Padgett v. Pain et al

Filing 33

MEMORANDUM OPINION AND ORDER by Chief Judge Joseph H. McKinley, Jr., granting 22 Motion for Summary Judgment. cc: Plaintiff, pro se; Counsel (JLS)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT OWENSBORO
MICHAEL DEWAYNE PADGETT
v.

PLAINTIFF
CIVIL ACTION NO. 4:14CV-P33-JHM

CHAD PAYNE

DEFENDANT
MEMORANDUM OPINION AND ORDER

On initial review of the complaint and its amendment pursuant to 28 U.S.C. § 1915A, the
Court allowed pro se Plaintiff Michael Dewayne Padgett’s Eighth Amendment excessive-force
claim arising out of a February 9, 2014, incident to proceed against Defendant Chad Payne in his
individual capacity for damages (DN 7). Now before the Court is Defendant Payne’s motion for
summary judgment (DN 22). Plaintiff filed a response (DN 25) and exhibits in support thereof
(DN 30), and Defendant filed a reply (DN 27). For the reasons that follow, Defendant’s motion
will be granted.
I. LEGAL STANDARD
Summary judgment is appropriate where “the movant shows 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). The moving party bears the initial burden of specifying the basis for its
motion and identifying that portion of the record that demonstrates the absence of a genuine
issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the moving
party satisfies this burden, the non-moving party thereafter must produce specific facts
demonstrating a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986).

Although the Court must review the evidence in the light most favorable to the nonmoving party, the non-moving party must do more than merely “show that there is some
metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). Instead, the Federal Rules of Civil Procedure require the nonmoving party to present specific facts showing that a genuine factual issue exists by “citing to
particular parts of materials in the record” or by “showing that the materials cited do not
establish the absence . . . of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). “The mere existence of a
scintilla of evidence in support of the [non-moving party’s] position will be insufficient; there
must be evidence on which the jury could reasonably find for the [non-moving party].”
Anderson v. Liberty Lobby, Inc., 477 U.S. at 252. “[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).
“When opposing parties tell two different stories, one of which is blatantly contradicted by the
record, so that no reasonable jury could believe it, a court should not adopt that version of the
facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372,
380 (2007).
II. ANALYSIS
In the complaint (DN 1), Plaintiff alleged that on February 9, 2014, while incarcerated at
the Daviess County Detention Center (DCDC), Defendant Payne “willingly assaulted me in the
Face with his Fist” and that there was “swelling on my left cheek right Below my left eye.” He

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claimed that he was refused “a 1983 Form, and phone calls with My Lawyer untill shipped to
prison, on Thursday, Febuary 13th and Tuesday Febuary 11th” and that a copy of the video of
the assault was given to the State Police and the Daviess County Prosecutor. In the amendment
(DN 9) to the complaint, Plaintiff alleged that the video and a written report showed as follows:
I was secured in The emergency Restraint chair Before i was Assaulted By
corporl Chad Pa[yne]. And Then Tased. This chair Includes Belly Strapes,
Feet Straps and My Hands were handcuffed Behind by Back, I was Also
Being held around my Neck/head were it was hard to Breath, which would
and did retain me From any kind of Retaliation.
In the motion for summary judgment, Defendant argues that Plaintiff abandoned the
action; that Plaintiff failed to exhaust available administrative remedies; and that Defendant is
entitled to qualified immunity. Because the Court concludes that Plaintiff failed to exhaust his
excessive-force claim, the Court will not consider the other arguments.
The Prison Litigation Reform Act (PLRA) is applicable to this case as it applies to suits
by prisoners concerning prison conditions. The PLRA states, “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.” 42 U.S.C. § 1997e(a). The Supreme Court has
explained, “the PLRA’s exhaustion requirement applies 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 v. Nussle, 534 U.S. 516, 532 (2002). Exhaustion
of all administrative remedies is mandatory, and the remedies provided need not meet federal
standards or be plain, speedy and effective. Id. at 524. Even if the relief sought is not available,
exhaustion is still required. Id.; see also Woodford v. Ngo, 548 U.S. 81, 85 (2006) (“[A] prisoner
must now exhaust administrative remedies even where the relief sought-monetary damages-

