McIntosh v. Thompson et al
Filing
16
MEMORANDUM OPINION & ORDER, 1) granting 12 MOTION for Summary Judgment by Officer Dingus 2) Complaint filed by plaintiff is DISMISSED 3) Court will enter an appropriate judgment 4) Matter shall be STRICKEN from active docket. Signed by Judge Henry R. Wilhoit, Jr on 11/21/16.(SMT)cc: COR, McIntosh via USMail
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
ASHLAND
CARLTONE. MCINTOSH, SR.,
)
)
)
Plaintiff,
Civil No. 15-56-HRW
)
v.
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)
LADONNA THOMPSON, et al.,
)
)
)
Defendants.
MEMORANDUM OPINION
AND ORDER
*** *** *** ***
Officer Jonathan Dingus has filed a motion seeking summary judgment upon
the complaint filed by plaintiff Carlton E. Mcintosh, Sr. [D. E. No. 12) Mcintosh
has filed a response to the motion, to which Dingus has replied. [D. E. Nos. 14, 15)
This matter is therefore ripe for decision.
I
Mcintosh is an inmate presently confined at the Luther Luckett Correctional
Complex in LaGrange, Kentucky. Proceeding without counsel, Mcintosh filed a
civil rights complaint pursuant to 42 U.S.C. § 1983 alleging that Officer Dingus
caused him injuries as a result of reckless driving. [D. E. No. 1] Specifically,
Mcintosh alleged that on August 4, 2014, Dingus was driving the van that
transported him from the Northpoint Training Center to the Eastern Kentucky
Correctional Complex ("EKCC").
Mcintosh was restrained by leg shackles,
handcuffs, and a belly chain connected to a "black box" restraint at his waist.
Mcintosh alleges that Dingus refused to fasten Mcintosh's seatbelt for him and that
during the trip Dingus was speeding and driving recklessly, at one point coming to
an abrupt halt. Because Mcintosh's arms and hands were restrained and he was not
belted into the seat, he was thrown forward into the security glass and iron roll bar
separating the passenger compartment from the driver, causing injury to his shin and
leg. [D. E. No. 1 at pp. 2-3] Mcintosh fmiher alleges that he suffered a heart attack
three weeks later on August 25, 2014, and was transferred to the University of
Kentucky Hospital for urgent medical care. At the hospital, he was diagnosed with
a pulmonary embolism caused by deep vein thrombosis. Mcintosh states that when
he told the doctor about his recent leg injury, the doctor allegedly told him that the
injury "was likely the cause and source of the embolism ... " Id. at p. 4. Mcintosh
claims that Officer Dingus exhibited deliberate indifference to his health and safety
by failing to secure his seatbelt and by driving erratically.
Mcintosh states that he filed grievances regarding these events between
September 12 and September 19, 2014. [D. E. No. 1 at 9] However, the grievance
forms he attached to his complaint relate to the medical care he received, not to his
claims regarding Officer Dingus's conduct. [D. E. No. 1-1 at pp. 1-10] Mcintosh
gives contradictory indications with respect to other grievances he filed or wished to
file, on the one hand stating that his grievances were denied as having been filed
2
outside the five-day window permitted by the grievance procedure, on the other hand
stating that he "was not given provisions" to file a grievance when he was in EKCC's
Hospital Unit. [D. E. No. 1 at 9]
Officer Dingus seeks summary judgment upon Mcintosh's claims against him
on the ground that Mcintosh failed to exhaust his administrative remedies as required
by federal law. [D. E. No. 12-1 at 2-4] Dingus has included the affidavit of John
Dunn, Central Office Ombudsman for the Kentucky Department of Corrections
("KDOC"), who testifies that Mcintosh never filed any grievance regarding his
allegations of misconduct by Dingus. [D. E. No. 12-4] Dingus further notes that
while Mcintosh claimed in his complaint that he was unable to obtain a grievance
form [D. E. No. 1 at 9], this did not occur until Mcintosh was placed in EKCC's
Hospital Unit, which was weeks after Officer Dingus's alleged misconduct on
August 4, 2014, and after Mcintosh had gone through routine medical processing
upon his arrival at EKCC. [D. E. No. 12-1 at 5-6]
In his three-sentence response, Mcintosh alleges for the first time that on
August 5, 2014, he attempted to obtain a grievance form at EKCC's law library, but
that the officer in charge would not give him a grievance form because the incident
did not occur at EKCC. [R. 14 at l] Officer Dingus replies that Mcintosh could
have readily obtained a grievance form from many other sources, including his
3
treatment officer ("CTO") and from the grievance aide assigned to his dorm. [D. E.
No. 15 at 1-2]
II
A motion for summary judgment under Rule 56 challenges the viability of the
another party's claim by asse1iing that at least one essential element of that claim is
not supported by legally-sufficient evidence. Fed. R. Civ. P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 324-25 (1986). A party moving for summary judgment must
establish that even viewing the record in the light most favorable to the nonmovant,
there is no genuine dispute as to any material fact and that she is entitled to a
judgment as a matter oflaw. Loyd v. St. Joseph Mercy Oakland, 766 F. 3d 580, 588
(6th Cir. 2014).
The moving party does not need her own evidence to support this asse1iion,
but need only point to the absence of evidence to suppo1i the claim. Turner v. City
of Taylor, 412 F. 3d 629, 63 8 (6th Cir. 2005). The responding party cannot rely
upon allegations in the pleadings, but must point to evidence of record in affidavits,
depositions, and written discovery which demonstrates that a factual question remain
for trial. Hunley v. DuPont Auto, 341 F. 3d 491, 496 (6th Cir. 2003); United States
v. WRW Corp., 986 F. 2d 138, 143 (6th Cir. 1993) ("A trial court is not required to
speculate on which portion of the record the non-moving patiy relies, nor is there an
obligation to 'wade through' the record for specific facts.").
