Griggs v. Stewart et al (INMATE2)

Filing 19

REPORT AND RECOMMENDATION re 1 Inmate 1983 Complaint and 10 MOTION for Summary Judgment filed by Tommy Simms, Keisha McCoy, Tommy Spradlin, Clay Stewart, that: 1. Defendants 10 Motion for Summary Judgment be GRANTED to the extent Defendants see k dismissal of this case due to Plaintiff's failure to properly exhaust an administrative remedy previously available to him at the Chambers County Jail. 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 during his confinement in the Chambers County Jail. Objections to R&R due by 6/5/2009. Signed by Honorable Susan Russ Walker on 5/22/2009. (dmn)

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA E A S T E R N DIVISION _____________________________ D E R W IN T. GRIGGS, #198 159 P la in tif f , v. M A J O R CLAY STEWART, et al., D e f e n d a n ts. _____________________________ * * * * * 3:07-CV-691-MHT (WO)

R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE D e rw in Griggs, an inmate incarcerated at the Decatur Work Release Facility in D e c a tu r, Alabama, filed this 42 U.S.C. § 1983 action on July 30, 2007. He challenges the c o n d itio n s of confinement to which he was subjected during his incarceration at the C h a m b e rs County Jail located in Lafayette, Alabama.1 Named as defendants are Major Clay S te w a rt, Captain Tommy Simms, Lieutenant Keisha McCoy, and Sergeant Tommy Spradlin. Plaintiff seeks a damage award and requests trial by jury. Pursuant to the orders of this court, Defendants filed an answer, written report and s u p p o rtin g evidentiary materials addressing the claims for relief raised in the complaint. In th is report, Defendants assert that Plaintiff failed to exhaust an administrative remedy a v a ila b le to him while he was confined in the Chambers County Jail. Based on the orders

When he filed the instant complaint, Plaintiff was incarcerated at the Elmore Correctional Facility in Elmore, Alabama.

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entered in this case and governing case law, the court deems it appropriate to treat D e f e n d a n ts ' report as a motion for summary judgment. (Doc. No. 12; Bryant v. Rich, 530 F .3 d 1368, 1375 (11th Cir. 2008) (Although an exhaustion defense "is not ordinarily the p ro p e r subject for . . . summary judgment[,]" the defense is appropriate for summary ju d g m e n t when the evidence demonstrates administrative remedies "are absolutely time b a rre d or otherwise clearly infeasible.")). The court explained to Plaintiff the proper manner in which to respond to a motion for summary judgment. This case is now pending before the court on Defendants' motion for summary judgment and Plaintiff's opposition thereto. (Doc. N o s . 10, 16.) Upon consideration of motion, the evidentiary materials filed in support th e re o f , and Plaintiff's opposition, the court concludes that Defendants' motion for summary ju d g m e n t is due to be granted 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 in 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 s h o w that there is no genuine issue as to any material fact and that the movant is entitled to

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judgment as a matter of law.").2 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 tr e 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 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 s p 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.

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." Fed.R.Civ.P. 56 Advisory Committee Notes. Thus, although Rule 56 underwent stylistic changes, its substance remain s the same and, therefore, all cases citing the prior rule remain equally applicable to the current rule.

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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 ro b a tiv 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 (11th 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 ss o c ia te s, Inc., 276 F.3d 1275, 1279 (11th Cir. 2001); Holifield v. Reno, 115 F.3d 1555, 1 5 6 4 n.6 (11th Cir. 1997) (plaintiff's "conclusory assertions . . ., in the absence of [admissible] s u p p o rtin g evidence, are insufficient to withstand summary judgment."); Harris v. Ostrout, 6 5 F.3d 912, 916 (11th 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 (11th Cir. 1984) ("mere verification of party's own conclusory allegations is n o t sufficient 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 le m e n t essential to his case and on which the plaintiff will bear the burden of proof at trial,

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summary 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 s s a rily renders all other facts immaterial."); Barnes v. Southwest Forest Industries, Inc., 8 1 4 F.2d 607, 609 (11th 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 s u m m a ry judgment is appropriate). F o r summary judgment purposes, only disputes involving material facts are relevant. United 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 (11th 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 r tm e n t of Children and Family Services, 358 F.3d 804, 809 (11 th Cir. 2004) ("Only f a c tu a l disputes that are material under the substantive law governing the case will preclude 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) (c ita tio 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 E le c . Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In cases where the

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evidence before the court which is admissible on its face or which can be reduced to a d m is sib le form indicates that there is no genuine issue of material fact and that the party m o v in g for summary judgment is entitled to it as a matter of law, summary judgment is p ro p e r. Celotex, 477 U.S. at 323-324 (summary judgment appropriate where pleadings, e v id e n tia ry materials and affidavits before the court show there is no genuine issue as to a re q u isite material fact); Waddell, 276 F.3d at 1279 (to establish a genuine issue of material f a c t, the nonmoving party must produce evidence such that a reasonable trier of fact could re tu rn 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 su e of material fact. Beard v. Banks, 548 U.S. 521, 529 (2006); Brown v. Crawford, 906 F .2 d 667, 670 (11th Cir. 1990). Thus, the plaintiff's pro se status alone does not mandate this c o u rt's disregard of elementary principles of production and proof in a civil case. In this c a s e , 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 la in tif f challenges the constitutionality of certain conditions under which he was h o u s e d during his incarceration at the Chambers County Jail. In response to the complaint, D e f e n d a n ts maintain that this case is subject to dismissal because Plaintiff failed to exhaust

