Blair v. Sullivan et al

Filing 34

MEMORANDUM OPINION Signed by Judge Karon O Bowdre on 9/26/13. (SAC )

FILED
2013 Sep-26 PM 12:57
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
JEROME LEE BLAIR,

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) Case No. 5:11-cv-02642-KOB-MHH
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Plaintiff ,
v.
DETENTION OFFICER
SULLIVAN, et al.,
Defendants.

MEMORANDUM OPINION
Plaintiff, Jerome Lee Blair, filed a pro se complaint pursuant to 42 U.S.C. §
1983. In his complaint, Mr. Blair alleges that rights, privileges, or immunities
afforded him under the Constitution or laws of the United States were abridged
during his incarceration at the Madison County Detention Facility in Huntsville,
Alabama. Mr. Blair has been released from custody. For the reasons stated below,
this action is due to be dismissed pursuant to 42 U.S.C. § 1997e(a) because Mr. Blair
failed to exhaust his administrative remedies. Furthermore, Mr. Blair’s request for
injunctive relief is moot.
I. PROCEDURAL HISTORY
Mr. Blair initiated this action on February 11, 2011. (Doc. 2, p. 3). He names

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as defendants Detention Officers Sullivan, Long, and McCall. (Doc. 2, p. 1). On
November 28, 2011, the court ordered the defendants to file a Special Report. In its
order, the court advised Mr. Blair that after he received a copy of the defendants’
Special Report, he should file counter-affidavits if he wished to rebut the factual
matters in the defendants’ Special Report. (Doc. 15).
On March 9, 2012, defendants filed their Special Report. (Doc. 22). The court
notified Mr. Blair that the court would construe the defendants’ Special Report as a
motion for summary judgment, and he had twenty days to respond by filing affidavits
and other material, and advised him of the consequences of default or failure to
comply with Fed. R. Civ. P. 56. (Doc. 23). Mr. Blair did not file a response.
II. SUMMARY JUDGMENT STANDARD
In considering a motion for summary judgment, the court must determine
whether the moving party is entitled to judgment as a matter of law. Summary
judgment may be granted only if no genuine issues of material fact are present, and
the movant is entitled to judgment as a matter of law. See FED. R. CIV. P. 56. In
making that assessment, the court must view the evidence in the light most favorable
to the non-moving party and must draw all reasonable inferences against the moving
party. Chapman v. AI Transp., 229 F.3d 1012, 1023 (11th Cir. 2000).
Initially, a defendant must establish his prima facie entitlement to summary
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judgment by showing no genuine issues of material fact exist and that he should
prevail as a matter of law. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.
1989). If the defendant does so, then the plaintiff, who carries the ultimate burden of
proving his action, must raise disputed factual issues that a trier of fact must resolve.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Bennett v. Parker, 898 F.2d
1530, 1532-33 (11th Cir. 1990).
Facts in dispute cease to be “material” facts when the plaintiff fails to
establish a prime facie case. “In such a situation, there can be ‘no
genuine issue as to any material fact,’ since a complete failure of proof
concerning an essential element of the [plaintiff’s] case necessarily
renders all other facts immaterial.”
Bennett, 898 F.2d at 1532 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986)).
The court must consider “specific facts” pled in a pro se plaintiff’s sworn
complaint when evaluating a motion for summary judgment. Perry v. Thompson, 786
F.2d 1093, 1095 (11th Cir. 1986).
III. SUMMARY JUDGMENT FACTS1
Mr. Blair was incarcerated in the Madison County Detention Facility at various
times between 2007 and 2010. (Doc. 22-1, pp. 5-38, App. A at A1-A34). Each time