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The court reviews all of the evidence presented by the parties in a light most
favorable to the responding paiiy, with the benefit of any reasonable factual
inferences which can be drawn in his favor. Harbin-Bey v. Rutter, 420 F. 3d 571,
575 (6th Cir. 2005). If the responding party's allegations are so clearly contradicted
by the record that no reasonable jury could adopt them, the comi need not accept
them when determining whether summary judgment is warranted. Scott v. Harris,
550 U.S. 372, 380 (2007). The comi must grant summary judgment if the evidence
would not support a jury verdict for the responding party with respect to at least one
essential element of his claim. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251
( 1986). If the applicable substantive law requires the responding party to meet a
higher burden of proof, his evidence must be sufficient to sustain a jury's verdict in
his favor in light of that heightened burden of proof at trial. Harvey v. Hollenback,
113 F. 3d 639, 642 (6th Cir. 1997); Moore, Owen, Thomas & Co. v. Coffey, 992 F.
2d 1439, 1444 (6th Cir. 1993).
In this case, Officer Dingus asserts the affirmative defense that Mcintosh
failed to properly and timely exhaust his administrative remedies. Federal law
requires a prisoner wishing to challenge the manner in which his criminal sentence
is being carried out to exhaust all available administrative remedies before filing
suit. 42 U.S.C. § 1997e(a); Jones v. Bock, 549 U.S. 199, 211 (2007) ("There is no
question that exhaustion is mandatory under the PLRA and that unexhausted claims
5
cannot be brought in comi."). Because "[p]roper exhaustion demands compliance
with an agency's deadlines and other critical procedural rules ... ", Woodford v. Ngo,
548 U.S. 81, 90 (2006), the prisoner must file the initial grievance and any appeals
within the required time frames.
A thorough review of Mcintosh's complaint and the materials filed by Officer
Dingus in supp01t of his motion establish that the defendant is entitled to judgment
as a matter oflaw. Mcintosh readily admits that he did not file a grievance regarding
Officer Dingus' alleged misconduct, but in his response alleges for the first time that
prison staff at EKCC's law library failed to provide him with a grievance form on
August 5, 2014. [D. E. No. 14 at l] Mcintosh's new allegation fails to provide
justification for his failure to exhaust his administrative remedies for two reasons.
First, a party cannot create a genuine issue of material fact to avoid summary
judgment merely by making new allegations that are inexplicably omitted from,
materially inconsistent with, or contradict allegations previously set forth in a
verified complaint or deposition testimony. Cf. Aerel, S.R.L. v. PCC Ailfoils, L.L. C.,
448 F. 3d 899, 907-08 (6th Cir. 2006); Foster v. Americare Healthcare Servs., Inc.,
150 F. Supp. 3d 868, 871-72 (S.D. Ohio 2015). There is no question that Mcintosh's
new allegation cannot be reconciled with his previous statements regarding his
efforts to exhaust his claims.
First, prison officials would not have denied
Mcintosh' s grievance on the ground that it was more than five days after the events
6
complained of (as he stated in his complaint) if (as he now alleges) he attempted to
obtain a grievance form on August 5, 2014 - one day after Officer Dingus' alleged
misconduct. Second, in his complaint Mcintosh clearly alleged that he was not
provided the means to file a grievance "while in [EKCC's] Medical Hospital Unit
[D. E. No. 1 at 9], whereas he now claims he sought to obtain a grievance form from
prison staff in EKCC's law library.
Because a party cannot be permitted to
manufacture a post hoc explanation for his failure to file an inmate grievance based
upon alleged facts materially at odds with those set forth in his own complaint,
Mcintosh has failed to provide legally-sufficient grounds to excuse his admitted
failure to exhaust administrative remedies.
Second, even accepting as true Mcintosh's assertion that he could not obtain
a KDOC grievance form from the EKCC library, that explanation is both factually
and legally insufficient to deem the exhaustion requirement satisfied. As a factual
matter, Officer Dingus correctly notes that Mcintosh had other readily-available
sources from which to obtain a KDOC grievance form at the prison. [D. E. No. 15
at 1-2] As a legal matter, even if a "proper" or official grievance form is unavailable,
the exhaustion requirement is not deemed satisfied unless the prisoner undertakes at
least
s~me
additional and reasonable effort to invoke and pursue the inmate
grievance process. Cf. Jones v. Smith, 266 F. 3d 399, 400 (6th Cir. 2001) (holding
that prison counselor's implicit refusal provide inmate with grievance form did not
7
excuse exhaustion where the inmate "does not allege that there was no other source
for obtaining a grievance form or that he made any other attempt to obtain a form or
to file a grievance without a form.").
The fact that Mcintosh was able to file
numerous grievances regarding his medical care at EKCC shortly after the events
about which he complains undercuts any assertion that such forms were
categorically unavailable or that affirmative efforts were made to impede his ability
to pursue administrative remedies. Mcintosh therefore failed to satisfy the federallymandated exhaustion requirement set forth in 42 U.S.C. § l 997e(a), and Officer
Dingus is entitled to judgment as a matter of law.
Accordingly, IT IS ORDERED that:
1.
Officer Jonathan Dingus' Motion for Summary Judgment [D. E. No.
12] is GRANTED.
2.
The Complaint filed by plaintiff Carlton E. Mcintosh, Sr. [D. E. No. I]
is DISMISSED.
3.
The Court will enter an appropriate judgment.
4.
This matter shall be STRICKEN from the active docket.
This 21'1 day of November, 2016.
t/, ·;i~ §lgnod By:
,. ~
~.....,.
8
•'fl".'""',
IWtlfJJt Wilhoit Jr.
United Stat1111 Dlalrlct Judge
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