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the administrative remedy provided at the Chambers County Jail prior to filing this complaint a s required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). The Prison Litigation Reform Act compels exhaustion of available administrative re m e d ie s before a prisoner can seek relief in federal court on a §1983 complaint. Specifically, 42 U.S.C. § 1997e(a) states that "[n]o action shall be brought with respect to p r i s o n conditions under section 1983 of this title, or any other Federal law, by a prisoner c o n f in e d in any jail, prison, or other correctional facility until such administrative remedies a s are available are exhausted." "Congress has provided in § 1997(e)(a) that an inmate must e x h a u s t irrespective of the forms of relief sought and offered through administrative r e m e d i e s ." Booth v. Churner, 532 U.S. 731, 741 n.6 (2001). "[T]he PLRA's exhaustion r e q u ire m e n t applies to all inmate suits about prison life, whether they involve general c irc u m s ta n c e s or particular episodes, and whether they allege excessive force or some other w r o n g ." Porter v. Nussle, 534 U.S. 516, 532 (2002). Exhaustion of all available

a d m in is tra tiv e remedies is a precondition to litigation and a federal court cannot waive the e x h a u s tio n requirement. Booth, 532 U.S. at 741; Alexander v. Hawk, 159 F.3d 1321, 1325 (1 1th Cir. 1998); Woodford v. Ngo, 548 U.S. 81 (2006). Moreover, "the PLRA exhaustion re q u ir e m e n t requires proper exhaustion." Woodford, 548 U.S. at 93 (emphasis added). "Proper exhaustion demands compliance with an agency's deadlines and other critical p ro c e d u ra l rules [as a precondition to filing suit in federal court] because no adjudicative s ys te m can function effectively without imposing some orderly structure on the courts of its

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proceedings. . . Construing § 1997e(a) to require proper exhaustion . . . fits with the general s c h e m e of the PLRA, whereas [a contrary] interpretation [allowing an inmate to bring suit in federal court once administrative remedies are no longer available] would turn that p ro v is io n into a largely useless appendage." Id. at 90-91, 93. The Court reasoned that b e c a u s e proper exhaustion of administrative remedies is necessary an inmate cannot "satisfy th e Prison Litigation Reform Act's exhaustion requirement ... by filing an untimely or o th e rw is e procedurally defective administrative grievance or appeal[,]" or by effectively b yp a s s in g the administrative process simply by waiting until the grievance procedure is no lo n g e r available to him. Id. at 83-84; Johnson v. Meadows, 418 F.3d 1152, 1157 (11 th Cir. 2 0 0 5 ) (inmate who files an untimely grievance or simply spurns the administrative process u n til it is no longer available fails to satisfy the exhaustion requirement of the PLRA). The record in this case establishes that the Chambers County Jail provides a grievance p ro c e d u re for inmate complaints. (Doc. No. 10, Exh. N.) This administrative remedy is a v a i la b l e to all Chambers County Jail inmates, including Plaintiff at the time of his in c a rc e ra tio n there. (Id.) Defendants assert that Plaintiff failed to exhaust his administrative re m e d ie s with respect to his claim against them alleging exposure to certain unconstitutional p riso n conditions. To support this assertion, Defendants have offered declarations which m a k e it clear that Plaintiff failed to appeal his claim of unconstitutional conditions at the c o u n ty jail through the Sheriff's level in satisfaction of the exhaustion requirement. (Id. at E x h , E - Stewart Affidavit.) The records before the court indicate that Plaintiff may have

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initiated the administrative grievance process, but he has provided nothing to refute or e x p la in Defendants' evidence showing that he failed to pursue his grievances through to e x h a u s tio n . (Id. at Exh. M at pgs. 89-99.) The undersigned finds there is no dispute of m a te ria l fact that Plaintiff failed to exhaust his administrative remedies with respect to his c la im of unconstitutional conditions of confinement against Defendants. See Bock, 549 U.S. a t 218 ("The level of detail necessary in a grievance to comply with the grievance procedures w ill vary from system to system and claim to claim, but it is the prison's requirements, and n o t the PLRA, that define the boundaries of proper exhaustion."). The court, therefore, c o n c lu d e s that the claims presented in this cause of action are subject to dismissal as Plaintiff f a ile d to properly exhaust an administrative remedy available to him which is a precondition to proceeding in this court on his claims. Woodford, 548 U.S. at 87-94. W h e n Plaintiff filed the instant complaint, he was no longer incarcerated at the C h a m b e rs County Jail. Thus, the administrative remedy provided by Defendants was no lo n g e r available to him when he filed this action. Under such circumstances, dismissal with p re ju d ic e is appropriate. Bryant, 530 F.3d at 1375 n.1; Johnson, 418 F.3d at 1157; Marsh v . Jones, 53 F.3d 707, 710 (5th Cir. 1995) ("Without the prospect of a dismissal with p re ju d ic e , a prisoner could evade the exhaustion requirement by filing no administrative g rie v a n c e or by intentionally filing an untimely one, thereby foreclosing administrative re m e d ie s and gaining access to a federal forum without exhausting administrative re m e d ie s ." ); Berry v. Keirk, 366 F.3d 85, 88 (2n d Cir. 2004) (footnotes omitted) (Inmate's

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"federal lawsuits . . . properly dismissed with prejudice" where previously available a d m in is tra tiv e remedies had become unavailable and no special circumstances justified the f a ilu re to exhaust.). 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. 10) be GRANTED to the e x te n t Defendants seek dismissal of this case due to Plaintiff's failure to properly exhaust an administrative remedy previously available to him at the Chambers County Jail. 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 Chambers County Jail. It is further ORDERED that on or before June 5, 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

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attacking on appeal factual findings in the Recommendation accepted or adopted by the D is tric t Court except upon grounds of plain error or manifest injustice. Nettles v.

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 22 n d day of May, 2009.

/s / Susan Russ Walker SUSAN RUSS WALKER C H IE F UNITED STATES MAGISTRATE JUDGE

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