Opinion
CIV-23-935-JD
08-27-2024
RADFORD MABERY, Plaintiff, v. SGT. FNU HAMMON, Defendant.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL, UNITED STATES MAGISTRATE JUDGE
Plaintiff Radford Mabery, a state prisoner appearing pro se, filed a complaint under 42 U.S.C. § 1983. Doc. 1.United States District Judge Jodi W. Dishman initially referred this matter to United States Magistrate Judge Gary M. Purcell for proceedings consistent with 28 U.S.C. § 636(b)(1)(B), and (C). Doc. 5. Chief United States District Judge Timothy D. DeGiusti later referred the matter to the undersigned. Doc. 9.
Citations to a court document are to its electronic case filing designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
Defendant has filed the Court-ordered Special Report. Docs. 22, 25. Before the Court is Defendant's motion to dismiss, or in the alternative, motion for summary judgment. Doc. 23. Plaintiff has not responded to the motion. For the following reasons, the undersigned recommends the Court convert the motion to dismiss to a motion for summary judgment and grant it.
I. Plaintiff's claims.
Plaintiff claims Defendant “Sgt. Hammon,” a correctional officer at the North Fork Correctional Center where Plaintiff was housed, used excessive force against him while transferring him to the “SHU” on the “22nd or 21st of Oct 21.'” Doc. 1, at 1-2, 5.He alleges Defendant “hyper-extended [his] arms over [his] head aggressively caus[ing] [him] to cry out in pain.” Id. at 2. “He then threw [him] to the ground; throwing his entire body weight upon [him], breaking [his] left leg in two places i.e. the tibia & fibia.” Id. He required surgery to repair his leg and was in the hospital on two occasions for treatment. Id.
A comprehensive report of the “spontaneous use of force” states the incident occurred on October 21, 2021. Doc. 22, Ex. 3, at 5.
Plaintiff seeks compensatory damages of $350,000 and punitive damages of $175,000 for the violation of his Eighth Amendment rights. Id. at 3, 5. He also requests Defendant pay “all legal fees [and] court cost[s] related to this claim.” Id. at 5.
Defendant has moved to dismiss Plaintiff's claim against him, or, alternatively, for summary judgment in his favor based, in part, on Plaintiff's failure to exhaust administrative remedies. Doc. 23.Defendant relies on documents outside the complaint to support his motion. So the Court should treat the motion as one for summary judgment under Fed.R.Civ.P. 56 and grant it.
Defendant also asserts that Plaintiff fails to state a claim for excessive force, that he is entitled to qualified immunity, and that Plaintiff's official capacity claim for damages against him should be dismissed. Doc. 23, at 10-15. Because the undersigned recommends the Court grant summary judgment based on Plaintiff's failure to exhaust his administrative remedies, the undersigned need not address these alternative grounds for dismissal. See, e.g., Estrada v. Smart, 107 F.4th 1254, 1262 (10th Cir. 2024) (“‘[E]xhaustion is a precondition for bringing suit' under the plain language of [42 U.S.C.] § 1997(e)(a).” (quoting Small v. Camden County., 728 F.3d 265, 269 (3d Cir. 2013))).
In its order directing prison officials at the North Fork Correctional Center to prepare and file a Special Report, the Court notified the parties that if Defendant filed a motion and relied on materials not included with the complaint, the Court would convert the motion to dismiss into a motion for summary judgment. See Doc. 8, at 3. Additionally, Defendant has alternatively moved for summary judgment. Doc. 23. Plaintiff “was [thus] on notice that, procedurally, he had to defend against summary judgment” and, so, the Court may convert it. See Whitmore v. Hill, 456 Fed.Appx. 735, 737 (10th Cir. 2012) (upholding the district court's conversion of the defendants' motion to dismiss into a summary judgment motion after finding the pro se prisoner “was on notice that, procedurally, he had to defend against summary judgment”); see also Arnold v. Air Midwest, Inc., 100 F.3d 857, 859 n.2 (10th Cir. 1996) (“Notice to the parties is required to prevent unfair surprise when a judge converts a 12(b)(6) motion into a Rule 56 motion.”).
II. Standard of review.
The Court should grant summary judgment “if [Defendant] shows that there is no genuine dispute as to any material fact and [Defendant] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In considering Defendant's motion, the Court “view[s] the evidence and draw[s] reasonable inferences therefrom in the light most favorable to” Plaintiff. Burke v. Utah Transit Auth., 462 F.3d 1253, 1258 (10th Cir. 2006) (quoting Schutz v. Thorne, 415 F.3d 1128, 1131 (10th Cir. 2005)).
