Strange v. Commonwealth of Kentucky et al

Filing 85

MEMORANDUM OPINION by Senior Judge Thomas B. Russell on 03/05/2013 re 37 MOTION for Summary Judgment filed by Jackie Strode, Misse Edmonds, and 54 MOTION for Summary Judgment filed by Jaimie Pruitt. The Court will GRANT both Defendant Pruitt and Defendants Strode and Edmonds' Motions to Dismiss, (Docket Nos. 37 & 54 ), and will DENY as moot Plaintiff's Motion for Summary Judgment, (Docket No. 36 ), and Defendant Pruitt's Motion for Leave to File Supplement to Motion for Summary Judgment, (Docket No. 79 ). An appropriate Order of dismissal will issue separately with this Opinion. cc: Calvin D. Strange, pro se; Counsel (CDF)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
CIVIL ACTION NO. 1:12-CV-00085
CALVIN D. STRANGE

Plaintiff

v.
COMMONWEALTH OF KENTUCKY, et al.

Defendants

MEMORANDUM OPINION
This matter is before the Court upon Defendant Jaimie Pruitt and Defendants
Jackie Strode and Misse Edmonds’ respective Motions for Summary Judgment.
(Docket Nos. 54 & 37, respectively.) Plaintiff Calvin Strange, pro se, has filed a
Response in which he collectively addresses Defendants’ Motions. (Docket No. 68.)
Defendant Pruitt and Defendants Strode and Edmonds have each filed a separate Reply,
(Docket Nos. 72 & 73, respectively), and Defendants Strode and Edmonds have also
joined in Defendant Pruitt’s Reply, (see Docket No. 73, ¶ 2). These matters now are
fully briefed and ripe for adjudication. For the reasons that follow, the Court will
GRANT Defendants’ respective Motions for Summary Judgment, (Docket Nos. 37 &
54).
Relative to Defendants’ instant Motions are several other motions currently
pending before the Court: Plaintiff’s Motion for Summary Judgment, (Docket No. 36),
and Defendant Pruitt’s Motion for Leave to File Supplement to Motion for Summary
Judgment, (Docket No. 79).

Because the Court finds that summary judgment in

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Defendants’ favor is appropriate, these pending motions, (Docket Nos. 36 & 79), will be
DENIED as moot.
BACKGROUND
Plaintiff Calvin Strange is, and has been since August 2011, incarcerated at the
Warren County Regional Jail (the “Jail”). Strange initially filed a joint complaint with
two other inmates. The Court subsequently severed Strange’s claims and ordered him
to file an amended complaint stating only his individual claims. He did so, and the
Court thereafter conducted an initial screening pursuant to 28 U.S.C. § 1915A and
McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997). As a result of that screening,
the Court dismissed Strange’s claims against the Commonwealth of Kentucky, as well
as his claims relating to the taking of his personal property, searches of his cell and
person, the grievance procedure, and denial of access to the courts. (Docket No. 21.)
The Court allowed Strange to proceed with his First Amendment claims relating to
reading material and freedom of religion against Defendants Strode and Edmonds, and
also his Eighth Amendment medical treatment claims against Defendants Strode,
Edmonds, and Pruitt. (Docket No. 20, at 11-12.)
Strange alleges that his First and Eighth Amendment rights have been violated.
Specifically, he claims that he has limited access to reading material, has been denied
the freedom to practice his religion of Judaism, and that the Jail has a policy of not
treating his chronic medical conditions.

