Iverson (ID 6007695) v. Bell et al

Filing 73

MEMORANDUM AND ORDER granting 56 and 62 Motions for Summary Judgment. Signed by District Judge J. Thomas Marten on 10/5/2017. Plaintiff's Second Amended Complaint 33 is dismissed without prejudice for failure to exhaust administrative remedies. Mailed to pro se party Montee Ray Iverson by regular mail. (ms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MONTEE RAY IVERSON,
Plaintiff,
v.

Case No. 16-3102-JTM

JORDAN BELL, et al.,
Defendants.
MEMORANDUM AND ORDER
Plaintiff Montee Ray Iverson, an inmate in the custody of the Kansas Department
of Corrections, filed this lawsuit pro se claiming violations of his First and Eighth
Amendment rights pursuant to 42 U.S.C. § 1983.

Plaintiff alleges that defendants

retaliated against him by housing him in a More Restricted Area (“MRA”) for
discussing two guards’ misconduct with healthcare providers. Plaintiff further alleges
that he was kept in unsanitary conditions and certain defendants battered and/or
sexually assaulted him. Defendants move for summary judgment claiming plaintiff
failed to exhaust mandatory administrative remedies (Dkts. 56 and 62). For the reasons
provided below, the court grants defendants’ motions.
I.

Factual Background
At all relevant times, plaintiff was housed at the Hutchinson Correctional Facility

(“HCF”). Defendant Jordan Bell was a unit team supervisor at HCF at that same time.
Defendant Dustin Davis is an HCF corrections officer. Defendant Misty Keolavone is a
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licensed specialized clinical social worker employed by Corizon, LLC as the Mental
Health Coordinator at HCF.
Plaintiff claims defendants retaliated against him for making threatening
statements about HCF officers to his therapist, FNU Schroder. Plaintiff also alleges
Keolavone was responsible for placing plaintiff in an MRA cell due to his mental
condition.
Plaintiff contends that he was kept in kept in unsanitary conditions because the
MRA cells are not regularly cleaned, the toilets do not flush manually, and the “walls
are stained with human excrement from inmates that are mentally ill.” (Dkt. 66, at 37).
Plaintiff alleges that defendants Karen Barnt, Keolavone, and Bell were aware of the
unsanitary conditions.
Plaintiff further complains that Bell made plaintiff’s conditions harsher by
terminating his ability to purchase stamps and envelopes through Restricted Housing
Rules. Plaintiff contends that Bell told plaintiff he needed to appear in person at the
Segregation Review Board meeting even though Bell was aware of plaintiff’s fears of
mistreatment from correctional officials.
Plaintiff indicates that on July 18, 2016, he was mentally ill and displayed
suicidal tendencies. A cell extraction team was assembled to move plaintiff. During the
forced removal, plaintiff alleges that Davis sexually assaulted him and other HCF
correctional officers battered him.
Following the screening of the Second Amended Complaint, plaintiff’s retaliation
claim (Count I) was dismissed. (Dkt. 32). Plaintiff’s allegations of battery and sexual
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assault (Count II) and being housed in unsanitary conditions (Count III) were permitted
to proceed.
II.

Summary Judgment Standards
Summary judgment is appropriate if the moving party demonstrates that there is

no genuine dispute as to any material fact, and the movant is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(a). A fact is “material” when it is essential to the claim,
and the issues of fact are “genuine” if the proffered evidence permits a reasonable jury
to decide the issue in either party’s favor. Haynes v. Level 3 Communs., 456 F.3d 1215,
1219 (10th Cir. 2006). The movant bears the initial burden of proof and must show the
lack of evidence on an essential element of the claim. Thom v. Bristol–Myers Squibb Co.,
353 F.3d 848, 851 (10th Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322–23
(1986)). The nonmovant must then bring forth specific facts showing a genuine issue
for trial. Garrison v. Gambro, Inc., 428 F.3d 933, 935 (10th Cir. 2005). The court views all
evidence and reasonable inferences in the light most favorable to the nonmoving party.
LifeWise Master Funding v. Telebank, 374 F.3d 917, 927 (10th Cir. 2004).
III.