“Failure to exhaust under the [Prison Litigation Reform Act] is an affirmative defense.” Estrada v. Smart, 107 F.4th 1254, 1261 (10th Cir. 2024) (quoting Tuckel v. Grover, 660 F.3d 1249, 1254 (10th Cir. 2011)). When a defendant moves for summary judgment based on an affirmative defense, Rule 56 puts the burden on the defendant to “demonstrate that no disputed material fact exists regarding the affirmative defense asserted.” Id. at 1261 (quoting Hutchinson v. Pfeil, 105 F.3d 562, 564 (10th Cir. 1997)). Once the defendant meets this initial burden, the plaintiff “must then demonstrate with specificity the existence of a disputed material fact.” Id.
A dispute is “genuine,” when viewed in this light, if a reasonable jury could return a verdict for Plaintiff-the nonmoving party. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986). Material facts are “facts that might affect the outcome of the suit under the governing law.” Id. Plaintiff “may not rest upon mere allegation” in his pleadings to satisfy this requirement. Anderson, 477 U.S. at 256; see also Estrada, 107 F.4th at 1262 (“To avoid summary judgment, a nonmovant must offer evidence, not bare allegations.” (citing Fed.R.Civ.P. 56(c)(1)(A))). “Rather, sufficient evidence (pertinent to the material issue) must be identified by reference to an affidavit [or declaration], a deposition transcript or a specific exhibit incorporated therein.” Estrada, 107 F.4th at 1263 (internal footnote and quotation marks omitted).
“If the plaintiff fails to make such a showing, the affirmative defense bars his claim, and the defendant is then entitled to summary judgment as a matter of law.” Id. at 1261 (quoting Hutchinson, 105 F.3d at 564). As applied to this case, once Defendant proves that Plaintiff failed to exhaust his administrative remedies, the onus falls on Plaintiff to show that the remedies were unavailable to him. Id. (citing Tuckel, 660 F.3d at 1254).
III. Plaintiff did not exhaust his administrative remedies.
Defendant argues Plaintiff did not exhaust his administrative remedies before filing this lawsuit. Doc. 23, at 5-9. The undersigned agrees and recommends the Court grant Defendant's motion on this basis.
A. The Prison Litigation Reform Act of 1995 (PLRA)'s exhaustion requirement.
The PLRA requires a prisoner to exhaust all available administrative remedies before resorting to an action in federal court:
No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.42 U.S.C. § 1997e(a). “[E]xhaustion requirements are designed to . . . give the agency a fair and full opportunity to adjudicate their claims” before a plaintiff goes on to file an action in federal court. Woodford v. Ngo, 548 U.S. 81, 90 (2006). “There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211 (2007). To exhaust administrative remedies, the plaintiff must “us[e] all steps that the agency holds out, and [do] so properly (so that the agency addresses the issues on the merits).” Woodford, 548 U.S. at 90 (internal quotation marks omitted). “[S]ubstantial compliance is insufficient.” Fields v. Okla. State Penitentiary, 511 F.3d 1109, 1112 (10th Cir. 2007). “An inmate who begins the grievance process but does not complete it is barred from pursuing a § 1983 claim under PLRA for failure to exhaust his administrative remedies.” Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002).
B. The Oklahoma Department of Corrections (ODOC)'s grievance procedure.
The ODOC maintains a policy on prison grievances. Doc. 23, at 6 (citing Doc. 22, Ex. 19 (grievance policy effective 11/30/2020)). The grievance procedure “is made available to all inmates and . . . includes at least one level of appeal.” Doc. 22, Ex. 19, at 3.
To exhaust a claim under the grievance procedures, an inmate is first required to attempt informal resolution with a staff member. See id. at 8. If that attempt fails, the inmate can then then file a request to staff “within seven (7) days of the incident.” See id. at 8-10. The staff member assigned will respond in writing within ten (10) days of receipt” of the request to staff. Id. at 10. If that does not resolve the issue, the inmate can file a grievance with the appropriate reviewing authority within fifteen days from the date he receives a response to the request to staff. Id. at 11. The reviewing authority will respond and forward the answered grievance form to the inmate within twenty days of the receipt of the grievance. Id. at 12. This date can be extended by the reviewing authority but for no more than twenty additional days. Id. at 12-13. An inmate can submit a final appeal to the Administrative Review Authority (ARA) within fifteen days of receiving the grievance decision. Id. at 15. If the inmate submits a grievance appeal improperly, the ARA will notify the inmate and give him or her one opportunity to correct any errors in the appeal. Id. at 16.
Plaintiff references the grievance process in his complaint and has filed no response disputing the ODOC's grievance procedures. See Doc. 1, at 5.
