Allen v. Lowndes County Sheriff Dept. et al (INMATE2)

Filing 50

RECOMMENDATION of the Magistrate Judge that: (1) defendants' 28 MOTION for Summary Judgment be granted to the extent defendants seek dismissal of this case for plaintiff's failure to exhaust available adminisstrative remedies; (2) this case be dismissed with prejudice as further set out in order. Objections to R&R due by 3/12/2009. Signed by Honorable Wallace Capel, Jr on 2/27/09. (sl, )

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION _____________________________ R O B E R T LEE ALLEN, #209 274 P l a in tif f , v. M R . WILLIE VAUGNER, et al., D e f e n d a n ts . _____________________________ * * * * * 2:07-CV-90-ID (WO)

R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE R o b e rt Lee Allen, an inmate incarcerated at the Elmore Correctional Facility in E lm o re , Alabama, filed this 42 U.S.C. § 1983 action on January 31, 2007.1 He brings this c o m p la in t alleging that rights, privileges, or immunities afforded him under the Constitution o r laws of the United States were abridged during his incarceration at the Lowndes County Ja il in Hayneville, Alabama. Plaintiff names as defendants Captain Laura Gresham, Jeanette C o ttre ll, Kiki Lawson,2 Lenny Lee, and Sheriff Willie Vaughner.3 Plaintiff requests trial by ju ry and seeks damages and injunctive relief. (See Doc. Nos. 1, 13.) Pursuant to the orders of this court, Defendants filed a written report and supporting e v id e n tiary materials addressing the claims for relief raised in the complaint. In this report,

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Plaintiff was incarcerated at the Lowndes County Jail when he filed this action. Identified by Defendants as "Lakesha Lawson Bolling." During the pendency of this action Sheriff Vaughner passed away.

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D e f en d a n ts assert this case is due to be dismissed because Plaintiff failed to exhaust an a d m in is tra tiv e remedy available to him at the county jail as required by the Prison Litigation R e f o rm Act, 42 U.S.C. § 1997e(a). Specifically, Defendants maintain that, with respect to th e claims presented in the instant complaint, Plaintiff failed to exhaust the administrative rem ed ies available to him during his incarceration at the Lowndes County Jail via the jail's in m a te grievance procedure as he failed to file any type of grievance about the allegations m a d e the basis of his complaint. (Doc. No. 28 at pgs. 11-12.) In accordance with the orders of the court (see Doc. No. 29), Plaintiff was informed that Defendants' special report may, at any time, be treated as a motion for summary ju d g m e n t, and the court explained to Plaintiff the proper manner in which to respond to a m o tio n for summary judgment. See Bryant v. Rich, 530 F.3d 1368, 1375 (11 th Cir. 2008) (A lth o u g h an exhaustion defense "is not ordinarily the proper subject for a summary ju d g m e n t[ ,]" the defense is appropriate for summary judgment when the evidence d e m o n stra tes administrative remedies "are absolutely time barred or otherwise clearly inf ea sible." ). This case is now pending before the court on Defendants' motion for summary ju d g m e n t and Plaintiff's opposition thereto. (Doc. Nos. 28, 30, 35.) Upon consideration of m o tio n , the evidentiary materials filed in support thereof, and Plaintiff's opposition, the court c o n c lu d e s that Defendants' motion for summary judgment is due to be granted and this case d is m is s e d with prejudice as Plaintiff failed to exhaust an available administrative remedy.

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I . STANDARD OF REVIEW "S u m m a ry judgment is appropriate 'if the pleadings, depositions, answers to in te rro g a to rie s, and admissions on file, together with the affidavits, if any, show there is no g e n u i n e issue as to any material fact and that the moving party is entitled to judgment as a m a tte r of law.'" Greenberg v. BellSouth Telecomm., Inc., 498 F.3d 1258, 1263 (11 th Cir. 2 0 0 7 ) (per curiam) (citation omitted); Fed.R.Civ.P. Rule 56(c) (Summary judgment "should b e rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits sh o w that there is no genuine issue as to any material fact and that the movant is entitled to ju d g m e n t as a matter of law.").4 The party moving for summary judgment "always bears the in itia l responsibility of informing the district court of the basis for its motion, and identifying th o s e portions of the [record, including pleadings, discovery materials and affidavits], which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. C a tre tt, 477 U.S. 317, 323 (1986). The movant may meet this burden by presenting evidence w h ic h would be admissible at trial indicating there is no dispute of material fact or by s h o w in g that the nonmoving party has failed to present evidence in support of some element o f its case on which it bears the ultimate burden of proof. Id. at 322-324. Defendants have met their evidentiary burden and demonstrated the absence of a g e n u in e issue of material fact with respect to Plaintiff's failure to exhaust administrative

