Johnson v. Norris et al

Filing 116

RECOMMENDED DISPOSITION recommending 77 Defendants' Motion for Summary Judgment be granted. Objections to R&R due by 10/14/2009. Signed by Magistrate Judge Beth Deere on 9/30/09. (hph)

IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS P I N E BLUFF DIVISION R O B E R T SINGLETON JOHNSON, JR. A D C # 136702 V. L A R R Y NORRIS, et al. C A S E NO. 5:08CV00113-JMM-BD DEFENDANTS

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 United States District C o u rt Judge James M. Moody. Any party may serve and file written objections to this re c o m m e n d a tio n . Objections should be specific and should include the factual or legal b a s is for the objection. If the objection is to a factual finding, specifically identify that f in d in g and the evidence that supports your objection. An original and one copy of your o b je c tio n s must be received in the office of the United States District Court Clerk no later th a n eleven (11) days from the date you receive the recommended disposition. A copy w ill be furnished to the opposing party. Failure to file timely objections may result in w a iv e r of the right to appeal questions of fact. M a il your objections and "Statement of Necessity" to: C le rk , United States District Court E a s te rn District of Arkansas 6 0 0 West Capitol Avenue, Suite A149 L ittle Rock, AR 72201-3325

II.

B ackground: P la in tif f , an inmate currently incarcerated at Randall Williams Correctional

F a c ility of the Arkansas Department of Correction ("ADC"), filed this lawsuit under 42 U .S .C . § 1983 (docket entry #2). Plaintiff alleges that on or about December 26, 2007, he w a s stabbed by a fellow inmate while working in the garment factory at the Cummins U n it of the ADC. Plaintiff complains that various ADC staff members failed to protect h im from the attack. Plaintiff names as Defendants Larry Norris, Ray Hobbs, Larry May, G a ylo n Lay, Danny Burl, William Straughn, Clint Stanely, Cliff Collins, Jerry Campbell, M a rie Linzy, Wendy Kelley, and V.R. Robertson (the "ADC Defendants").1 T h e ADC Defendants have filed a motion for summary judgment (#77). In their m o tio n , the ADC Defendants argue that Plaintiff's claims fail as a matter of law because: (1 ) Plaintiff has failed to exhaust his administrative remedies against them; (2) they are e n title d to qualified immunity; (3) negligence is not actionable under § 1983; (4) respondeat superior does not apply to § 1983 claims; and (5) they are entitled to s o v e re ig n immunity. Plaintiff has responded to the ADC Defendants' motion (#102). In his response, P la in tif f argues that the ADC Defendants were aware of the risk of danger posed in the

The docket in this matter identifies Defendant Danny Burl as Danny Burls and D e f e n d a n t Larry May as Larry Mays. The ADC Defendants refer to these individuals as D a n n y Burl and Larry May. The Court also will refer to these individuals as Defendants B u rl and May. 2

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garment factory, but failed to remedy the situation. Plaintiff claims that inmates assigned to work in the garment factory were routinely issued sharp instruments, but were not a d e q u a te ly supervised. He also alleges that the ADC Defendants failed to provide the s e c u rity necessary to protect inmates in the garment factory. In addition, Plaintiff states th a t he has fully exhausted his administrative remedies. T h e Court has reviewed all of the evidence submitted in this matter. Based upon th e evidence presented, Plaintiff did not exhaust his administrative remedies with regard to the ADC Defendants as required by the Prison Litigation Reform Act ("PLRA"). Accordingly, the Court recommends that the ADC Defendants' motion (#77) should be G R A N T E D .2 III. D is c u s s io n : A. S ta n d a rd

S u m m a ry 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. 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

Because Plaintiff has failed to exhaust his administrative remedies against the A D C Defendants, the Court does not address the other arguments raised by the ADC D e f e n d a n ts in their motion for summary judgment in this recommendation. 3

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that 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 s p e c if ic 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. B. E x h a u s tio n

T h e ADC Defendants contend that Plaintiff failed to exhaust his claims against th e m as required by the PLRA. Congress enacted the PLRA to "reduce the quantity and im p ro v e the quality of prisoner suits." Porter v. Nussle, 534 U.S. 516, 424, 122 S.Ct. 983 (2 0 0 2 ). The PLRA requires administrative exhaustion prior to the commencement of a la w s u it challenging prison conditions. "No action shall be brought with respect to prison c o n d itio n s under § 1983 of this title, or any other Federal law, by a prisoner confined in a n y jail, prison, or other correctional facility until such administrative remedies as are a v a ila b le are exhausted." 42 U.S.C. § 1997e(a); Booth v. Churner, 532 U.S. 731, 738, 1 2 1 S.Ct. 1819 (2001) (holding that available remedies "must be exhausted before a c o m p la in t under § 1983 may be entertained"). The purposes of the exhaustion requirement include "allowing a prison to address c o m p la in ts about the program it administers before being subjected to suit, reducing

