Howard v. Rodgers et al

Filing 100

MEMORANDUM AND ORDER granting 84 Motion for Summary Judgment. Signed by District Judge Daniel D. Crabtree on 6/26/18. (msb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

BRYAN RICHARD HOWARD,
Plaintiff,
Case No. 17-3019-DDC-TJJ
v.
RAY RODGERS, et al.,
Defendants.

MEMORANDUM AND ORDER
Plaintiff Bryan Richard Howard brings this Bivens1 action against defendants Ray
Rodgers, Doug Wettlauffer, Paul Leonhard, Roger Crooks, and Kimberly Maurelli. Plaintiff’s
Amended Complaint alleges that defendants violated 42 U.S.C. § 1983 when Ray Rodgers
sexually assaulted plaintiff and the other defendants failed to protect him from this assault. See
Doc. 94 at 6–12.
Now, all five defendants, together, have filed a Motion for Summary Judgment (Doc. 84).
Their sole argument contends that plaintiff has failed to exhaust his administrative remedies and
so, the Prison Litigation Reform Act of 1995 (“PLRA”) bars him from prosecuting this cause of
action. The court agrees and grants summary judgment for defendants against all of plaintiff’s
claims.

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Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

I.

Background
Before the court recites the facts, it must address another matter of some concern.

Plaintiff’s Amended Opposition (Doc. 92) does not comply with D. Kan. Rule. 56.1(b). This
rule provides:
(1) A memorandum in opposition to a motion for summary judgment must begin
with a section containing a concise statement of material facts as to which the
party contends a genuine issue exists. Each fact in dispute must be numbered by
paragraph, refer with particularity to those portions of the record upon which the
opposing party relies, and, if applicable, state the number of movant’s fact that is
disputed.
(2) If the party opposing summary judgment relies on any facts not contained in
movant’s memorandum, that party must set forth each additional fact in a
separately numbered paragraph, supported by references to the record, in the
manner required by subsection (a), above. All material facts set forth in this
statement of the non-moving party will be deemed admitted for the purpose of
summary judgment unless specifically controverted by the reply of the moving
party.
D. Kan. Rule 56.1(b). Plaintiff has not complied with this rule. Specifically, he has not followed
subsection (1) of the rule because he fails to “refer with particularity to those portions of the
record upon which [he] relies . . . .” Instead, he merely refers to an exhibit in general terms, see
Doc. 92 at 2 ¶ 4 (“See attached Exhibit D.”), and sometimes, he fails to refer to the record at all,
see id. at 2–3 ¶¶ 5–7, 9 (asserting only that “[p]laintiff denies the averments”).
More concerning yet is paragraph 9’s deviation from Rule 56.1(b). See id. There,
plaintiff asserts:
[W]hile Plaintiff was in the [Special Housing Unit], he sent a BP9 and a BP10 to
Administrative Remedies Central Office, 320 First Street, NW, Washington, D.C.
20534 setting forth the sensitive nature of his grievances with Defendant Rodgers.
From those mailings he never received a response. Plaintiff did, however, get a
response from his e-mail to the OIG as noted on page 3 of this memorandum.2 It

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Page three of plaintiff’s memorandum includes improper assertions of fact under Rule 56.1(b)(2).
The court addresses this issue, below.

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would be Plaintiff’s position that he did exhaust available administrative remedies
with regard to the issues identified in this lawsuit.
Id. at 3 ¶ 9 (footnote added). Plaintiff fails to support this assertion with any citation to the
record. So plaintiff has failed to controvert this fact in the manner required by the rules.
Likewise, in the other paragraphs where plaintiff simply “denies the averments,” he fails to
controvert those facts properly. See Mitchell v. Kan. City Kan. Sch. Dist., No. 16-2145, 2017
WL 1303276, at *2 (D. Kan. Apr. 7, 2017), aff’d, 714 F. App’x 884 (10th Cir. 2017) (finding
conclusory denials insufficient on a motion for summary judgment).
Plaintiff also fails to comply with Rule 56.1(b)(2). This rule required plaintiff to “set
forth each additional fact in a separately numbered paragraph, supported by references to the
record, in the manner required by subsection (a), above.” D. Kan. Rule 56.1(b)(2). Plaintiff
does not explicitly state any additional facts. Instead, under the heading “Statement of the
Question Presented,” plaintiff asserts, what the court construes as, additional facts. The title of
the heading is not detrimental to plaintiff. But his failure to restrict his assertions to “concise
statements of material facts” and “refer with particularity to those portions of the record upon
which [he] relies . . . .” is detrimental. See D. Kan. Rule 56.1(b)(2) (referring to subsection (a)).
Instead of complying with this rule, plaintiff asserts his additional material facts in extended
paragraphs with a general citation at the end of each paragraph. This general citation never
includes a pincite to a specific location within the exhibit.3 This will not suffice.

