Davis v. Wilkerson

Filing 20

REPORT AND RECOMMENDATIONS that 11 MOTION for Summary Judgment filed by S Wilkerson be granted. Objections to R&R due by 12/9/2008. Signed by Magistrate Judge Beth Deere on 11/25/08. (bkp)

IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS WESTERN DIVISION B R A N A G E R QUINTELL DAVIS V. S . WILKERSON C A S E NO.: 4:07CV01225 JLH/BD DEFENDANT P L A IN T IF F

R E C O M M E N D E D DISPOSITION I. P r o c e d u r e for Filing Objections: T h e following recommended disposition has been sent to Chief United States D istric t Court Judge J. Leon Holmes. Any party may serve and file written objections to th is recommendation. Objections should be specific and should include the factual or le g a l basis for the objection. If the objection is to a factual finding, specifically identify th a t finding and the evidence that supports your objection. An original and one copy of yo u r objections must be received in the office of the United States District Court Clerk no la te r than eleven (11) days from the date you receive the Partial Recommended D isp o sitio n . A copy will be furnished to the opposing party. Failure to file timely o b jec tio n s may result in waiver of the right to appeal questions of fact. M a il your objections and "Statement of Necessity" to: C lerk , United States District Court E a ste rn District of Arkansas 6 0 0 West Capitol Avenue, Suite A149 L ittle Rock, AR 72201-3325

II.

B a c k gro u n d : P lain tiff Branager Quintell Davis, a former detainee at the Faulkner County

D e te n tio n Facility, filed a pro se Complaint under 42 U.S.C. § 1983. He is proceeding in fo rm a pauperis. In his Complaint, Plaintiff alleges that Defendant Wilkerson used e x c es s iv e force against him by shooting him in the back with a taser gun on November 1 0 , 2007. Now pending is Defendant Wilkerson's motion for summary judgment (docket e n try #11). Defendant Wilkerson argues that she is entitled to judgment as a matter of la w because: (1) she did not use excessive force in restraining Plaintiff; (2) Plaintiff failed to exhaust his administrative remedies; (3) Plaintiff did not sustain a physical injury d u rin g the incident in question; and (4) she is entitled to qualified immunity. T h e Court previously provided Plaintiff additional time to respond to the motion w ith evidence of his own, specifically requesting that Plaintiff provide proof that he e x h a u ste d his administrative remedies before filing this lawsuit. Plaintiff has failed to re sp o n d to the motion. The Court recommends that Defendant Wilkerson's motion for s u m m a ry judgment (#11) be GRANTED. III. D is c u s s io n : A. S u m m a r y Judgment Standard

S u m m a r y judgment is appropriate when the evidence, viewed in the light most f a v o ra b le to the nonmoving party, presents no genuine issue of material fact. FED. R.

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C IV. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty L o b b y , Inc., 477 U.S. 242, 246 (1986). Once the moving party has successfully carried its b u rd e n under Rule 56(c), the nonmoving party has an affirmative burden to go beyond the p le a d in g s and by depositions, affidavits, or otherwise, designate "specific facts showing th a t there is a genuine issue for trial." FED. R. CIV. P. 56(e); Mosley v. City of N o r th w o o d s , 415 F.3d 908, 910-11 (8th Cir. 2005) ("The nonmoving party may not rest o n mere allegations or denials, but must demonstrate on the record the existence of sp ec ific facts which create a genuine issue for trial.") If the opposing party fails to carry th a t burden or fails to establish the existence of an essential element of its case on which th a t party will bear the burden of proof at trial, summary judgment should be granted. See Celotex, 477 U.S. at 322. "Although it is to be construed liberally, a pro se complaint m u s t contain specific facts supporting its conclusions." Martin v. Sargent, 780 F.2d 1 3 3 4 , 1337 (8th Cir. 1985). B. F a ilu r e to Exhaust Administrative Remedies

D e f en d a n t Wilkerson contends that Plaintiff failed to exhaust his administrative re m e d ie s before filing this action and that the case should be dismissed with prejudice. Congress enacted the Prisoner Litigation Reform Act ("PLRA") to "reduce the quantity a n d improve the quality of prisoner suits." Porter v. Nussle, 534 U.S. 516, 424 (2002). The PLRA requires administrative exhaustion prior to the commencement of a lawsuit c h a lle n g in g prison conditions. "No action shall be brought with respect to prison

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c o n d itio n s under § 1983 of this title, or any other Federal law, by a prisoner confined in an y jail, prison, or other correctional facility until such administrative remedies as are a v a ilab le are exhausted." 42 U.S.C. § 1997e(a); Booth v. Churner, 532 U.S. 731, 738 (2 0 0 1 ) (holding that available remedies "must be exhausted before a complaint under § 1983 may be entertained"). Exhaustion "applies to all inmate suits about prison life, w h e th e r they involve general circumstances or particular episodes, and whether they a lle g e excessive force or some other wrong." Porter, 534 U.S. at 532. The Court of A p p e a ls for the Eighth Circuit has held that "[u]nder the plain language of 1997e(a), an in m a te must exhaust administrative remedies before filing suit in federal court. . . . If e x h a u stio n was not completed at the time of filing, dismissal is mandatory." Johnson v. J o n e s, 340 F.3d 624, 627 (8th Cir. 2003)(emphasis original). Recently, the Supreme Court has explained that failure to exhaust is an " a f f irm a tiv e defense" under the PLRA and that "inmates are not required to specifically p le a d or demonstrate exhaustion in their complaints." Jones v. Block, __ U.S.__, 127 S .C t. 910, 921 (2007). Thus, defense motions based on failure to exhaust are properly b ro u g h t as motions for summary judgment and not as motions to dismiss, unless it a p p e a rs from the face of the prisoner's complaint that there has been a failure to exhaust, w ith no justification for the failure. W ith his motion, Defendant Wilkerson submits the declaration of Bobby Brown. In the declaration, Mr. Brown states that he has examined Plaintiff's inmate file and has

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f o u n d no documentation of any grievance regarding the November 10, 2007 incident (#14 a t p.3). According to Defendant Wilkerson's motion, Plaintiff did file other grievances w h ile detained at the Faulkner County Detention Facility, but those grievances do not re late to the November 10, 2007 incident.1 A s a matter of law, the administrative process must be completely exhausted prior to the filing of a lawsuit challenging prison conditions. 42 U.S.C. § 1997e(a). Because P lain tiff has not provided documentation showing that he fully exhausted his ad m inistrat iv e remedies to rebut the evidence provided by the Defendant, the Plaintiff's c la im s against Defendant Wilkerson should be dismissed for failure to exhaust as required b y the PLRA.2 IV . C o n c lu s io n : T h e Court recommends that Defendant Wilkerson's motion for summary judgment ( # 1 1 ) be GRANTED and that all claims be DISMISSED, without prejudice, against D e f en d a n t Wilkerson.

The Court notes that Plaintiff requests Sgt. Wilkerson's first name in one of the g rie v a n c e forms attached to the motion. However, Plaintiff does not describe the events g iv in g rise to this lawsuit in that grievance form. Further, Plaintiff specifically states in his Complaint that he did not fully exhaust h is administrative remedies before filing the instant lawsuit (#2 at p.4). 5
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D A T E D this 25th day of November, 2008.

___________________________________ U N IT E D STATES MAGISTRATE JUDGE

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