of his 42 U.S.C. § 1983 complaint against Gloria
Perry, Chief Medical Compliance Officer for the Mississippi Department of
Corrections (“MDOC”); Nurse Lissa Collins, a medical administrator for
Central Mississippi Correctional Facility (“CMCF”); Nurse Nina Waltzer
of CMCF; and Nurse Christina Charczenko, also of CMCF; alleging that the
defendants violated his constitutional rights by failing to timely make a
specialist appointment for a bone fracture in his hand, resulting in serious and
permanent damage. We AFFIRM.
I. Facts & Procedural History
Magee filed pro se a 42 U.S.C. § 1983 complaint alleging that the
defendants were deliberately indifferent to his serious medical needs. Magee
stated that he injured his hand on November 30, 2018, and reported to the
prison clinic where staff x-rayed his hand and determined that Magee needed
to be transported to the emergency room of a local medical center. According
to Magee, staff did not transport him to the emergency room until the
following day despite the injury and Magee’s high level of pain. Magee alleges
that emergency room staff advised him that he had a “boxer fracture,”
applied a temporary half cast, and made an emergency appointment with a
bone specialist for December 3, 2018, to set the hand and evaluate Magee’s
complaints of pain.
Magee states that staff failed to transport him to the bone specialist on
December 3, and that Magee then began a series of calls to medical staff
because of his “intense” and worsening pain and repeatedly requested that
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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they take him to the bone specialist immediately. According to Magee, staff
provided a “limited prescription of pain medications” only once over the
course of four sick calls. Although staff acknowledged that the original
December 3 appointment had been “messed up” in some way, staff
nonetheless scheduled no appointment by January 31, 2019, at which point
Magee filed a Request for Administrative Remedy. Six days later, on
February 6, 2019, prison staff brought Magee to a specialist at the local
medical center. According to Magee, the physician questioned why Magee
had not been brought in for his December 3 appointment and advised Magee
that the medical team might need to re-break the hand to set it properly.
Magee stated that he began a series of appointments with physical therapists
and others to treat the injury.
On May 8, 2019, months after Magee’s appointment with the
specialist and after Magee filed his April 9, 2019 federal complaint, the prison
medical director responded to Magee’s January 31 grievance, stating that
Magee had been “seen by an off-site specialist” and was “receiving
rehabilitative services.” Magee sought no further review of his grievance.
Magee averred that, after his series of rehabilitative services, the bone
specialist determined that surgery was required for the hand and thereafter
performed surgery. As a result of the delay in treatment of the broken bone,
Magee stated that he experienced pain, suffering, and physical disfigurement
continuing through the time he filed his complaint.
The three CMCF defendants filed a motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6), in which Perry joined. The
defendants argued that Magee failed to exhaust his administrative remedies
before filing suit. The parties agreed to proceed before a magistrate judge,
who held an omnibus hearing. Thereafter, the magistrate judge granted the
motion to dismiss for failure to exhaust administrative remedies, finding both
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that Magee untimely filed his administrative complaint and that he failed to
complete the grievance process. Magee timely appealed.
II. Discussion
We review de novo the district court’s dismissal of Magee’s
complaint. Ruiz v. Brennan, 851 F.3d 464, 468 (5th Cir. 2017).
Under the Prison Litigation Reform Act (PLRA), prisoners are
required to exhaust “such administrative remedies as are available” before
bringing an action regarding prison conditions under § 1983. 42 U.S.C.
§ 1997e(a); see also Woodford v. Ngo, 548 U.S. 81, 85 (2006). To properly
exhaust his or her claims, a prisoner must pursue all of the available avenues
of relief and must comply with all administrative deadlines and procedural
rules. Woodford, 548 U.S. at 90–91; see Cowart v. Erwin, 837 F.3d 444, 451
(5th Cir. 2016). The sole exception to the exhaustion requirement is that “the
remedies must indeed be ‘available’ to the prisoner.” Ross v. Blake, 136 S. Ct.
1850, 1856 (2016) (citation omitted).
Under MDOC’s two-step Administrative Remedy Process (“ARP”),
inmates must first submit a letter requesting an administrative remedy within
30 days of the event that is the subject of the grievance. If a response is not
made within forty days from the date that the first-step request is received,
the inmate may move to the second step in the process.
Here, the district court concluded that Magee did not exhaust his
administrative remedies because his first-step grievance was untimely.
Magee’s missed appointment was on December 3, 2018, but he did not file
an ARP grievance until January 31, 2019. Magee contends that his ARP
request was not untimely because the failure to take him to see a bone
specialist was a “continuing wrong” and not an incident that can be isolated
to a single day. However, we need not consider this argument because even
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if Magee’s grievance was timely, he failed to provide prison officials with
proper notice of the subject of his federal complaint.
While Magee successfully grieved his specific issue regarding the
prison’s failure to take him to his scheduled medical appointment, the subject
of the federal suit before us involves a different problem. This court has
explained that the “primary purpose of a grievance is to alert prison officials
to a problem.” Johnson v. Johnson, 385 F.3d 503, 522 (5th Cir. 2004).
Moreover, the grievance must alert the officials in a manner sufficiently
specific to allow the officials to address or remedy the discrete problem of
which the prisoner complains. Id.From December 4, 2018, to January 31, 2019, Magee was aggrieved by
the prison staff’s failure to schedule and transport him to a specialist for his
hand injury. At his appointment with the specialist on February 6, 2019,
however, Magee discovered a problem separate from the one he grieved. As
Magee explained at the hearing on his complaint, “I became aware that . . .
the delay in treating my injury had actually caused my injury to become
serious and[,] . . . it will need extensive medical care.” Magee’s original
grievance said nothing about serious or potentially permanent damage caused
by the lack of treatment and, more importantly, nothing about a remedy other
than the specialist appointment. If Magee himself was unaware of the
permanent damage caused to his hand by the delay in receiving treatment
until the specialist appointment, we cannot expect that prison officials would
have been aware, either. In an analogous situation, this court has concluded
that a claim was unexhausted where an inmate grieved the merits and process
of a disciplinary proceeding without any mention that the disciplinary case
was a product of retaliation or that the restrictions resulting from the
disciplinary charge were constitutionally infirm, as the inmate alleged in his
federal complaint. See Emmett v. Ebner, 423 F. App’x 492, 493–94 (5th Cir.
2011).
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In light of these facts, the district court did not err in concluding that
Magee could not rely on his original first-step grievance to show complete
exhaustion of the issue of the orthopedic damage to his hand caused by prison
officials’ delay in obtaining treatment. If there was no administrative remedy
available for the lasting damage caused by the delay following resolution of
the first-step grievance, as Magee avers, then that absence is because the
original grievance, whether timely filed or not, did not present to prison
officials the problem of the continuing and lasting damage to Magee’s hand
from the delayed treatment. Magee filed no timely grievance as to the injury
he alleged in his federal complaint which he claims he discovered during and
after his February 6, 2019, meeting with the specialist. Therefore, he failed
to exhaust his administrative remedies.
III. Conclusion
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
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