Exhaustion Requirements
The Prison Litigation Reform Act of 1995 (“PLRA”), 42 U.S.C. § 1997e(a),

provides that a prisoner may not bring an action under any federal law regarding
prison conditions “until such administrative remedies as are available are exhausted.”
See also Simmons v. Stus, 401 F. App’x 380, 381 (10th Cir. 2010). “[T]he PLRA exhaustion
requirement applies to all inmate suits about prison life, whether they involve general

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circumstances or particular episodes, and whether they allege excessive force or some
other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). An inmate must not only start
the grievance process but also complete the grievance process before filing his
complaint. See 42 U.S.C. § 1997e(a) (stating “[n]o action shall be brought . . . until such
administrative remedies as are available are exhausted”); see also Jernigan v. Stuchell, 304
F.3d 1030, 1032 (10th Cir. 2002) (“An inmate who begins the grievance process but does
not complete it is barred from pursuing a § 1983 claim under PLRA for failure to
exhaust his administrative remedies.”).
The grievance procedure for Kansas state prisoners is detailed in Kansas
Administrative Regulation (“K.A.R.”) §§ 44-15-101 and 102, which includes three levels:
submission of the grievance first to a unit team member, then to the warden, and finally
to the Kansas Secretary of Corrections.
A. Burden-Shifting Scheme
The defendant initially carries the “burden . . . to prove administrative remedies
were available and plaintiff failed to exhaust these remedies.” Lewis v. Carrell, No. 12CV-3112-DDC-JPO, 2014 WL 4450147, at *10 (D. Kan. Sept. 10, 2014).

Defendants

attached an affidavit of the Custodian of Records from HCF. (Dkt. 57–1). The custodian
stated that she had searched plaintiff’s grievances and found no grievances arising out
of the events from the July 18, 2016 cell extraction, alleging unsanitary conditions
during MRA confinement, or placement in MRA confinement in retaliation for
exercising First Amendment rights. Nor did the custodian find any personal injury
claims. Therefore, defendants have met their initial burden, and “the burden shifts to
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plaintiff to show a genuine issue for trial.” Lewis, 2014 WL 4450147 at *10 (citing Fed. R.
Civ. P. 56(e)).
B. Plaintiff’s Grievances
In his Second Amended Complaint, plaintiff claims he has “written
formal/informal resolutions, grievances, and official letters” to Administrators in
Topeka, Kansas, over E.A.I., Mental Health, and the Secretary of Corrections.1 (Dkt. 33,
at 5). Plaintiff also asserts he filed a claim under the Prison Rape Elimination Act
(“PREA”) for his battery and sexual assault claims. In plaintiff’s response, he attached
several exhibits regarding his grievances.
On March 20, 2016, plaintiff prepared Grievance BA00017628 in which he
complained about his confinement in an MRA cell and lack of transfer. Plaintiff stated
that he feared for his life at HCF. Plaintiff submitted the grievance to his unit team.
(Dkt. 66, at 28–9).
On March 25, 2016, plaintiff received Unit Manager J. Jackson’s response. (Dkt.
66, at 10).

Jackson notes that plaintiff was moved to MRA status after making

statements to a mental health worker that plaintiff would batter HCF officers in
segregation.

Plaintiff appealed Grievance BA00017628 to the Warden, which was

denied on April 11, 2016. (Dkt. 66, at 14). But this appeal was not filed within the
mandatory three-day limit; instead plaintiff submitted his appeal to the Warden on day
four. (Dkt. 66, at 28). Thus, plaintiff did not comply with K.A.R. § 44–15–102(b) and