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litigation to the extent complaints are satisfactorily resolved, and improving litigation that d o e s occur by leading to the preparation of a useful record." Jones v. Bock, 549 U.S.199, 1 2 7 S.Ct. 910, 923 (2007); see also Woodford v. Ngo, 548 U.S. 81, 126 S.Ct. 2378, 2385 (2 0 0 6 ). In Jones, the Supreme Court clarified that "the level of detail necessary in a g rie v a n c e to comply with the grievance procedures will vary from system to system and c la im to claim, but it is the prison's requirements, and not the PLRA, that define the b o u n d a rie s of proper exhaustion." Jones, 127 S.Ct. at 923. H e re , the evidence presented by the parties indicates that Plaintiff filed two g rie v a n c e s regarding the incident giving rise to this lawsuit, CU-08-00036 and CU-080 0 0 3 7 . In his first grievance, CU-08-00036, dated December 31, 2007, Plaintiff s p e c if ic a lly states that his grievance concerns the lack of security in the garment factory. Plaintiff complains that the "ADC was negligent" by failing to provide adequate security to prevent the attack he suffered. He does not identify any of the ADC Defendants by n a m e in grievance CU-08-00036. In the second grievance, CU-08-00037, dated January 5, 2008, Plaintiff complains th a t he is "still in pain" and that he is experiencing serious headaches as a result of the a tta c k . Plaintiff states that this grievance is being submitted as a supplement to the D e c e m b e r 31, 2007 grievance. Plaintiff claims that his injury is a result of the negligence " o n behalf of the ADC and all other parties associated with the ADC."

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In grievance CU-08-00037, Plaintiff again states that there was a lack of adequate s e c u rity in the garment factory and that, as a result, he has suffered "grave injury." The o n ly ADC Defendant referenced in grievance CU-08-00037 is Defendant Price. In his re s p o n s e to the ADC Defendants' motion for summary judgment, Plaintiff describes this g rie v a n c e as "more of a medical nature." (#102 at p.6) 3 1. D e f e n d a n ts Linzy, Robertson, Collins, Straughn, Burl, Lay, and Campbell

In their motion, the ADC Defendants argue that because they are not mentioned by n a m e in Plaintiff's grievances, Plaintiff has failed to exhaust his administrative remedies a g a in s t them. In support of their argument, the ADC Defendants attach to their motion e x c e rp ts from Plaintiff's deposition in which Plaintiff admits that he did not file any g rie v a n c e s regarding Defendants Linzy, Robertson, Collins, Straughn, Burl, Lay, and C a m p b e ll. (#79-2 at p.16, 17, 18, 19) In response to the ADC Defendants' motion, Plaintiff argues that during his d e p o s itio n , he testified that when he referred to the ADC in his grievances, he was re f e rrin g to any person that he believed was involved in the incident. Although Plaintiff m a d e such a statement during his deposition, he did not file any grievances regarding

According to the declaration of Janet Butler attached to the ADC's motion for s u m m a ry judgment, grievance CU-08-00037 is the only grievance fully exhausted by P la in tif f . Because Plaintiff raised multiple issues in this grievance, the only issue a d d re s s e d by the Assistant Director was whether Defendant Price forwarded Plaintiff's in f o rm a l resolution to Nurse Mosley. Because it was clear that Defendant Price did f o rw a rd the grievance to Nurse Mosley, the Assistant Director found that Plaintiff's a lle g a tio n s regarding Defendant Prices' conduct were without merit. (#79-8 at p.1-3) 6

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Defendants Linzy, Robertson, Collins, Straughn, Burl, Lay, and Campbell. These D e f e n d a n ts are not mentioned in the two grievances Plaintiff submitted regarding the in c id e n t in question, and Plaintiff admitted that he did not file any grievances regarding th e s e Defendants. Based upon the evidence presented, the Court agrees with the ADC D e f e n d a n ts that Plaintiff failed to exhaust his administrative remedies with regard to D e f e n d a n ts Linzy, Robertson, Collins, Straughn, Burl, Lay, and Campbell. 2. D e f e n d a n ts Kelley, Norris, Hobbs, and May

T h e ADC Defendants also argue that Plaintiff failed to exhaust his administrative re m e d ie s with regard to Defendants Kelley, Norris, Hobbs, and May. The Court agrees. In his deposition, Plaintiff specifically states that he named Defendants Kelley, N o rris , Hobbs, and May as Defendants in this action based upon their positions in the A D C . (#79-2 at p.20, 23, and 24) As the ADC Defendants correctly state in their motion, re s p o n d e a t superior may not be used to impose liability in a § 1983 action. Vaughn v. G r e e n e County, Ark., 438 F.3d 845, 851 (8th Cir. 2006) (citations omitted) (affirming that th e doctrine of respondeat superior is inapplicable to § 1983 claims). Further, in his d e p o s itio n , Plaintiff testified that he did not file any grievances regarding Defendants N o rris , Hobbs, or May. (#79-2 at p.20, 23, and 24) Plaintiff did testify that Defendant Kelley responded to one of Plaintiff's g rie v a n c e s. However, he specifically stated that he was not complaining about Defendant K e lle y's conduct in the grievances that he submitted; rather, his complaint was that he

