Carroll v. Amerson et al

Filing 57

MEMORANDUM OPINION. Signed by Chief Judge Sharon Lovelace Blackburn on 3/29/2013. (KAM, )

FILED
2013 Mar-29 PM 03:52
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
ROBERT CARROLL, JR.,
Plaintiff,
vs.
LARRY AMERSON, et al.,
Defendants.

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CASE NO. 1:10-cv-0864-SLB

MEMORANDUM OPINION
On February 1, 2013, the Magistrate Judge filed his Report and Recommendation,
(doc. 54),1 recommending that defendants’ Motion for Summary Judgment, (doc. 46), be
granted and that this case be dismissed with prejudice due to plaintiff’s failure to properly
exhaust his administrative remedies as required by the Prison Litigation Reform Act
(“PLRA”). On February 19, 2013, plaintiff filed his Affidavit and Objection to the
Magistrate Judge’s Findings and Recommendation, (doc. 56).
On April 26, 2012, defendants filed the pending Motion for Summary Judgment, (doc.
46), wherein they, inter alia, reassert their stance that plaintiff failed to exhaust the
administrative remedies available at the Calhoun County Jail as to any of his claims.2 Each
1

Reference to a document number, [“Doc. ___”], refers to the number assigned to each
document as it is filed in the court’s record.
2

Defendants previously raised the exhaustion issue in a Special Report, (doc. 18), on
November 10, 2010, which the Magistrate Judge converted into a motion for summary judgment.
The Magistrate Judge issued a Report and Recommendation, (doc. 37), recommending that
defendants’ converted motion for summary judgment be granted on failure to exhaust grounds.
Plaintiff submitted objections to the Report and Recommendation wherein he stated, under oath,
that he submitted grievances, inmate requests, and medical requests to the Calhoun County Jail

defendant submitted an affidavit providing a detailed explanation of the Calhoun County Jail
grievance procedure. According to the affidavit evidence, “[t]he Calhoun County Jail has
separate Medical Request Forms, Inmate Request Forms and Inmate Grievance Forms which
can be obtained from any member of the jail staff at any time.” (Doc. 48-1 at ¶ 6; doc. 48-2
¶ 8; doc. 48-3 ¶ 5; doc. 48-4 ¶ 5; doc. 48-6 ¶ 23; 49-1 ¶ 22.) A corrections officer pushes a
cart through the jail twice daily, and inmates place their Inmate Grievance Forms and Inmate
Request Forms in designated locked boxes on this cart. (Doc. 48-1 ¶ 7; doc. 48-2 ¶ 9; doc.
48-3 ¶ 6; doc. 48-4 ¶ 6; doc. 48-6 ¶ 24; doc. 49-1 ¶ 23.) A separate cart with a designated
locked box for Medical Request Forms is pushed through the jail two to three times daily.
(Doc. 48-1 ¶ 7; doc. 48-2 ¶ 9; doc. 48-3 ¶ 6; doc. 48-4 ¶ 6; doc. 48-6 ¶ 24; doc. 49-1 ¶ 23.)
All the collected forms “are routed to the Jail Administrator or Lieutenant and, if necessary,
forwarded by him or her to the proper authority.” (Doc. 48-1 ¶ 7; doc. 48-2 ¶ 9; doc. 48-3
¶ 6; doc. 48-4 ¶ 6; doc. 48-6 ¶ 24; doc. 49-1 ¶ 23.) “Completed grievance forms are