1

Applying the foregoing summary judgment standard, the following facts appear to be
undisputed or, if disputed, are presented in the light most favorable to Mr. Blair. Factual disputes
raised by a particular defendant are described in footnotes.
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he was booked into the Detention Facility, Mr. Blair indicated during his medical
screening that he suffers from periodic seizure episodes. (Doc. 22-1, pp. 40-42, 4460, App. B at B1-B3, B5-B21). Mr. Blair also complained of throat pain and an
inability to speak on occasion. (Doc. 22-1, pp. 80, 88, 93, 101, App. C at C19, C27,
C32, C40).
October 13, 2010 Altercation with Officers Sullivan, Long, and McCall
On October 12, 2010, Mr. Blair was booked into the Madison County
Detention Facility on first degree robbery charges. (Doc. 22-1, p. 14, App. A at A10).
The following day, as Officer DeOnte’ Sullivan moved inmates to their appropriate
housing units in the Detention Facility, he saw and heard Mr. Blair yelling to other
inmates through the glass door of Unit F. (Doc. 22, p. 5, ¶¶ 5-6). The area around the
glass door of Unit F is restricted because inmates in this area can see inmates in other
housing units. (Id. at ¶ 7). Officer Sullivan began yelling and cursing at Mr. Blair
and other inmates to back away from the glass door. Mr. Blair responded, “Yes,
sir,” and began moving away.2 (Doc. 2, p.5).
Officer Sullivan pointed to Mr. Blair and told him to stand where he was.
2

Officer Sullivan asserts that he gave Mr. Blair multiple orders over the Detention
Facility’s intercom system to stop yelling through the door and to leave the restricted area, but
Mr. Blair refused to comply. (Doc. 22-2, Sullivan Aff. ¶¶ 9, 11). Officer Sullivan went to open
the door and again ordered Mr. Blair to stop yelling and to leave the restricted area. (Id. ¶ 12).
Officer Sullivan contends that when he opened the door, Mr. Blair stated, “‘I’m a grown ass man
and don’t have to go anywhere.’” (Id. ¶ 13).
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Officer Sullivan came back about five minutes later and began yelling and cursing at
Mr. Blair. Mr. Blair walked away from Officer Sullivan, but Sullivan grabbed Mr.
Blair by his shirt and pulled him to the door where Officer Joy McCall was standing.
Officer McCall tried unsuccessfully to stun Mr. Blair with her Taser. Officer James
Long swung the door open, and Mr. Blair fell to the ground. Officer Long held down
Mr. Blair’s legs, and Officer Sullivan began hitting Mr. Blair. Mr. Blair claims he
“start[ed] to black out.”3 (Doc. 2, p. 5).
3

Officer Sullivan reports that Mr. Blair approached him, grabbed him around his waist,
and lifted him off the ground. (Doc. 22-2, Sullivan Aff. ¶¶ 14-15). Officer Sullivan contends
that he began struggling with Mr. Blair to break free. (Id. ¶ 16). According to Officer Sullivan,
Officer McCall came to assist him, and he eventually was able to wrestle Mr. Blair to the ground.
Id. ¶¶ 18-20). Officer Sullivan argues that he only used the amount of force necessary to
overcome Mr. Blair’s attack. (Id. ¶ 23).
Officer Joy McCall contends that on October 13, 2010, at approximately 12:55 p.m., she
was in the Detention Facility in the control booth near Unit F. (Doc. 22-3, McCall Aff. ¶ 5). She
heard Officer Sullivan order Mr. Blair to stop yelling through the door to Unit F. (Id. ¶ 6).
Officer McCall states that a few moments later, she saw Mr. Blair approach Officer Sullivan near
the door to Unit F, grab Officer Sullivan, and lift Officer Sullivan off the ground. (Doc. 22-3,
McCall Aff. ¶ 7). She states that she sent an alert over the Detention Facility’s radio system,
asking for assistance for Officer Sullivan, and she went to assist him. (Id. ¶ 8).
While approaching Mr. Blair and Officer Sullivan, Officer McCall claims she repeatedly
ordered Mr. Blair to stop resisting and to lie on the ground. (Id. ¶ 9). When he did not, Officer
McCall removed the projectile prongs from her Taser and stunned Mr. Blair once on the right
side of his abdomen. (Id.). Officer Sullivan subsequently wrestled Mr. Blair to the ground. (Id.
¶ 10). After Mr. Blair was on the ground, Officers Shawn Maloney and James Long helped
restrain Mr. Blair while Officer McCall placed handcuffs on him. (Doc. 22-3, McCall Aff. ¶ 11).
Officer James Long states that on October 13, 2010, he was in the Detention Facility in
Unit G with Officer Shawn Maloney assisting in inmate housing moves. (Doc. 22-4, Long Aff. ¶
5). While he was in Unit G, he heard a commotion in Unit F and heard inmates in Unit F yelling
“fight.” (Id. ¶ 6). When Officer Long arrived in Unit F, he saw Officer Sullivan on the ground
on top of Mr. Blair struggling to gain control of him. (Id. ¶ 8). Officer Long gained control of
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Once Mr. Blair was restrained, Officer Sullivan escorted him to a multipurpose room for medical treatment. (Doc. 22-2, Sullivan Aff. ¶ 24). Nurse Gladys
Rogers noted a “small opened area” under Mr. Blair’s right eye and a one inch opened
area on Mr. Blair’s left ear. Nurse Rogers cleaned the areas and applied Steri-Strip
bandages. (Doc. 22-1, p. 67, App. C at C6). Mr. Blair requested medicine for pain,
but the defendants quickly put him in lock-up without providing pain medication.
(Doc. 2, p. 5). Mr. Blair claims he has not been able to speak since the alleged
assault.