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received inadequate medical treatment. (#79-2 at p.20) Accordingly, Plaintiff also has f a ile d to exhaust his administrative remedies with regard to Defendants Kelley, Norris, H o b b s , and May. 3. D e f e n d a n t Stanley

In his deposition, Plaintiff specifically stated that he mentioned Defendant Stanley " in the body of [his] grievance." (#79-2 at p.13) Plaintiff explained that he believed that D e f e n d a n t Stanley failed to protect him from the attack by inmate Ewells. In their motion, the ADC Defendants argue that Plaintiff did not exhaust his a d m in is tra tiv e remedies with regard to Defendant Stanley. Although Plaintiff added D e f e n d a n t Stanley's name in his appeal of grievance CU-08-00036 to the Chief Deputy D ire c to r, Plaintiff failed to identify Defendant Stanley in his initial grievance. The Court a g r e e s .4 T h e grievance form at issue specifically instructs the inmate to "be specific as to th e complaint, date, place, name of personnel involved and how [the inmate] was

In the appeal of grievance CU-08-00036, Plaintiff also mentions Defendants N o rris , Hobbs, Lay, Burl, Straughn, Robertson, Collins, Stanley, Campbell, and Linzy. In h is response to the ADC's motion, Plaintiff states that because he identified these D e f e n d a n ts during the grievance process, Plaintiff exhausted his remedies against these D e f e n d a n ts . In his deposition, however, Plaintiff admitted that he did not file any g rie v a n c e s regarding these Defendants. In addition, Plaintiff did not fully exhaust his a d m in is tra tiv e remedies with regard to his complaint concerning the lack of security in th e garment factory. Although Plaintiff references this issue in grievance CU-08-00036, D e f e n d a n t Kelley responded to Plaintiff's appeal by stating that the "issue of security will n o t be addressed as only one issue will be addressed per grievance." (#79-5 at p.3) 8

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affected." (#79-8 at p.1) (emphasis added)5 An inmate is not permitted to add additional s ta f f members or issues at the appeal level. (#79-4 at p.2) In Jones v. Block, the S u p re m e Court stated that the level of detail necessary in a grievance procedure could v a ry based upon the particular prison regulations at issue. Here, because Plaintiff failed to mention Defendant Stanley in the initial grievances that he submitted, he failed to c o m p ly with the ADC grievance procedure. (#79-4 at p.2, #79-3 at p.4) As a result, P la in tif f failed to exhaust his administrative remedies with regard to Defendant Stanley. 4. D e f e n d a n t Price

W ith regard to Defendant Price, the ADC Defendants do not dispute that Plaintiff s p e c if ic a lly referenced Defendant Price in grievance CU-08-00037. The ADC D e f e n d a n ts contend, however, that Plaintiff has failed to state a constitutional claim a g a in s t Defendant Price. The Court agrees. In grievance CU-08-00037, Plaintiff states that Defendant Price accepted P la in tif f 's complaint and informed Plaintiff that he would respond. According to P la in tif f , Defendant Price failed to respond. The documents attached to the ADC D e f e n d a n ts ' motion, however, indicate that Defendant Price forwarded the grievance to N u rs e Mosley and that Plaintiff received a response in accordance with ADC policy.

In his response to the ADC's motion, Plaintiff acknowledges that the grievance f o rm instructs inmates to name the personnel involved. Plaintiff claims, however, that his g rie v a n c e should have been dismissed if it was inadequate. The Court does not find P la in tif f 's argument persuasive. Plaintiff was aware of the ADC grievance policy and w a s required to act in accordance with that policy. 9

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(#79-9 at p.3) Moreover, even if Defendant Price had failed to follow prison procedure, P la in tif f 's claim still would fail because there is no constitutional requirement that prison o f f ic ia ls follow prison policy. Phillips v. Norris, 320 F.3d 844, 847 (8th Cir. 2003) (f a ilu re to follow prison procedure fails to state a constitutional claim). In his Second Amended Complaint, Plaintiff alleges that Defendant Price: (1) delayed forwarding Plaintiff's grievance; (2) failed to treat Plaintiff's grievance as an e m e rg e n c y; and (3) should have known that certain treatment was necessary and failed to p ro v id e or delayed Plaintiff's medical treatment. Plaintiff, however, did not include these a lle g a tio n s in the grievances that he submitted. Again, even if Plaintiff had included th e s e allegations in his grievance, his claim still would fail because, as noted, the failure to follow prison procedure does not rise to the level of a constitutional claim, as a matter o f law. Phillips v. Norris, supra. Accordingly, Plaintiff's claims against Defendant Price f a il. IV. C o n c lu s io n : T h e Court recommends that the ADC Defendants' motion for summary judgment (# 7 7 ) be GRANTED. D A T E D this 30th day of September, 2009.

____________________________________ U N IT E D STATES MAGISTRATE JUDGE

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