Effective December 1, 2007, "[t]he language of Rule 56 [was] amended ... to make the rule[] more easily u n d ersto o d and to make style and terminology consistent throughout the rules. These changes ... are stylistic only." Fe d .R .C iv.P . 56 Advisory Committee Notes. Thus, although Rule 56 underwent stylistic changes, its substance rem ain s the same and, therefore, all cases citing the prior rule remain equally applicable to the current rule.

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re m e d ie s. Thus, the burden shifts to Plaintiff to establish, with appropriate evidence beyond th e pleadings, that a genuine issue material to his case exists. Clark v. Coats and Clark, Inc., 9 2 9 F.2d 604, 608 (11th Cir. 1991); Celotex, 477 U.S. at 324; Fed.R.Civ.P. 56(e)(2) ("When a motion for summary judgment is properly made and supported, an opposing party may not re ly merely on allegations or denials in its own pleading; rather, its response must ... set out sp e c if ic facts showing a genuine issue for trial."). A genuine issue of material fact exists w h e n the nonmoving party produces evidence that would allow a reasonable fact-finder to re tu rn a verdict in its favor. Greenberg, 498 F.3d at 1263. To survive Defendants' properly supported motion for summary judgment, Plaintiff is required to produce "sufficient [favorable] evidence" establishing proper exhaustion of a d m in is tra tiv e remedies. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). "If the e v id e n c e [on which the nonmoving party relies] is merely colorable ... or is not significantly p r o b a t iv e ... summary judgment may be granted." Id. at 249-250. "A mere 'scintilla' of e v id e n c e supporting the opposing party's position will not suffice; there must be enough of a showing that the [trier of fact] could reasonably find for that party. Anderson v. Liberty L o b b y , 477 U.S. 242, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986)." Walker v. Darby, 911 F .2 d 1573, 1576-1577 (11 th Cir. 1990). Conclusory allegations based on subjective beliefs a re likewise insufficient to create a genuine issue of material fact and, therefore, do not s u f f ic e to oppose a motion for summary judgment. Waddell v. Valley Forge Dental A s s o c ia te s, Inc., 276 F.3d 1275, 1279 (11 th Cir. 2001); Holifield v. Reno, 115 F.3d 1555,

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1 5 6 4 n.6 (11 th Cir. 1997) (plaintiff's "conclusory assertions ..., in the absence of [admissible] su p p o rtin g evidence, are insufficient to withstand summary judgment."); Harris v. Ostrout, 6 5 F.3d 912, 916 (11 th Cir. 1995) (grant of summary judgment appropriate where inmate p ro d u c e s nothing beyond "his own conclusory allegations...."); Fullman v. Graddick, 739 F .2 d 553, 557 (11 th Cir. 1984) ("mere verification of party's own conclusory allegations is not su f f icie n t to oppose summary judgment...."). Hence, when a plaintiff fails to set forth s p e c if ic facts supported by appropriate evidence sufficient to establish the existence of an e lem e n t essential to his case and on which the plaintiff will bear the burden of proof at trial, s u m m a ry judgment is due to be granted in favor of the moving party. Celotex, 477 U.S. at 3 2 2 ("[F]ailure of proof concerning an essential element of the nonmoving party's case n e c e ss a rily renders all other facts immaterial."); Barnes v. Southwest Forest Industries, Inc., 8 1 4 F.2d 607, 609 (11 th Cir. 1987) (if on any part of the prima facie case the plaintiff presents in s u f f ic ie n t evidence to require submission of the case to the trier of fact, granting of su m m ary judgment is appropriate). F o r summary judgment purposes, only disputes involving material facts are relevant. U n ited States v. One Piece of Real Property Located at 5800 SW 74 th Avenue, Miami, F lo r id a , 363 F.3d 1099, 1101 (11 th Cir. 2004). What is material is determined by the s u b s ta n tiv e law applicable to the case. Anderson, 477 U.S. at 248; Lofton v. Secretary of the D e p a rtm e n t of Children and Family Services, 358 F.3d 804, 809 (11 th Cir. 2004) ("Only f a ctu a l disputes that are material under the substantive law governing the case will preclude