(Doc. 2, p. 6).

One day after the altercation, on October 14, 2010, Mr. Blair suffered a seizure.
A physician examined and treated Mr. Blair. (Doc. 22-1, p. 69, App. C at C8).
On February 17, 2011, Mr. Blair filed an Inmate Grievance Form, claiming that
Officer Sullivan “beat [him] up.” Mr. Blair stated that he feared for his life and asked
to be kept away from Officer Sullivan. Mr. Blair did not allege in his grievance that
Officers McCall or Long used excessive force against him. (Doc. 22-1, p. 83, App.
C at C22).
Sergeant Kelly Dunn investigated Mr. Blair’s grievance, determined that it was
Mr. Blair’s legs while Officer Maloney helped gain control of Mr. Blair’s upper body and arms.
(Id. ¶¶ 9-10).
Defendants deny using any force against Mr. Blair once he was restrained. (Doc. 22-2,
Sullivan Aff. ¶¶ 12, 22; Doc. 22-4, Long Aff. ¶ 12). They also deny kicking, punching, or hitting
Mr. Blair. (Doc. 22-2, Sullivan Aff. ¶¶ 15, 32; Doc. 22-4, Long Aff. ¶ 17).
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unfounded, and denied Mr. Blair’s request on February 17, 2011. (Doc. 22-1, p. 83,
App. C at C22; Doc. 22-5, p. 2, Dunn Aff. ¶¶ 11-12). On February 18, 2011,
Lieutenant Setzer reviewed Sergeant Dunn’s response to Mr. Blair’s grievance. (Doc.
22-1, p. 83, App. C at C22).
If an inmate wishes to appeal the resolution of his grievance, he has “five (5)
working days to file an appeal with the Sheriff.” (Doc. 22-1, p. 125, App. D at D2).
The Sheriff will review the resolution and “will have ten (10) working days to
respond to the inmate’s appeal.” (Id.). According to Detention Officer Robin Baker,
the custodian of inmate records for the Sheriff of Madison County, Alabama, “there
are no records whatsoever showing that Jerome Lee Blair made any effort to appeal
the denial of his February 17, 2011 grievance request to the Sheriff of Madison
County, Alabama.” (Doc. 22-1, pp. 1-3, Baker Aff., ¶¶ 4, 12).
Medical Treatment
Mr. Blair alleges broadly that he did not receive adequate medical care while
he was incarcerated at the Madison County Detention Facility. In his complaint, he
contends:
I filled out several request forms to see the doctor about my medications.
I also filled out grievance forms to get my medications but never did at
all until one day. I went into a seizure (a conversation [sic] disorder)
which called me into losing my speech, and still I have not been seen
about it yet.
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Every time I put a sick-call clip in to be seen about my eye and about the
headaches that I get, I’ve been denied medical treatment. I have no
speech at all. I had a seizure after they beat me up [and] I have not been
able to speak a word since. I have to write on paper to communicate.
(Doc. 2, p. 6).
The record demonstrates that on November 4, 2010 and November 8, 2010, Mr.
Blair submitted Sick Call Request Forms to obtain prescriptions. The medical staff
filled those prescriptions. (Doc. 22-1, pp.70-71, App. C at C9-C10).
On November 28, 2010, Mr. Blair complained that his lip was swollen and he
had a headache. (Doc. 22-1, pp. 72-73, App. C at C11-C12). On the same date,
medical staff examined Mr. Blair and gave him a prescription for Benadryl. (Id. at
C12).
On December 4, 2010, Mr. Blair complained of pain in his right eye and vision
problems. (Id. at C13). On December 6, 2010, medical staff examined Mr. Blair and
ordered that he be seen by a doctor. (Id. at C14).
On December 14, 2010, Mr. Blair complained that he could not talk and that
something was wrong with this throat. (Doc. 22-1, p. 76, App. C at C15). Medical
staff noted on Mr. Blair’s Sick Call Request Form that he was to see the doctor on
December 29, 2010. (Id.).
On December 27, 2010, Mr. Blair suffered a seizure. (Id. at p. 77, C16).
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Medical staff assessed Mr. Blair and moved him to the medical facility for
observation. (Id. at pp. 78-79, C17-C18). Medical staff noted again that Mr. Blair
was to see the doctor on December 29, 2010. (Id. at p. 79, C18).
On February 14, 2011, Mr. Blair complained that his throat hurt and that he had
been without his voice for three months. (Doc. 22-1, p. 81, App. C at C20). Mr.
Blair’s medical records indicate that he was to see the doctor on February 17, 2011.
(Id.).
On July 4, 2011, Mr. Blair stated that his teeth were hurting. (Id. at p. 82,
C21). He was placed on a list to see the dentist. (Id.).
On this record, the court considers the defendants’ motion for summary
judgment.
IV. DISCUSSION
A.