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cannot be granted by the administrative process[.]”). One purpose of the exhaustion requirement
is to give prison officials an opportunity to take corrective action and eliminate the need for a
lawsuit. Porter v. Nussle, 534 U.S. at 525. Prisoners are no longer required to demonstrate
exhaustion in their complaints. Jones v. Bock, 549 U.S. 199, 216 (2007). Instead, failure to
exhaust administrative remedies is “an affirmative defense under the PLRA” which the
defendant bears the burden of establishing. Id.
Finally, an inmate’s case may be dismissed for failure to exhaust where it is shown that
the inmate did not “properly” exhaust. Woodford v. Ngo, 548 U.S. 81, 93-95 (2006). To
“properly” exhaust means that the inmate “‘complete[d] the administrative review process in
accordance with the applicable procedural rules,’ rules that are defined not by the PLRA, but by
the prison grievance process itself.” Jones v. Bock, 549 U.S. at 218 (quoting Woodford v. Ngo,
548 U.S. at 88). “The level of detail necessary in a grievance to comply with the grievance
procedures will vary from system to system and claim to claim, but it is the prison’s
requirements, and not the PLRA, that define the boundaries of proper exhaustion.” Id.
Defendant bears the burden of proof on the issue of exhaustion. “‘[W]here the moving
party has the burden-the plaintiff on a claim for relief or the defendant on an affirmative defensehis showing must be sufficient for the court to hold that no reasonable trier of fact could find
other than for the moving party.’” Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986)
(quoting W. Schwarzer, Summary Judgment Under The Federal Rules: Defining Genuine Issues
of Material Fact, 99 F.R.D. 465, 487-88 (1984)). “Summary judgment is appropriate only if
defendants establish the absence of a ‘genuine dispute as to any material fact’ regarding nonexhaustion.” Risher v. Lappin, 639 F.3d 236, 240 (6th Cir. 2011) (citing Fed. R. Civ. P. 56(a)).

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In support of his argument that Plaintiff failed to exhaust available administrative
remedies, Defendant Payne attaches the affidavit of Major Kenneth Ehlschide, a command staff
officer at the DCDC (DN 22, Aff.). Major Ehlschide avers that at all times material to this action
DCDC had a grievance procedure in place and that Plaintiff “filed no grievances related to any of
the claims he asserts in this action.” Id.
Major Ehlschide attached two DCDC grievance procedures to his affidavit (DN 22, Aff.,
Exs. A & B). The first procedure pursuant to “501 KAR 3:140” provides, in pertinent part, as
follows:
Inmates wishing to file a grievance must use the following procedure:
1.
Attempt to solve the problem though verbal
communication with the person believed to be
responsible for the condition.
If that person does not solve the issue, then the
2.
grievance process may be initiated.
3.
Inmates shall be able to file their grievances in a secure
and confidential manner without a threat of retaliation.
4.
All inmates shall have equal access to the grievance
system.
5.
Grievance process shall be readily available to all
inmates.
6.
Send your grievance to “Grievance” on kiosk within 48
hours of the incident following the on screen
instructions of the kiosk.
a.
There is no time limit to submitted a grievance
regarding an allegation of sexual abuse.
b.
Nothing in the section shall restrict the DCDC’s
ability to defend against an inmate lawsuit on the
ground that the applicable statute of limitations
has expired.
7.
The grievance officer shall have ten business days from
the date sent to conduct an investigation and respond to
the grievance.
....
9.
[T]he inmate may appeal his/her grievance to the jailer.
This appeal must occur within 48 hours of receipt by the
inmate of the initial response . . . .
(DN 22, Ex. A).
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Major Ehlschide explains that the DCDC “uses a computer KIOSK system to allow
inmates to request information, ask questions, or file medical requests or grievances.” To his
affidavit, he attaches a copy of the “Resident Request Report” for Plaintiff for the time period of
June 20, 2013, through September 19, 2014 (DN 22, Ex. C), which reveals that Plaintiff used the
KIOSK on five occasions between the date of the assault on February 9, 2014, through
February 18, 2014,1 the date Plaintiff was transferred away from the DCDC. On none of the five
occasions did Plaintiff request a grievance form or complain about Defendant Payne’s alleged
actions during the February 9, 2014, incident in question.
As to the second grievance procedure, to his affidavit, Major Ehlschide also attaches an
“inmate rights document [that] sets out the grievance process to be followed by an inmate at the
[DCDC] who desires to file a grievance regarding his or her conditions of confinement” (DN 22,
Aff., Ex. B). The process provides that an inmate shall “[a]ttempt to solve the problem through
verbal communication with the person believed to be responsible for the condition”; “[i]f that
person does not solve the issue, then a Grievance Form may be requested”; and “[c]omplete and
submit a Grievance Form to the captain within five calendar days of the incident.” Id.
Thereafter, if an inmate is dissatisfied with the captain’s decision or does not receive a response
within ten business days, the inmate may appeal to the jailer within five calendar days. Id. The
jailer or designee shall have ten business days to conduct an investigation and respond to the
appeal. Id.
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Review of Plaintiff’s Resident Request Report reveals that Plaintiff used the KIOSK on the following
five dates between the date of the assault and his transfer and for the following purposes: on February 11,
2014, Plaintiff indicated, “I need a 1983 form I feel my rights have been violated as a state inmate”; on
February 13, 2014, he indicated, “I need 2 1983 forms Im not being allowed to call my attorney now and
Ive reported the assault to my paid lawyef Jessica she told me to place a follow up call to her and Im
being restricted from calling my lawyer”; on February 14, 2014, he indicated, “I need my shock probation
packet Im up for shock probation as of the 12th of dis month”; on February 16, 2014, he indicated, “I
need a probation packet”; and on February 17, 2014, he indicated, “Captain Lshawde are U still going to
talk to me today I really need to speak with U??”