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Due to plaintiff’s gross failure to comply with Rule 56.1(b), the court confines its discussion of
plaintiff’s failure to authenticate his exhibits to a brief one. Suffice it to say that summary judgment facts
“must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated
therein.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998) (citing Thomas v. Wichita
Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir. 1992)). But plaintiff never cites any deposition
transcript or affidavit purporting to make his exhibits admissible as evidence. In brief, plaintiff fails to
authenticate these exhibits in any fashion recognized by the Federal Rules of Evidence.

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Our rules require defendants to controvert each fact specifically in their Reply or they are
deemed admitted. D. Kan. Rule 56.1(b)(2). But the court does not expect defendants to comb
through each exhibit to find the facts plaintiff asserts in an improper manner. Likewise, when
plaintiff “refers to the exhibit as a whole,” it is “inappropriate for the court to search through
plaintiff’s exhibits for evidence to support his case.” Mitchell, 2017 WL 1303276, at *2. For
these reasons, plaintiff has failed to assert additional facts properly. See Cross v. Home Depot,
390 F.3d 1283, 1290 (10th Cir. 2004) (“[I]t is the responding party’s burden to ensure that the
factual dispute is portrayed with particularity, without . . . depending on the trial court to conduct
its own search of the record.”
With these Rule 56.1(b) principles in mind, the court now identifies the facts that govern
this motion. These facts are uncontroverted, or where controverted properly, are recited in the
light most favorable to the plaintiff as the party opposing summary judgment. Scott v. Harris,
550 U.S. 372, 378 (2007).
When plaintiff filed this lawsuit on March 10, 2016, he was confined at the Federal
Correctional Institution in Oxford, Wisconsin. The allegations in his lawsuit rest on plaintiff’s
assertions about his confinement at the U.S. Penitentiary in Leavenworth, Kansas (“USPLeavenworth”). Specifically, plaintiff alleges that defendant Ray Rodgers, a staff member at
USP-Leavenworth, sexually assaulted him. Plaintiff also alleges that the other defendants failed
to protect plaintiff from this harm.
The Bureau of Prisons (“BOP”) has a four-part administrative remedy program designed
to address a federal inmate’s concerns about any aspect of his confinement. The details of this
program are codified in 28 C.F.R., Part 542. The administrative remedy program affords

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inmates the opportunity to pursue their grievances and provides staff an opportunity to resolve
issues in-house before an inmate seeks judicial relief.
Under this program, an inmate must attempt, first, informal resolution of the complaint.
28 C.F.R. § 542.13. If the parties do not resolve the grievance by an informal resolution, the
inmate next must present his complaint to the warden of the institution where he is confined. If
dissatisfied with the warden’s response, the inmate may appeal his complaint to the regional
director within 20 calendar days of the response. Id. § 542.13(a). If dissatisfied with the
regional director’s response, the inmate may appeal to the Director of National Inmate Appeals
at the Office of the General Counsel in Washington, D.C. within 30 calendar days. Id.
Generally, an inmate has not exhausted his remedies until he has sought review and
received a final substantive response at all three levels. Since July 1990, the BOP has
maintained information about administrative complaints filed by inmates under the
Administrative Remedy Program in a national database called “SENTRY.” One of SENTRY’s
functions is to track administrative remedy complaints and appeals. This system permits a
computerized search of complaints and appeals. A review of plaintiff’s administrative remedy
history reveals he filed four requests for administrative remedies while in BOP custody. None of
them or their appeals include the issues raised in this lawsuit. Instead, each of plaintiff’s
administrative complaints involved plaintiff’s request to change medications he was receiving
for chronic back and knee pain.
II.

Legal Standard
Summary judgment is appropriate if the moving party demonstrates that “no genuine

dispute” exists about “any material fact” and that it is “entitled to a judgment as a matter of law.”
Fed. R. Civ. P. 56(c). When it applies this standard, the court views the evidence and draws