Exhaustion of Administrative Remedies.
Defendants argue that the court should dismiss Mr. Blair’s claims because he

did not exhaust his administrative remedies. In Bryant v. Rich, the Eleventh Circuit
Court of Appeals held that the exhaustion defense “is not ordinarily the proper subject
for a summary judgment; instead, it ‘should be raised in a motion to dismiss, or be
treated as such if raised in a motion for summary judgment.’” Bryant v. Rich, 530
F.3d 1368, 1375 (11th Cir. 2008) (quoting Ritza v. Int’l Longshoremen’s &
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Warehousemen’s Union, 837 F.2d 365, 368-69 (9th Cir. 1988)). Therefore, the court
will consider whether Mr. Blair properly exhausted his administrative remedies using
the standard set forth in Bryant.
Bryant instructs that, in evaluating an exhaustion defense, a court first “looks
to the factual allegations in the defendant’s motion to dismiss and those in the
plaintiff’s response, and if they conflict, takes the plaintiff’s version of the facts as
true.” Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008) (citing Bryant, 530
F.3d at 1373-74). “If, in that light, the defendant is entitled to have the complaint
dismissed for failure to exhaust administrative remedies, it must be dismissed.” Id.
The exhaustion requirement is statutory. In 1996, Congress enacted the Prison
Litigation Reform Act of 1995, Pub. L. No. 104-134, 110 Stat. 1321 (1996)
(“PLRA”) in an attempt to control a flood of prisoner lawsuits. Title 42 U.S.C. §
1997e(a), as amended by the PLRA, provides:
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). Under Section 1997e, exhaustion of administrative remedies
is mandatory even if the applicable exhaustion procedures do not meet “minimum
acceptable standards” of fairness; courts may not excuse exhaustion even when it