staff that went unanswered. (Doc. 40 at 2.) In support, plaintiff attached copies of written
Inmate Grievance Forms, Inmate Request Forms, and Medical Request Forms that he purportedly
filed with the jail administration. (See doc. 39.) The forms contained a section for a jail
official’s response and final answer. (Id.) This section was left blank on all plaintiff’s forms,
indicating that jail officials never responded to plaintiff’s grievances and requests. (Id.) Based
on plaintiff’s objections and evidentiary submissions, the court rejected the Magistrate Judge’s
Report and Recommendation and denied defendants’ converted motion for summary judgment
without prejudice. (Doc. 41 at 3.) The court found that the unanswered grievance and request
forms, coupled with plaintiff’s sworn statement, created a question of fact as to whether plaintiff
had exhausted his administrative remedies. (Id. at 2 [citing Whitington v. Ortiz, 472 F.3d 804,
807-08 (10th Cir. 2007) (“When prison officials fail to timely respond to a grievance, the
prisoner has exhausted ‘available’ administrative remedies under the PLRA.”); Fazzini v.
Northeast Ohio Correctional Center, 473 F.3d 229, 234 (6th Cir. 2006) (“The exhaustion
requirement is satisfied where prison officials fail to timely respond to an inmate’s written
grievance.”); Brengettcy v. Horton, 423 F.3d 674, 682 (7th Cir. 2005); Miller v. Tanner, 196 F.3d
1190, 1194 (11th Cir. 1999)].).

specifically delivered to the Jail Administrator or other appropriate personnel, who then read
the grievances and respond on the grievance form. Then, a copy of the form with the
response is sent to the inmate and the original is placed in his or her file.” (Doc. 48-1 ¶ 7;
doc. 48-2 ¶ 9; doc. 48-3 ¶ 6; doc. 48-4 ¶ 6; doc. 48-6 ¶ 24; doc. 49-1 ¶ 23.) Each inmate
receives a copy of the Calhoun County Jail Inmate Handbook, which explains the grievance
procedure. (Doc. 48-1 ¶¶ 9-10; doc. 48-2 ¶¶ 11-12; doc. 48-3 ¶¶ 8-9; doc. 48-4 ¶¶ 8-9; doc.
48-6 ¶¶ 26-27; doc. 49-1 ¶¶ 25-26.) Jail Administrator Eric Starr (“Starr”) and Lieutenant
Lisa Abernathy (“Abernathy”), to whom collected grievance forms and inmate requests are
routed, stated that they had “never seen or heard of the eleven forms Plaintiff claims to have
filed,” and that “[p]laintiff’s jail file does not contain any grievance regarding the allegations
of his Complaint . . . .” (Doc. 48-2 ¶ 13; doc. 48-3 ¶ 10.)3 Furthermore, the affidavits state
that inmates are not afraid to submit grievances, nor are they oppressed or retaliated against
for doing so. (Doc. 48-1 ¶ 12; doc. 48-2 ¶ 15; doc. 48-3 ¶ 12; doc. 48-4 ¶ 12; doc. 48-6 ¶
29; doc. 49-1 ¶ 28.) According to defendants, no negative action may be taken against an
inmate for filing a grievance, and jail officers “are charged with the responsibility of
reporting infractions by fellow officers and reporting any problem to the senior officer
present immediately upon learning of the problem.” (Doc. 48-1 ¶¶ 8, 14; doc. 48-2 ¶¶ 10,
31; doc. 48-3 ¶¶ 7, 13; 48-4 ¶¶ 7, 13; doc. 48-6 ¶¶ 25, 31; doc. 49-1 ¶¶ 24, 30.)

3

Starr and Abernathy held these positions at all times plaintiff was incarcerated. (Doc.
48-2 ¶ 2; doc. 48-3 ¶ 2.)
3

