Killman v. Helder et al

Filing 35

ORDER adopting 32 Report and Recommendations; finding as moot 20 Motion to Dismiss; granting 25 Motion for Judgment on the Pleadings. Plaintiff's claims are dismissed. Signed by Honorable Jimm Larry Hendren on March 7, 2013. (adw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
ALEXANDER M. KILLMAN
v.

PLAINTIFF
Civil No. 11-5145

SHERIFF TIM HELDER; GUARD
ROY (identified as the older
one); and LIEUTENANT CAMBROSE

DEFENDANTS

O R D E R
Now on this 7th day of March, 2013, come on for consideration
the following:
*

defendants' Motion To Dismiss (document #20);

*

defendants'

Motion

For

Judgment

On

The

Pleadings

(document #25);
*

Report

And

Recommendation

Of

The

Magistrate

Judge

(document #32); and
*

plaintiff's Objections (document 34),

and the Court, being well and sufficiently advised, finds and
orders as follows:
1.

In this case brought pursuant to 42 U.S.C. § 1983,

plaintiff complains that he was inappropriately housed, in light
of his medical condition, type 1 diabetes.

He contends that for

a time he was housed in a cell in the nurse's station, which was
not manned after the nurse went home for the day.

During another

period of time he alleges that he was housed in a "closed cell
pod," where there was no medical call button.

He prays for

$150,000 for "pain & suffering."
In response to a question on the Complaint form about whether
he had filed a grievance about these matters, plaintiff states
that he filed a grievance on a "related complaint" but not on the
"main complaint" because he was "afraid of retaliation through
harsh treatment."
2.

Defendants attempted to depose plaintiff after he had

been released from jail, but plaintiff did not appear.

He called

later

ask

and

said

he

had

been

at

work.

Defendants

that

plaintiff's claim be dismissed as a sanction for this discovery
violation.
3.

Defendants also move for judgment on the pleadings,

contending:
*

that plaintiff failed to exhaust his administrative

remedies;
*

that plaintiff alleges no physical injury; and

*

that plaintiff failed to allege any official policy or

custom with regard to his housing complaint.
4.

Magistrate Judge Erin L. Setser recommended that the

Motion To Dismiss be denied, and plaintiff given a second chance
to appear for deposition if his claim was not dismissed on the
pleadings.
Notwithstanding

this

recommendation,

Judge

Setser

also

recommended that plaintiff's claim be dismissed for failure to

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allege an official policy or custom.
5.

Plaintiff objects that he is alleging "whatever policy

allows them to house inmates with diabetes in cells with no
emergency button.

An [sic] to have people in the nurse's station

with no way for anyone to hear the emergency button."
Plaintiff also contends that he is alleging physical injury,
i.e., "having low blood sugars for extended amounts of time when
no one could answer me in my need for my medical attention for my
type 1 diabetes."
6.

The Court need not resolve the Motion To Dismiss or

determine the sufficiency of plaintiff's objections as to the
physical injury and policy issues. These issues are moot, because
plaintiff's claim is subject to dismissal for failure to exhaust
administrative remedies.

As provided in 42 U.S.C. § 1997e(a),

[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.
The Complaint indicates that an administrative remedy was
available, but that plaintiff chose not to use it because he
feared

retaliation.

Plaintiff's

unsubstantiated fears

do not

excuse the failure to exhaust. The Eighth Circuit has said "[t]he
statute's requirements are clear: If administrative remedies are
available, the prisoner must exhaust them."
229 F.3d 684, 688 (8th Cir. 2000).

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Chelette v. Harris,

The Supreme Court has said

"[e]xhaustion . . . is mandatory."

Woodford v. Ngo, 548 U.S. 81,

85 (2006).
IT IS THEREFORE ORDERED that the Report And Recommendation Of
The Magistrate Judge (document #32) is adopted.
IT IS FURTHER ORDERED that plaintiff's Objections (document
34) are moot.
IT IS FURTHER ORDERED that defendants' Motion To Dismiss
(document #20) is moot.
IT IS FURTHER ORDERED that defendants' Motion For Judgment On
The Pleadings (document #25) is granted, and plaintiff's claims
are dismissed.
IT IS SO ORDERED.
/s/ Jimm Larry Hendren
JIMM LARRY HENDREN
UNITED STATES DISTRICT JUDGE

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