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would be “appropriate and in the interest of justice.” Booth v. Churner, 532 U.S. 731,
740, n.5 (2001).
Mr. Blair’s excessive force allegations concern the conditions under which he
was confined at the Madison County Detention Facility. The Detention Facility has
an Inmate Grievance Policy to address prisoner complaints about the facility’s
conditions. Under the policy, an inmate who has a grievance must ask a detention
officer for a “Grievance Form.” (Doc. 22-1, pp.124-125, App. D at D1-D2). The
inmate must complete the form and include complete details of the alleged grievance.
When an inmate submits a completed Grievance Form, a detention officer transmits
the form to the Shift Supervisor on duty. Based on the nature of the grievance, either
the Shift Supervisor, the Division Commander, or the next officer in command must
examine the grievance and note in the space provided on the form the Facility’s
response to the grievance. A written record of the grievance resolution must be
provided to the complaining inmate within 30 days from the date on which he
submitted his grievance form. If an inmate is not satisfied with the result, he has “five
(5) working days to file an appeal with the Sheriff.” The Sheriff must review the
disposition of the grievance and respond to the inmate’s appeal within ten working
days. (Id.).
On February 17, 2011, Mr. Blair filed an Inmate Grievance Form, complaining
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that Officer Sullivan “beat [him] up.” (Doc. 22-1, p. 83, App. C at C22). Mr. Blair
stated that he feared for his life, and he asked to be kept away from Officer Sullivan.
Sergeant Kelly Dunn investigated Mr. Blair’s grievance, determined that it was
unfounded, and denied Mr. Blair’s request on February 17, 2011. On February 18,
2011, Lieutenant Setzer approved Sergeant Dunn’s resolution of Mr. Blair’s
grievance. (Id.).
Mr. Blair did not appeal the denial of his grievance request to the Madison
County Sheriff. Therefore, Mr. Blair did not exhaust his grievance with respect to
Officer Sullivan. Mr. Blair did not file a grievance concerning Officer Sullivan’s codefendants, Officers Long and McCall.
Because Mr. Blair failed to fully utilize the Madison County Detention
Center’s Inmate Grievance Policy concerning his complaints against Officers
Sullivan, Long, and McCall, his Eighth Amendment excessive force claims against
the defendants are due to be dismissed without prejudice pursuant to 42 U.S.C. §
1997e(a).
B.

Injunctive Relief.
Even if Mr. Blair had exhausted his administrative remedies, the court still

would dismiss his claims because his requests for relief are moot. Mr. Blair seeks
only injunctive relief regarding his claims against Officers Sullivan, Long, and
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McCall. Specifically, Mr. Blair asks the court to suspend the defendants and to enter
a restraining order against them. (Doc. 2, p. 3). On September 27, 2011, Mr. Blair
notified the court that he has been released from the Madison County Detention
Facility. (Doc. 11). “Absent class certification, an inmate’s claim for injunctive and
declaratory relief in a section 1983 action fails to present a case or controversy once
the inmate has been transferred.” Wahl v. McIver, 773 F.2d 1169, 1173 (11th Cir.
1985). “Past exposure to illegal conduct does not in itself show a pending case or
controversy regarding injunctive relief if unaccompanied by any continuing, present
injury or real and immediate threat of repeated injury.” Cotterall v. Paul, 755 F.2d
777, 780 (11th Cir. 1985). Because Mr. Blair no longer is incarcerated at the
Madison County Detention Facility and has alleged no present injury or immediate
threat of repeated injury, his request for injunctive relief is moot.
In addition to requesting injunctive relief in connection with his claims against
Officers Sullivan, Long, and McCall, in the “Relief” section of his complaint, Mr.
Blair states: “I want a [lawsuit] against Sheriff Doughtre and the Madison County Jail
and the medical staff.” (Doc. 2, p. 3). Mr. Blair does not name those individuals or
the Madison County Jail as parties to this action. (Doc. 2, p. 1). Although he alleges
in general terms that the medical care that he received while he was incarcerated was
unsatisfactory, Mr. Blair offers no specific allegations concerning Sheriff Doughtre,
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the Madison County Jail, or “the medical staff.” If Mr. Blair wishes to pursue legal
claims against Sheriff Doughtre, the jail, or the medical staff, he must do so in a
separate action; there is no claim for the court to address in this action.
V. CONCLUSION
For the foregoing reasons, the Court grants the defendants’ motion for
summary judgment.

A Final Judgment will be entered consistent with this

Memorandum of Opinion. The Clerk of Court is DIRECTED to serve a copy of this
Memorandum of Opinion upon the parties.
DONE and ORDERED this 26th day of September, 2013.

____________________________________
KARON OWEN BOWDRE
UNITED STATES DISTRICT JUDGE

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