The Jail has, at all times during Strange’s

incarceration there, had an inmate grievance procedure in effect that was available to
Strange. (See Docket Nos. 37-2, at 1; 37-3, at 2.) The procedures for filing grievances

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are set forth on a form titled “Warren County Jail Inmate Rights & Rules and Services
Offered to Inmates.” (Docket No. 37-3.) Defendants have submitted a copy of this
form that was signed by Strange on August 12, 2011. (Docket No. 37-4.) Immediately
above Strange’s signature is the bolded, all capital-letter acknowledgement “I
RECEIVED A COPY AND UNDERSTAND THE RULES AND REGULATIONS OF
THE JAIL AND MY RIGHTS AS AN INMATE AT THE WARREN COUNTY JAIL.”
(Docket No. 37-4, at 2.) According to the grievance procedure outlined on that form, an
inmate is permitted to submit grievances whenever he believes he “has been subject to
abuse, harassment, or abridgement of civil rights.” (Docket No. 37-4, at 2.) The policy
requires that all grievances be filed within 48 hours of the complained of event or act.
(Docket No. 37-4, at 2.) The “Jailer or his/her designee” will then respond within 10
days of receipt. (Docket No. 37-4, at 2.) The policy further provides that if the inmate’s
grievance is denied or if an inmate is not satisfied with the response, he may appeal
within 48 hours of the initial response, and that his appeal will be responded to within
10 days. (Docket No. 37-4, at 2.)
Strange has submitted seven grievances during his time at the Jail:
(1)

September 2, 2011

complaint concerning medication

(2)

September 12, 2011

complaint concerning copies of documents
made by Jail staff

(3)

January 18, 2012

complaint concerning charges to inmate
account for medical visits

(4)

February 8, 2012

complaint concerning confiscation of
Strange’s towels and wash cloths

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(5)

May 1, 2012

complaint concerning confiscation of
Strange’s personal property, including “2
Robb Report magazines, my pillow, . . . my
dictionary, another magazine . . . my blue
towel and wash cloths and some religious
pamphlets, . . . [and] bottle of dandruff
shampoo”

(6)

May 2, 2012

complaint regarding request for inmate
account summary

(7)

May 22, 2012

complaint concerning confiscation of various
property during cell search, including “2
lawbooks and a phonebook belonging to MY
ATTORNEY . . . ‘envelopes’ of my personal
mail, 4 new white undershirts and 3 new pairs
of socks”

(See Docket No. 37-5.) Because Strange’s remaining claims concern only his medical
treatment, freedom to practice his religion, and the confiscation of his reading material,
most of these grievances have no relevance here.
His first grievance, which was filed September 2, 2011, (Grievance #1), is the
only grievance filed relative to his medical treatment claims against Defendant Pruitt.
In Grievance #1, Strange acknowledged he was receiving his medication, Elavil, but
disagreed with the manner in which that medication was given to him. (See Docket No.
37-5, at 1-2.) Specifically, Strange complained that his Elavil was crushed when he
received it. According to Strange, that medication was not designed to be crushed and
taking it in that form caused him “a near overdose.” (Docket No. 37-5, at 1.) He also
complained that other medication was crushed together with his Elavil. Defendant
Pruitt responded to Grievance #1 four days later on September 6, stating that the

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medication would be reviewed with Strange and that lab work had been ordered for
him. (Docket No. 37-5, at 2.) Pruitt also noted that his medication had been “crushed
in a clean pill crusher,” which was “only used for [inmate] Elavil.” (Docket No. 37-5,
at 2.) Strange did not appeal Grievance #1.
The only other relevant grievances are Strange’s May 1, 2012, grievance
(Grievance #5), and May 22, 2012, grievance (Grievance #7). Grievance #5, as it
relates to Strange’s remaining claims, concerns the confiscation of several magazines, a
dictionary, and “some religious pamphlets.” (Docket No. 37-5, at 11.) Defendant
Edmonds responded and denied that grievance three days later on May 4. (Docket No.
37-5, at 12.) Strange did not appeal Grievance #5. Grievance #7, as it relates to
Strange’s remaining claims, concerns the confiscation of “2 lawbooks” and a
phonebook Strange says belonged to his attorney. (Docket No. 37-5, at 21.) Defendant
Edmonds responded to that grievance two days later on May 24, stating that one law
book and one phonebook were returned to Strange, but the other law book “had another
inmate’s name” and would not be returned. (Docket No. 37-5, at 22.) Strange appealed
this decision in accordance with Jail policy by submitting his appeal that same day.
(Docket No. 37-5, at 25-26.) Strange’s appeal was answered and denied four days later
on May 28. (Docket No. 37-5, at 26.) Strange’s other grievances do not appear relevant
to his remaining claims, and Strange did not appeal any of those grievances.
Defendant Pruitt and Defendants Strode and Edmonds now separately move for
summary judgment on Strange’s claims against them on the basis that Strange failed to
exhaust his administrative remedies. Defendants Strode and Edmonds also argue that