Plaintiff responded by filing a seventy-five-page Affidavit in opposition to
defendants’ Motion for Summary Judgment. (Doc. 51). Plaintiff does not directly address
the exhaustion issue in his Affidavit, instead devoting most of his attention to detailing
defendants’ alleged wrongdoings. However, plaintiff does, in passing, make references to
“requests” and “complaints” that he made with jail officials. On several occasions, plaintiff
alleges that he “wrote” to Starr, Abernathy, and the custody supervisor requesting to be
placed into protective custody or reassigned to another dormitory. (Id. at 10-12, 28-29.) On
another occasion, plaintiff asked a corporal at the Calhoun County Jail how to appeal the
results of a disciplinary hearing because Abernathy had not provided him with an “appeal
form.” (Id. at 63.) The corporal advised plaintiff to file a grievance. (Id. at 64.) Plaintiff
“explained” to the corporal that “it would be somewhat unfashionable to file an . . . appeal
without a required letterhead . . . and its precise indication.” (Id.) Plaintiff therefore
“emulated a formal complaint” and gave it to an officer “to [e]nsure its deliver[y] to the jail
administer.” (Id.) Plaintiff also made several verbal requests and complaints: specifically,
he asked jail officers to be moved from his dormitory, (id. at 7-9, 22); he complained to an
officer about his cell conditions, (id. at 25); and he requested that officials provide him with
his prescription pain medication, (id. at 47, 54). Furthermore, plaintiff “submitted multiple
complaints” to medical personnel and custodial and administrative personnel concerning his
exposure to a contagious skin disease. (Id. at 70.) Lastly, plaintiff states that he submitted
a request to use the jail’s law library, to which he received no response. (Id. at 29-30.)

4

The PLRA requires the exhaustion of available administrative remedies as a
precondition to a prisoner filing suit. 42 U.S.C. § 1997e(a). Specifically, “[n]o 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.” Id. The PLRA mandates “proper
exhaustion,” meaning that “a prisoner must complete the administrative review process in
accordance with the applicable procedural rules . . . as a precondition to bringing suit in
federal court.” Woodford v. Ngo, 548 U.S. 81, 88 (2006); see Mason v. Bridger, 261 F.
App’x 225, 228 (11th Cir. 2008). “Proper exhaustion demands compliance with . . . [the]
critical procedural rules because no adjudicative system can function effectively without
imposing some orderly structure on the course of its proceedings.” Woodford, 548 U.S. at
90-91. Because the claims raised by plaintiff involve “prison conditions” for purposes of the
PLRA’s exhaustion requirement,4 summary judgment is due to be granted absent a factual
question as to whether plaintiff properly exhausted the administrative remedies available at
the Calhoun County Jail.
In the pending Report and Recommendation, the Magistrate Judge concluded that
plaintiff had not exhausted his administrative remedies because his Affidavit in opposition
to defendants’ Motion for Summary Judgment lacked “specific facts showing that he
properly followed the jail grievance procedure by placing those grievances in the appropriate
4

“[T]he PLRA’s exhaustion requirement applies to all inmate suits about prison life,
whether they involve general circumstances or particular episodes, and whether they allege
excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002).
5

lockbox designated for that purpose . . . [and his] vague statements regarding the exhaustion
issue are not sufficient to create a genuine issue for trial.” (Doc. 54 at 8-9 [emphasis in
original].)

In his Affidavit and Objection to the Magistrate Judge’s Findings and

Recommendations, (doc. 56), plaintiff maintains that he exhausted all available
administrative remedies but did not receive a response.5 Plaintiff also contends that he was
not required to exhaust the administrative grievance procedure because the remedies
available to him at the Calhoun County Jail did not include monetary damages.
After having carefully reviewed the pleadings, the submissions of the parties, the
record evidence, and the pending Report and Recommendation, (doc. 54), the court
concludes that plaintiff has not made a colorable showing that he complied with the
Calhoun County Jail grievance procedure for purposes of withstanding summary
judgment. The record evidence establishes that Calhoun County Jail maintains a
grievance procedure available to all inmates. The procedure requires that prisoners
submit Inmate Grievance Forms, Inmate Request Forms, and/or Medical Request Forms
in designated locked boxes. Neither in his seventy-five-page Affidavit in opposition to
defendant’s Motion for Summary Judgment, nor in his Affidavit and Objections to the
Magistrate Judge’s Findings and Recommendation, does plaintiff aver that he placed a
Inmate Grievance Form, Inmate Request Form, or Medical Request Form in the
appropriate locked box. Instead, plaintiff speaks of generalized “complaints” or

5

The objections are in large part a lengthy diatribe accusing the Magistrate Judge of
misconduct in the handling of plaintiff’s claims.
6