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e n try of summary judgment."). "The mere existence of some factual dispute will not defeat s u m m a ry judgment unless that factual dispute is material to an issue affecting the outcome o f the case." McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11 th Cir. 2003) (citatio n omitted). To demonstrate a genuine issue of material fact, the party opposing s u m m a ry judgment "must do more than simply show that there is some metaphysical doubt a s to the material facts.... Where the record taken as a whole could not lead a rational trier o f fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita Elec. I n d u s . Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In cases where the evidence b ef o re the court which is admissible on its face or which can be reduced to admissible form in d ic a te s that there is no genuine issue of material fact and that the party moving for s u m m a ry judgment is entitled to it as a matter of law, summary judgment is proper. Celotex, 4 7 7 U.S. at 323-324 (summary judgment appropriate where pleadings, evidentiary materials an d affidavits before the court show there is no genuine issue as to a requisite material fact); W a d d e ll, 276 F.3d at 1279 (to establish a genuine issue of material fact, the nonmoving party m u st produce evidence such that a reasonable trier of fact could return a verdict in his favor). A lth o u g h factual inferences must be viewed in a light most favorable to the n o n m o v in g party and pro se complaints are entitled to liberal interpretation by the courts, a p r o se litigant does not escape the burden of establishing by sufficient evidence a genuine is s u e of material fact. Beard v. Banks, 548 U.S. 521, 529 (2006); Brown v. Crawford, 906 F .2 d 667, 670 (11 th Cir. 1990). Thus, the plaintiff's pro se status alone does not mandate this

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c o u rt's disregard of elementary principles of production and proof in a civil case. In this c a se , Plaintiff fails to demonstrate a requisite genuine issue of material fact in order to p re c lu d e summary judgment. Matsushita, 475 U.S. at 587. II. DISCUSSION P lain tiff challenges various conditions to which he was exposed during his in c a rc e ra tio n at the Lowndes County Jail between August 2006 and February 2007.5 S p e c if ic a lly, Plaintiff complains that: 1) for reasons not made known to him he was placed in an isolation cell but believes it was in retaliation for a previous lawsuit he filed against L o w n d e s County Jail officials; 2) Defendant Lee pointed a taser gun at him and threatened to shoot him if he refused to enter the isolation cell; and 3) jail officials went through his le g a l mail and legal papers without his permission and outside of his presence. (Doc. Nos. 1 , 13.) In their dispositive motion, Defendants assert that this case is due to be dismissed b e c au s e Plaintiff failed to exhaust his available administrative remedies as required by the P r is o n Litigation Reform Act, 42 U.S.C. § 1997e(a). Specifically, Defendants maintain that w ith respect to the claims presented in the instant action, Plaintiff failed to exhaust the a d m in istra tiv e remedies available to him at the Lowndes County Jail via the jail's inmate g rie v a n c e procedure. (See Doc. No. 28, Gresham, Vaughner, Lee, and Cottrell Affidavits; D o c . No. 32, Bolling Affidavit.)

During this period of time Plaintiff was transferred to the Autauga County Jail where he spent a relatively brief period of time. (See Doc. No. 25.)