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inferences in the light most favorable to the non-moving party. Nahno-Lopez v. Houser, 625
F.3d 1279, 1283 (10th Cir. 2010). “An issue of fact is ‘genuine’ ‘if the evidence is such that a
reasonable jury could return a verdict for the non-moving party’ on the issue.” Id. (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “An issue of fact is ‘material’ ‘if
under the substantive law it is essential to the proper disposition of the claim’ or defense.” Id.
(quoting Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998)).
The moving party bears “both the initial burden of production on a motion for summary
judgment and the burden of establishing that summary judgment is appropriate as a matter of
law.” Kannady v. City of Kiowa, 590 F.3d 1161, 1169 (10th Cir. 2010) (citing Trainor v. Apollo
Metal Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2002)). To meet this burden, the moving
party “need not negate the non-movant’s claim, but need only point to an absence of evidence to
support the non-movant’s claim.” Id. (citing Sigmon v. CommunityCare HMO, Inc., 234 F.3d
1121, 1125 (10th Cir. 2000)).
If the moving party satisfies its initial burden, the non-moving party “may not rest on its
pleadings, but must bring forward specific facts showing a genuine issue for trial [on] those
dispositive matters for which it carries the burden of proof.” Id. (quoting Jenkins v. Wood, 81
F.3d 988, 990 (10th Cir. 1996)); accord Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986);
Anderson, 477 U.S. at 248–49. “To accomplish this, the facts must be identified by reference to
affidavits, deposition transcripts, or specific exhibits incorporated therein.” Adler, 144 F.3d at
670 (citing Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir. 1992)).
Summary judgment is not a “disfavored procedural shortcut.” Celotex, 477 U.S. at 327.
Instead, it is an important procedure “designed ‘to secure the just, speedy and inexpensive
determination of every action.’” Id. (quoting Fed. R. Civ. P. 1).

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III.

Analysis
Defendants’ sole argument for summary judgment against plaintiff’s claims is that he

failed to exhaust his administrative remedies.
The Prison Litigation Reform Act of 1995 (“PLRA”) requires prison inmates to exhaust
all available administrative remedies before commencing a Bivens action. See 18 U.S.C. §
1997e(a); Porter v. Nussle, 534 U.S. 516, 525 (2002). “There is no question that exhaustion is
mandatory under the PLRA and that unexhausted claims cannot be brought in court.” Jones v.
Bock, 549 U.S. 199, 211 (2007). If an inmate fails to pursue a claim through the entire
administrative remedy process, the court must dismiss that claim. Watson v. Evans, No. 13-CV3035-EFM, 2014 WL 7246800, at *4 (D. Kan. Dec. 17, 2014) (citing Jones, 549 U.S. at 211).
There are two aspects of the exhaustion requirement. They are: (1) “the administrative
grievance must have alleged the same facts as the court complaint;” and (2) “the plaintiff must
follow the prison’s grievance procedures.” Williams v. Wilkinson, 659 F. App’x 512, 514 (10th
Cir. 2016) (citing Woodford v. Ngo, 548 U.S. 81, 90–91 (2006)).
Exhaustion is an affirmative defense that defendants must raise. Jones, 549 U.S. at 216.
Defendants raise it here. And the uncontroverted facts establish that plaintiff has not asserted an
administrative complaint that alleges the same facts as plaintiff’s Complaint. In short, plaintiff
has not exhausted the administrative remedies that were available to him and this omission
makes his claim here subject to dismissal.
Plaintiff argues that he did follow the proper procedures under the Prison Rape
Elimination Act (“PREA”). For this argument, he relies on facts never established in the fashion
required by D. Kan. Rule 56.1(b). Regardless, his reliance on PREA procedures is misplaced.
See Barringer v. Stanley, No. 5:16-CV-17-FDW, 2017 WL 1028595, at *2 (W.D.N.C. Mar. 16,

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2017) (“Plaintiff’s initiation of an action under the PREA simply does not satisfy the
requirements for exhaustion of administrative remedies under PLRA.”); Omaro v. Annucci, 68 F.
Supp. 3d 359, 364 (W.D.N.Y. 2014) (“[T]he federal courts that have considered the issue have
concluded that the PREA does not excuse an inmate’s failure to exhaust his administrative
remedies with respect to a claim of sexual misconduct.”); Lamb v. Franke, No. 2:12-CV-00367MO, 2013 WL 638836, at *2 (D. Or. Feb. 14, 2013) (“The PREA does not impose an alternative
remedial scheme, nor does it supersede PLRA’s exhaustion requirement.”).
Because plaintiff failed to exhaust his administrative remedies, the court grants summary
judgment to defendants against plaintiff’s claims.
IT IS THEREFORE ORDERED BY THE COURT THAT defendants Ray Rodgers,
Doug Wettlauffer, Paul Leonhard, Roger Crooks, and Kimberly Maurelli’s Motion for Summary
Judgment (Doc. 84) is granted.
IT IS SO ORDERED.
Dated this 26th day of June, 2018, at Topeka, Kansas.
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge

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