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Grievance #7, the only grievance Strange appealed, is irrelevant because Strange’s
original Complaint, (Docket No. 1), and Amended Complaint, (Docket No. 15), focus
entirely on his being prevented from obtaining magazines and periodicals or his having
those materials confiscated; neither his Complaint nor Amended Complaint make any
mention of “lawbooks” or a phonebook belonging to his attorney. (See Docket No. 371,a t 4-5.)
STANDARD
Summary judgment is appropriate where “the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as to
any material fact and that the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(c). “[N]ot every issue of fact or conflicting inference presents a genuine
issue of material fact.” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir.
1989). The test is whether the party bearing the burden of proof has presented a jury
question as to each element in the case. Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir.
1996). The plaintiff must present more than a mere scintilla of evidence in support of
her position; she must present evidence on which the trier of fact could reasonably find
for her. Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). Mere
speculation will not suffice to defeat a motion for summary judgment: “[T]he mere
existence of a colorable factual dispute will not defeat a properly supported motion for
summary judgment. A genuine dispute between the parties on an issue of material fact
must exist to render summary judgment inappropriate.” Monette v. Elec. Data Sys.
Corp., 90 F.3d 1173, 1177 (6th Cir. 1996), abrogated on other grounds by Lewis v.
Humboldt Acquisition Corp., Inc., 681 F.3d 312 (6th Cir. 2012).
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In determining whether summary judgment is appropriate, a court must resolve
all ambiguities and draw all reasonable inferences against the moving party.

See

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Still, “[a]
party asserting that a fact cannot be or is genuinely disputed must support the assertion
by . . . citing to particular parts of materials in the record . . . or showing that the
materials cited do not establish the absence or presence of a genuine dispute.” Fed. R.
Civ. P. 56(c)(1). “The court need consider only the cited materials, but it may consider
other materials in the record.” Fed. R. Civ. P. 56(c)(3).
DISCUSSION
The Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e, provides, “No
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.” § 1997e(a).
The Supreme Court has firmly held that exhaustion is mandatory and not within the
discretion of the district court. Porter v. Nussle, 534 U.S. 516, 524 (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).
This exhaustion requirement applies “[e]ven when a prisoner seeks relief not
available in grievance proceedings, notably monetary damages,” as well as “to all
inmate suits about prison life, whether they involve general circumstances or particular
episodes, and whether they allege excessive force or some other wrong.” Porter, 534
U.S. at 524, 532.

“Proper exhaustion,” according to the Supreme Court, means

“compliance with an agency’s deadlines and other critical procedural rules.” Woodford
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v. Ngo, 548 U.S. 81, 91 (2006).

“Compliance with prison grievance procedures,

therefore, is all that is required by the PLRA to ‘properly exhaust.’” Jones, 549 U.S. at
218.
Strange expressly concedes in his Response to Defendants’ Motions for
Summary Judgment that he did not exhaust his administrative remedies: “In the instant
case the plaintiff filed before the exhaustion of administrative remedies.” (Docket No.
68, at 5.) Strange even acknowledged that the exhaustion is mandatory. (Docket No.
68, at 5.) However, Strange maintains that exhaustion is not required here because the
remedies available to him provided no genuine opportunity for relief and because
irreparable injury will occur unless the Court hears his unexhausted claims. (Docket
No. 68, at 2-4.) He also proposes that an exception to the exhaustion requirement
should apply “if a prisoner had a pretty good reason for not having exhausted before
filing, as in the case filed here.” (Docket No. 68, at 4.) Finally, he argues that “if you
didn’t exhaust and you think you have a good enough reason the Court at least has the
power to consider your argument.” (Docket No. 68, at 5.)