“If there has been no response in 30 days, but no later than 60 days, of submission, the inmate/offender may file a grievance to the reviewing authority with a copy of the “Request to Staff” attached to the grievance form. The grievance may assert only the issue of the lack of response to the “‘Request to Staff.'” Doc. 22, Ex. 16, at 10.
C. Plaintiff's grievance attempts.
Plaintiff states in his complaint that he submitted on December 17, 2021, a request to staff with the “Chief of Security” to “preserve video footage” and “to investigate this matter.” Doc. 1, at 5. He claims he never received a response to this request. Id. He next submitted a request to staff on May 24, 2022, to the warden to “secure the video footage” of the incident. Id. On May 26, 2022, the warden responded that “inmates are not allowed access to any video.” Id. Plaintiff states he then filed, on June 1, 2022, a grievance “stating what this officer did to [him],” but the grievance was returned to him on June 15, 2022, for being out of time. Id. Finally, Plaintiff states he filed “a grievance appeal” on June 29, 2022, but it “was not answered.” Id.
Plaintiff did not attach any of the referenced grievance documents to his complaint.
Referencing the grievance documents attached to the Special Report, Defendant argues Plaintiff did not file a request to staff until seven months after the incident and did not properly follow the grievance procedures to exhaust his administrative remedies. Doc. 23, at 7-9. Plaintiff does not dispute Defendant's factual assertions or the documents he relies on from the Special Report.
Plaintiff submitted a request to staff to the facility's warden on May 24, 2022, stating that an officer had broken his leg on October 22, 2021, and he “would appreciate video of that day 22 Oct 21' being secured.” Doc. 22, Ex. 16, at 8. On May 26, 2022, the warden responded that “inmates are not allowed access to any video.” Id. Plaintiff then submitted, on June 1, 2022, a grievance form requesting that the reviewing authority “secure the video” of the incident. Id. at 7. The warden responded that this grievance was “[o]ut of time from date of alleged incident until filing Request to Staff” and that “inmates are not provided access to video.” Id. at 6. Plaintiff filled out an appeal form to the ARA which he dated June 29, 2022. Id. at 5. He included it in a packet of materials he mailed out in March of 2023 to the ARA complaining that his appeal had not been answered. Id. at 4-5. The ARA received the packet on April 25, 2023. Id. at 2-5. Mark Knutson, the ODOC's “Director's Designee,” responded to Plaintiff that he had not properly filed an appeal and that the office had “no record of receiving an appeal from [him] in June or July of 2022.” Id. at 3; see also id. at 2 (affidavit of Mark Knutson).
D. The Court should grant Defendant's motion because Plaintiff did not properly complete the grievance process.
Plaintiff did not file a request to staff within seven days of the incident. He states he filed request to staff on December 17, 2021, which the staff never replied to. Doc. 1, at 5. This was over a month and a half after the incident. But Plaintiff does not state he filed a grievance after thirty days had elapsed with no response-as the grievance procedure allows. Instead, he waited several months to file a request to staff and then a grievance which was denied as being out of time. After that, he waited almost a year to inquire about an appeal which the ARA stated it had never received.
Defendant has clearly demonstrated that Plaintiff failed to properly pursue and complete the ODOC's grievance process. After a defendant proves a plaintiff did not properly utilize his administrative remedies, “the onus falls on the plaintiff to show that remedies were unavailable to him.” Tuckel, 660 F.3d at 1254. But Plaintiff did not file a response to the motion and does not allege any remedies were unavailable to him. So he has not carried his burden to avoid summary judgment in favor of Defendant. See, e.g., Jernigan, 304 F.3d at 1032 (“An inmate who begins the grievance process but does not complete it is barred from pursuing a § 1983 claim under PLRA for failure to exhaust his administrative remedies.”); Beaudry v. Corr. Corp. of Am., 331 F.3d 1164, 1167 n.5 (10th Cir. 2003) (“The statutory exhaustion requirement of § 1997e(a) is mandatory, and the district court was not authorized to dispense with it.”).
E. Conclusion.
Plaintiff failed to exhaust his administrative remedies before filing this action. So Defendant is entitled to summary judgement on this affirmative defense.
IV. Recommendation and notice of right to object.
For the reasons discussed above, the undersigned recommends the Court grant Defendant's motion (Doc. 23) and enter summary judgment in favor of Defendant.
The undersigned advises the parties of their right to file an objection to the Report and Recommendation with the Clerk of this Court on or before September 17, 2024, in accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned also advises the parties that failure to make a timely objection to the Report and Recommendation waives the right to appellate review of both factual and legal questions contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation terminates the referral in this case.