Because plaintiff is proceeding pro se thus, the court liberally construes his filings. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007).
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failed to exhaust his administrative remedies. See generally Jones v. Bock, 549 U.S. 199,
216–18 (2007) (for purposes of the PLRA, proper exhaustion requires completion of the
administrative review process in accordance with the applicable procedural rules that
the prison grievance process prescribes).
Even if plaintiff’s appeal to the Warden was timely, plaintiff has not provided
documentation that he timely appealed the Warden’s response to the Secretary of
Corrections in compliance with K.A.R. § 44–15–102(c). It appears that plaintiff filled out
Grievance BA00017628 and Grievance BA00017681; however, these grievances were not
signed and dated by plaintiff or an HCF staff member after the Warden answered
plaintiff. Nor is there evidence that plaintiff mailed his grievances to the Secretary of
Corrections.
With respect to plaintiff’s claims of unsanitary conditions and sexual assault,
there is no evidence in the record that plaintiff completed the requisite three levels to
exhaust his administrative remedies. Neither Grievance BA00017628 nor Grievance
BA00017681 alleges plaintiff was held in unsanitary conditions or sexually assaulted.
While Grievance BA00017681 alleges generally that plaintiff endured acts of violence
and threats of bodily harm from HCF guards, plaintiff prepared this grievance on May
26, 2016—before the July 18, 2016 cell extraction. Thus, Grievance BA00017681 does not
cover any alleged battery or sexual assault by defendants raised in Count II.
In plaintiff’s response, he indicates that he was unable to grieve the unsanitary
conditions and refers to Exhibit A; but Exhibit A references placement in MRA status as
opposed to unsanitary conditions. (Dkt. 66, at 15). Plaintiff claims that he reported the
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sexual battery on July 20, 2016, to Keolavone and other mental health staff, but plaintiff
provides no evidence in support of this claim. Instead, plaintiff attached a February 27,
2017 report alleging Keolavone committed a violation. (Dkt. 66, at 9).
Plaintiff also asserts that he was denied the right to properly report the sexual
assault for several weeks and that the delay was justified by Enforcement,
Apprehension, and Investigation (“EAI”) Representative Robinson due to his
paperwork being lost. Plaintiff alleges he filed a PREA claim. But plaintiff provides no
documentation or affidavit in support of these claims, and the court finds that he has
not met his burden.2 See, e.g., Baughman v. Harless, 142 F. App’x 354, 358–59 (10th Cir.
2005) (holding that summary judgment is inappropriate when prisoner provided
affidavit evidence that he mailed his grievance form); Johnson v. Wackenhut Corr. Corp.,
130 F. App’x 947, 951 (10th Cir. 2005) (affirming district court’s dismissal for failure to
exhaust administrative remedies where prisoner alleged prison officials prevented him
from doing so, “yet there is no evidence that he ever requested a grievance form or
otherwise requested assistance with the grievance process”).
C. Plaintiff’s Letter
On May 7, 2016, plaintiff addressed a letter to Governor Brownback and
complained about Bell and Schroder.

Specifically, plaintiff claimed that Schroder

placed him in an MRA cell because he “used words describing acts of violence” he
would like to commit against HCF officials. (Dkt. 66, at 37). Plaintiff also alleged that

Plaintiff states that Exhibit K is a response from EAI Robinson, however, there is no Exhibit K within
plaintiff’s filings.
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he was kept in kept in unsanitary conditions. Plaintiff complained that Bell made
plaintiff’s conditions harsher by terminating his ability to purchase stamps and
envelopes.
Although plaintiff’s letter was forwarded to the Office of the Secretary of
Corrections, medical staff, and the Warden, the court finds that plaintiff did not comply
with K.A.R. §§ 44-15-101 and 102, let alone exhaust the grievance process. Plaintiff has
not attached any denials from either the Warden or the Secretary of Corrections
regarding this letter—presumably, because plaintiff did not comply with levels one and
two of the grievance process. See id.; Pusha v. Myers, 608 F. App’x 612, 614 (10th Cir.
2015) (“[P]roper exhaustion of administrative remedies . . . means using all steps that
the agency holds out, and doing so properly (so that the agency addresses the issues on
the merits).”).
IV.

Conclusion
The court has reviewed the present record and finds no genuine issue of material

fact whether plaintiff exhausted his administrative remedies before bringing this action.
Because plaintiff did not properly exhaust his administrative remedies, his federal
claims may not proceed. See Jones v. Bock, 549 U.S. 199, 218 (2007) (a plaintiff must
comply with applicable prison grievance procedures to properly exhaust his or her
claims under the PLRA). Thus, defendants are entitled to judgment as a matter of law
in this case.
IT IS THEREFORE ORDERED this 5th day of October, 2017, that defendants’
motions for summary judgment (Dkts. 56 and 62) are GRANTED.
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IT IS FURTHER ORDERED that plaintiff’s Second Amended Complaint (Dkt. 33)
is dismissed without prejudice for failure to exhaust administrative remedies.

____s/ J. Thomas Marten___
J. Thomas Marten, Judge

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