He concludes with the

guarantee that “if this court will dismiss the claim for failure to exhaust, [t]he plaintiff
will exhaust and refile the claim.” (Docket No. 68, at 6-7.)
Based on the evidence of record and Strange’s own admission, the Court finds
that Strange has failed to exhaust his available administrative remedies as required by
the PLRA § 1997e(a). He filed no grievances relative to his freedom of religion claim
and did not appeal the only grievance filed relative to his medical treatment claim. He
filed one grievance, Grievance #5, which does relate to the claims in his Amended
Complaint for confiscation or deprivation of various magazines and periodicals; but he

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did not appeal that grievance. Thus, he did not properly exhaust his available remedies
because he failed to comply with prison grievance procedures. See Jones, 549 U.S. at
218. Woodford, 548 U.S. at 91. He filed only one appeal on one grievance that is
marginally related to his remaining claims; however, the Court finds that grievance and
appeal are not relevant because neither his Complaint nor Amended Complaint make
any mention of the items relative to that grievance. It is clear to the Court that Strange
was aware of the grievance and appeal procedure, as evidenced by his receipt and
signing of the Jail policy describing those procedures and also by the several other
grievances he filed. Further, the Court is unpersuaded by Strange’s proposition that he
should be relieved from the PLRA’s requirement that he properly exhaust his claims.1
Therefore, the Court concludes that summary judgment is appropriate as to each of
Strange’s remaining claims against these Defendants because he failed to properly
exhaust his available administrative remedies as required by the PLRA § 1997e(a).

1

The authorities cited by Strange in his Response do not abrogate the PLRA’s exhaustion requirement as

he suggests. Strange relies most heavily on a decision by the Western District of Michigan, Jenkins v.
Toombs, 32 F. Supp. 2d 955 (W.D. Mich. 1999), and on a decision by the Second Circuit Court of
Appeals, Howell v. INS, 72 F.3d 288 (2d Cir. 1995).

Jenkins which dealt with the total exhaustion rule

prior to the Sixth Circuit’s decision in Jones Bey v. Johnson, 407 F.3d 801 (6th Cir. 2005), actually cuts
against Strange’s argument because the court in Jenkins decided that the plaintiff’s unexhausted claims
still must be dismissed even if other properly exhausted claims remained. 32 F. Supp. 2d at 959. Howell
dealt with a wholly different context, exhaustion in immigration proceedings and the administrative
functions of the Immigration and Naturalization service, and did not pertain in any way to the PLRA. See
72 F.3d at 290-94. Moreover, even if Jenkins or Howell supported Plaintiff’s position here, neither of
those cases has any controlling authority on this Court’s decision. Finally, the Court notes that binding
Supreme Court precedent makes clear that exhaustion is mandatory and not a matter within this Court’s
discretion. Porter, 534 U.S. at 524.

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CONCLUSION
For these reasons, the Court will GRANT both Defendant Pruitt and Defendants
Strode and Edmonds’ Motions to Dismiss, (Docket Nos. 37 & 54), and will DENY as
moot Plaintiff’s Motion for Summary Judgment, (Docket No. 36), and Defendant
Pruitt’s Motion for Leave to File Supplement to Motion for Summary Judgment,
(Docket No. 79). An appropriate Order of dismissal will issue separately with this
Opinion.

Date:

cc:

March 5, 2013

Counsel
Calvin D. Strange, pro se

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