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Defendant has submitted evidence showing that Plaintiff filed no grievance related to the
excessive-force claim asserted in this action, despite having ample opportunity to do so. The
Court concludes that Defendant has satisfied his burden of proving that Plaintiff failed to exhaust
his available administrative remedies.
“A prisoner’s lack of compliance may be excused if the administrative remedies are not
available, but [the Sixth Circuit] has required a prisoner to make ‘affirmative efforts to comply
with the administrative procedures before analyzing whether the facility rendered these remedies
unavailable.’” Lee v. Willey, 789 F.3d 673, 677 (6th Cir. 2015) (quoting Napier v. Laurel Cty.,
636 F.3d 218, 223 (6th Cir. 2011)). In his unverified response (DN 25) to the summaryjudgment motion, Plaintiff admits that he did not file a grievance. He contends:
My faliuer to use the Greivance perseduer is not my fault. After the
Incident i was kept away from a Greivance I was only aloud to come out of
my cell once a week for a shower i was even refused my hour of rec I was
Transfered to the Dapartment of Corrections and There i requested a
Greivance and a 1983 Form i was told a Greviance at There facility couldn’t
be used on a County Jail, So I filed the lawsuit. I even stated my rights to
File a greivance was violated when i filled out my Complaint. I Shouldn’t
be held accountable for the Jails actions.
Plaintiff’s allegation that he “was kept away from a Greivance” is belied by the Resident
Request Report submitted by Defendant showing that Plaintiff was able to use the KIOSK five
times between the date of the incident on February 9, 2014, until his transfer on February 18,
2014, but failed to file a grievance on the incident or request a grievance form by way of the
KIOSK. Plaintiff also never alleges that he requested a grievance form by any other means from
anyone at DCDC. Further, contrary to Plaintiff’s assertion that “I even stated my rights to File a
greivance was violated when i filled out my Complaint,” neither the complaint nor its
amendment supports this unsworn assertion. Finally, as to Plaintiff’s unverified allegation that
he requested a grievance at the facility to which he was transferred, the first grievance procedure
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required the issue be submitted via KIOSK within 48 hours of the incident, and the second
procedure required the grievance form to be submitted within five calendar days of the incident.
Plaintiff was transferred outside of both time limits and therefore had the opportunity to comply
with the grievance procedures. Surles v. Andison, 678 F.3d 452, 455 (6th Cir. 2012) (“A
prisoner must adhere to any time limitations that are part of the institutional grievance policy.”)
(citing Risher, 639 F.3d at 240).
Plaintiff fails to provide any verified statements or any documentation demonstrating that
he made an affirmative effort to comply with the administrative procedures available at the
DCDC. The Court, therefore, finds that Plaintiff has failed to establish a genuine issue of
material fact as to his failure to exhaust.
III. ORDER
For the foregoing reasons, Defendant Payne is entitled to summary judgment.
IT IS THEREFORE ORDERED that the motion for summary judgment (DN 22) is
GRANTED and that the excessive-force claim against Defendant Payne is DISMISSED.
A separate Judgment will be entered.
Date:

March 25, 2016

cc:

Plaintiff, pro se
Counsel of Record
4414.005

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