“requests” that he made with jail officials.6 Such an approach is not sufficient to create a
genuine issue of fact for purposes of summary judgment. See Leigh v. Warner Bros., Inc.,
212 F.3d 1210, 1217 (11th Cir. 2000) (“This court has consistently held that conclusory
allegations without specific supporting facts have no probative value.”); see also Sun v.
Girardot, 237 F. App’x 415, 417 (11th Cir. 2007) (conclusory allegations are “legally
insufficient to defeat summary judgment”). Once defendants carried their burden of
proof, it was incumbent upon plaintiff to present specific facts which show that he
properly exhausted his administrative grievance remedies at the Calhoun County Jail.
Woodford, 548 U.S. at 88-91. The Magistrate Judge correctly concluded that the plaintiff
has failed in that regard.
The Magistrate Judge also correctly concluded that the PLRA exhaustion
requirements were applicable to the plaintiff’s claims in this action, even if monetary
recovery was unavailable to the plaintiff in the jail grievance process. See id. at 85 (“[A]
prisoner must now exhaust administrative remedies even where the relief

6

Plaintiff directs the court to the “copies” of grievances and requests that he submitted
with his objections to the Magistrate Judge’s first Report and Recommendation as direct
evidence that he exhausted his administrative remedies. However, these alleged “copies” of
grievances and requests are not photocopies. Instead, these “copies” are actually handwritten
originals that plaintiff submitted to the court with the word “copy” written thereon. To that end,
these “copies” are not admissible as duplicates under Rule 1003 of the Federal Rules of
Evidence. See Fed. R. Evid. 1001(e) (“A ‘duplicate’ means a counterpart produced by a
mechanical, photographic, chemical, electronic, or other equivalent process or technique that
accurately reproduces the original.”); Fed. R. Evid. 1001 advisory committee notes (“Copies
subsequently produced manually, whether handwritten or typed, are not within the definition [of
‘duplicates’].”) Even assuming they were admissible, the fact remains that plaintiff has not
presented any evidence that he filed these grievances and requests in the appropriate locked
boxes as required by the Calhoun County Jail grievance procedure.
7

sought—monetary damages—cannot be granted by the administrative process.”); Johnson
v. Meadows, 418 F.3d 1152, 1155 (11th Cir. 2005) (“[The PLRA] mandates strict
exhaustion, ‘irrespective of the forms of relief sought and offered through administrative
avenues.’” (quoting Booth v. Churner, 532 U.S. 731, 741 n.6 (2001))).
Accordingly, having carefully reviewed and considered de novo all the materials in
the court file, including the Magistrate Judge’s Report and Recommendation, (doc. 54),
and the objections thereto, (doc. 56), the court concludes that the Report and
Recommendation is due to be ADOPTED and his recommendation is due to be
ACCEPTED. The court expressly finds that there are no genuine issues of material fact
and that the defendants are entitled to judgment as a matter of law. The defendants’
Motion for Summary Judgment, (doc. 46), is therefore due to be GRANTED and this
action is due to be DISMISSED WITH PREJUDICE pursuant to 42 U.S.C. § 1997e(a).7
A Final Judgment will be entered. Plaintiff’s Motion for Enlargement of Time to File
Objections, (doc. 55), is due to be DENIED AS MOOT.
DONE this 29th day of March, 2013.

SHARON LOVELACE BLACKBURN
CHIEF UNITED STATES DISTRICT JUDGE
7

The Eleventh Circuit has noted that dismissal with prejudice is appropriate when
“administrative remedies have become unavailable after the prisoner had ample opportunity to
use them and no special circumstances justified failure to exhaust.” Bryant v. Rich, 530 F.3d
1368, 1375 (11th Cir. 2008) (quoting Berry v. Kerik, 366 F.3d 85, 87-88 (2d Cir. 2004)) (internal
quotations marks omitted). Here, dismissal with prejudice is appropriate because plaintiff is no
longer incarcerated at Calhoun County Jail and no special circumstances exist justifying his
failure to exhaust the jail’s administrative remedies.
8