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T h e PLRA requires exhaustion of available administrative remedies before a prisoner c a n seek relief in federal court on a 42 U.S.C. § 1983 complaint. Specifically, 42 U.S.C. § 1 9 9 7 e (a ) directs that "[n]o action shall be brought with respect to prison conditions under s e c tio n 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, o r other correctional facility until such administrative remedies as are available are e x h a u ste d ." "Congress has provided in § 1997(e)(a) that an inmate must exhaust irrespective o f the forms of relief sought and offered through administrative remedies." Booth v. C h u r n e r, 532 U.S. 731, 741 n.6 (2001). "[T]he PLRA's exhaustion requirement applies to a ll inmate suits about prison life, whether they involve general circumstances or particular e p is o d e s, and whether they allege excessive force or some other wrong." Porter v. Nussle, 5 3 4 U.S. 516, 532 (2002). Exhaustion of all available administrative remedies is a

p r e c o n d i tio n to litigation and a federal court cannot waive the exhaustion requirement. B o o th , 532 U.S. at 741; Alexander v. Hawk, 159 F.3d 1321, 1325 (11 th Cir. 1998); Woodford v . Ngo, 548 U.S. 81, 126 S.Ct. 2378 (2006). Moreover, "the PLRA exhaustion requirement r e q u ir e s proper exhaustion." Id. at 93 (emphasis added). The Supreme Court in Woodford determined proper exhaustion means that a prisoner m u st complete the administrative review process in accordance with the applicable p ro c e d u ra l rules, including deadlines, as a precondition to bringing suit in federal court. 548 U .S . at 93-95. The Court further explained "[p]roper exhaustion demands compliance with a n agency's deadlines and other critical procedural rules [prior to seeking relief from a

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f e d era l court] because no adjudicative system can function effectively without imposing so m e orderly structure on the courts of its proceedings . . . Construing § 1997e(a) to require p ro p e r exhaustion . . . fits with the general scheme of the PLRA, whereas [a contrary] in te rp re ta tio n [allowing an inmate to bring suit in federal court once administrative remedies a re no longer available] would turn that provision into a largely useless appendage." Id. at 9 3 . Consequently, a prisoner cannot "proceed . . . to federal court" after bypassing available a d m in is tra tiv e remedies, either by failing to properly exhaust administrative remedies or w a itin g until such remedies are no longer available, as allowing federal review under these c irc u m sta n c e s would impose "no significant sanction" on the prisoner and "the PLRA did n o t create such a toothless scheme." Id. at 95; Johnson v. Meadows, 418 F.3d 1152, 1157 (1 1 th Cir. 2005) (inmate who files an untimely grievance or simply spurns the administrative p ro c e ss until it is no longer available fails to satisfy the exhaustion requirement of the P L R A ). This interpretation of the PLRA's exhaustion requirement "carries a sanction" for n o n c o m p lia n c e and avoids "mak[ing] the PLRA exhaustion scheme wholly ineffective." W o o d f o r d , 548 U.S. at 95. Further, the PLRA's exhaustion requirement contains no futility e x c e p tio n where there is an available inmate grievance procedure. See Booth, 532 U.S. at 741 n . 6 ( "[W]e will not read futility or other exceptions into statutory exhaustion requirements w h e re Congress has provided otherwise." ); Cox v. Mayer, 332 F.3d 422, 424-28 (6 th Cir. 2 0 0 3 ) (holding that the exhaustion requirement applies to a former prisoner who filed his c o m p la in t without exhausting his administrative remedies and who had since been released

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f ro m custody); see also Massey v. Helman, 196 F.3d 727, 733 (7 th Cir. 1999). In support of their exhaustion argument, Defendants affirm that, at all times relevant to this litigation, the Lowndes County Jail maintained an inmate grievance procedure. (Doc. N o . 28, Gresham Affidavit.) This administrative remedy is available to all Lowndes County J a il inmates, including Plaintiff at the time of his incarceration there. (Id.) Defendants c o n te n d that, per standard operating procedure, all inmate requests/grievances submitted by P lain tiff were placed in his inmate file. (Id. and Vaughner, Lee, and Cottrell Affidavits; D o c . No. 32, Bolling Affidavit.) Defendants do not recall receiving any requests or

c o m p la in ts from him regarding the matters made the subject of his complaint. (Id. and Exhs. 3 , 5.) In opposition to Defendant's dispositive motion, Plaintiff does not deny that he is re q u ire d to exhaust administrative remedies or that an inmate grievance procedure is a v a ilab le at the Lowndes County Jail.6 (Doc. Nos. 30, 35.) Rather, Plaintiff maintains that h e filed grievances/request forms about everything he complains of in his complaint but that D e f e n d a n ts failed to submit with their dispositive motion all the grievance and request forms h e filed. (Id.) Plaintiff further challenges the manner in which his inmate request forms w ere handled by claiming that most of the request forms submitted by Defendants in support o f their dispositive motion do not have a receiving officer's signature and fail to indicate w h a t, if any, action was taken with respect to the grievance/request forms he did file. (Id.)

To the extent Plaintiff complains in his opposition about matters and events neither raised nor presented in the original or amended complaints (see Doc. Nos. 1, 13), such claims and/or issues are not properly before the court. Plaintiff is free, however, to file a separate civil action with respect to such matters.

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The record in this case establishes that the Lowndes County Jail provides a grievance p ro c e d u re for inmate complaints. It is undisputed that inmates are informed of the jail's g rie v a n ce process upon being booked into the jail and receive a copy of the jail's rules and r e g u la ti o n s . Members of the Lowndes County Jail staff receive and answer written

g rie v a n ce s submitted by inmates. Jail staff are charged with the responsibility of receiving a n d forwarding written grievances to the appropriate authority. The officer receiving the re q u e st must answer the request, if possible. Defendants maintain that Plaintiff has filed n o grievances concerning the allegations made in the instant complaint.7 (See Doc. No. 28, E x h s. 3, 5 and Gresham Affidavit.) Plaintiff relies on his own conclusory allegations submitted in response to

D e f en d a n ts ' dispositive motion that he complied with the jail's administrative remedies by f ilin g grievances about everything about which he complains in this matter as well as filing g rie v a n ce s about everything that he felt denied him his rights or were wrongs committed by ja il staff. (Doc. Nos. 30, 35.) Plaintiff indicates he cannot produce inmate grievances if they

Defendants' evidentiary material shows that Plaintiff submitted inmate request forms with respect to having been bitten by a spider, difficulty with bowel movements, headaches, an eye injury, and the nature of the charges against him. (See Doc. No. 28, Exhs. 3, 5.) The court notes that the inmate request forms provided by the county jail contain a listing of "event codes," so to speak, whereby an inmate may place a check mark next to the event code to reflect the nature of his/her request. Thus, inmates can indicate on the request form whether it is submitted as a grievance, a medical/dental request, appeal of a disciplinary/grievance, a request for bond information, charge information, commissary/money clerk information, court date information, visitation information, or commissary information, a request to visit law library, and/or "other." (Id.) None of Plaintiff's inmate request forms reflect that he submitted them as a grievance. Rather, he marked his requests as either medical, other, charge/bond information, law library visit, or court date information. (Id.) Assuming, arguendo, that the inmate request forms submitted by Plaintiff may properly be considered grievances regarding the conditions of his confinement, there is no indication that he filed a grievance or grievance appeal with respect to the allegations made the subject matter of the instant action. (Id.)

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w e re not looked at or signed and questions the court's acceptance of Defendants' evidence. (Id .) Defendants contradict these claims maintaining that Plaintiff's jail file contains copies o f the inmate request forms he did submit; that the internal grievance procedure at the L o w n d e s County Jail is available to all inmates, including Plaintiff; that all inmates, in c lu d in g Plaintiff may submit grievances; and that all inmate grievances are acted upon, if p o s s ib le . (Doc. No. 28, Exhs. 3, 5 and Gresham Affidavit.) Defendants' evidentiary materials f u rth e r support their contention that Plaintiff failed to file any grievance with respect to the c o n d itio n s about which he complains in the instant cause of action. (Id.) This court may properly resolve this factual issue relating to exhaustion, see Bryant, 5 3 0 F.3d at 1374, and finds that the facts do not support Plaintiff's interference/futility a rg u m e n ts . As noted, exhaustion of available remedies applies to all prisoners in any facility, i t is mandatory, and may not be waived by the court. See Alexander, 159 F.3d at 1324-26 (e x h a u stio n requirement of 42 U.S.C. § 1997e(a) is mandatory, whether the claim is brought p u rsua n t to § 1983 or Bivens ); see also Porter, 534 U.S. 516. Furthermore, this court may n o t consider the adequacy or futility of administrative remedies, but only the availability of s u c h . Higginbottom v Carter, 223 F.3d 1259, 1261 (11 th Cir. 2000), citing Alexander, 159 F .3 d at 1323. The unrefuted evidence filed in this matter shows that Plaintiff was familiar with the L o w n d e s County Jail's administrative grievance procedure and that he had sought a d m in is tra tiv e relief on various issues during his incarceration at the facility. The court has

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c a re f u lly reviewed the pleadings, documents, and records filed herein and finds that Plaintiff h a s failed to make a colorable showing that he properly exhausted the administrative re m e d ies available to him at the county jail or demonstrated that he was denied access to th o s e administrative procedures during his incarceration at the facility. Other than his selfse rv in g statements, there is no record or documentation that Plaintiff made any complaints a g a in s t Defendants about the matters made the subject of this action. Plaintiff simply states th a t he filed grievances "about everything" but claims that Defendants did not submit copies o f all the grievances he filed. He provides no other facts or evidence, however, which tend to establish that he took advantage of and/or properly exhausted the administrative remedies a v a ilab le to him at the Lowndes County Jail with respect to those allegations made the basis o f the instant complaint. See Kozuh v. Nichols, 2006 WL 1716049 at *2 (11th Cir. June 22, 2 0 0 6 ) (rejecting inmate's claim "that he was 'thwarted' when officials refused to respond to h is grievances, leaving the grievance procedure unavailable" and noting that inmate had filed n u m e ro u s informal complaints). Based on the foregoing, the court concludes that the claims f o r relief presented in this cause of action are subject to dismissal with prejudice as Plaintiff f a ile d to exhaust an available administrative remedy which is a precondition to proceeding in this court on his claims. Woodford, 548 U.S. at 87-94; see Bryant, 530 F.3d at 1375 n.11; B e rr y v. Kerik, 366 F.3d 85, 88 (2nd Cir. 2004) (footnotes omitted) (Inmate's "federal la w s u its . . . properly dismissed with prejudice" where previously available administrative re m e d ies had become unavailable and no special circumstances justified the failure to

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e x h a u s t .) . III. CONCLUSION A c c o rd in g ly, it is the RECOMMENDATION of the Magistrate Judge that: 1 . Defendants' motion for summary judgment (Doc. No. 28) be GRANTED to the e x ten t Defendants seek dismissal of this case for Plaintiff's failure to exhaust available a d m in istra tiv e remedies; 2. This case be DISMISSED with prejudice in accordance with the provisions of 42 U .S .C . § 1997e(a) for Plaintiff's failure to exhaust an administrative remedy available to him d u rin g his confinement in the Lowndes County Jail. It is further ORDERED that on or before March 12, 2009 the parties may file objections to the R e c o m m e n d a tio n . Any objections filed must specifically identify the findings in the M a g is tra te Judge's Recommendation to which a party objects. Frivolous, conclusive or g e n e ra l objections will not be considered by the District Court. The parties are advised that th is Recommendation is not a final order of the court and, therefore, it is not appealable. F a ilu re to file written objections to the proposed findings and advisements in the M a g is tra te Judge's Recommendation shall bar the party from a de novo determination by the D is tric t Court of issues covered in the Recommendation and shall bar the party from a tta c k in g on appeal factual findings in the Recommendation accepted or adopted by the D is tr i c t Court except upon grounds of plain error or manifest injustice. Nettles v.

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W a in w r ig h t, 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 3 3 (11th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981, en b a n c ), adopting as binding precedent all of the decisions of the former Fifth Circuit handed d o w n prior to the close of business on September 30, 1981. D o n e , this 27th day of February 2009.

/s/ Wallace Capel,Jr WALLACE CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE

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