Harbin v. Huddleston et al

Filing 24

MEMORANDUM OPINION by Senior Judge Thomas B. Russell on 7/2/2014; the Court will GRANT Defendants Motion for Summary Judgment. An appropriate Order will issue concurrently with this Opinion.cc:counsel; Plaintiff George Marion Harbin, pro se (DAK)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
CIVIL ACTION NO. 5:13-CV-00150-TBR
GEORGE MARION HARBIN

Plaintiff

v.
HOBERT HUDDLESTON, et al.

Defendant

MEMORANDUM OPINION
This matter is before the Court upon Defendants’ Motion for Summary
Judgment. (Docket No. 17.) Noting that Plaintiff George Harbin had not responded,
the Court granted Defendants’ Motion by Memorandum Opinion and Separate Order on
May 22, 2014. (Docket Nos. 18 & 19.) Then on June 13, 2014, Plaintiff filed a Motion
requesting an extension of time to respond to Defendants’ Motion for Summary
Judgment. (Docket No. 20.) Despite that the Court already had granted Defendants
summary judgment some three weeks prior, the Court granted Plaintiff’s Motion and
vacated its May 22 decision. (Docket No. 21.) Plaintiff now has filed what he styles as
a “Motion for Reconsideration,” which the Court construes as his Response to
Defendants’ Motion for Summary Judgment.

(Docket No. 22.) Accordingly, this

matter now is ripe for adjudication. For the following reasons, Defendants’ Motion for
Summary Judgment will be GRANTED and summary judgment entered in their favor.
BACKGROUND
Plaintiff is an inmate at the Kentucky State Penitentiary (KSP). Plaintiff is
incarcerated in KSP’s “7 cell house,” which he states is a supermax segregation unit.
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Plaintiff filed this action against ten KSP personnel in their individual capacities,
alleging (1) that he has been denied indoor and outdoor recreation, and (2) that has been
denied recreation because of “retaliatory behavior.” On initial review pursuant to 28
U.S.C. § 1915A, the Court dismissed Plaintiff’s retaliation claim but allowed his claim
for denial of indoor and outdoor recreation to proceed. (Docket No. 8.) Defendants
now move for summary judgment, arguing that Plaintiff has failed to exhaust his
administrative remedies in relation to his remaining claim.
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). 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).

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Additionally, the Court acknowledges that pro se pleadings are to be held to a
less stringent standard than formal pleadings drafted by attorneys. See Haines v.
Kerner, 404 U.S. 519 (1972). The duty to be less stringent with pro se complainants,
however, “does not require [the Court] to conjure up unpled allegations,” McDonald v.
Hall, 610 F.2d 16, 19 (1st Cir. 1979) (citation omitted), nor to create a claim for a pro se
plaintiff, Clark v. Nat’l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975).
DISCUSSION
The Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e, requires a
prisoner to exhaust all available administrative remedies before commencing an action
with respect to prison conditions. § 1997e(a). The United States Supreme Court,
interpreting § 1997e, has expressly stated: “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) (citing Porter v. Nussle, 534 U.S. 516, 524
(2002)).

In order “to properly exhaust administrative remedies prisoners must

‘complete 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.” Id. at 218 (citation omitted) (quoting Woodford v. Ngo, 548 U.S. 81, 88
(2006)). Accordingly, an inmate must demonstrate that he has exhausted all available
administrative remedies; when he fails to do so, dismissal of the complaint is
appropriate. E.g., Burden v. Price, 69 F. App’x 675, 676 (6th Cir. 2003).
At all times pertinent to this action, the Kentucky Department of Corrections
(KDOC) has had a set of policies and procedures in place governing inmate grievances.
Corrections Policy & Procedure 14.6(I)(J) outlines a four-step process for the filing and
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adjudication of inmate grievances. (Docket No. 17-2, at 7-13.) At the first step, an
informal resolution attempts to resolve the inmate’s properly filed grievance. (Docket
No. 17-2, at 7-10.) The policy requires that the initial grievance must be filed within 5
days after the complained-of incident occurs. (Docket No. 17-2, at 8.) If a grievant is
dissatisfied after step 1, he may request a review by the Grievance Committee. (Docket
No. 17-2, at 10-12.)

At this second step, the Grievance Committee reviews the

grievance and makes a written recommendation. (Docket No. 17-2, at 10-12.) If a
grievant still is dissatisfied, he may appeal the grievance to the Warden at step 3.
(Docket No. 17-2, at 12.) Finally, to conclude the process, if the grievant is dissatisfied
with the Warden’s decision, at step 4 he may appeal to the Commissioner of KDOC.
(Docket No. 17-2, at 12-13.) Based on these procedures, Defendants argue that Plaintiff
failed to exhaust his administrative remedies for his remaining claim.
Plaintiff attached as exhibits to his initial Complaint three grievances submitted
in relation to his denial-of-recreation claim: (1) Grievance No. 13-07-045-G, filed July
18, 2013, (Docket No. 1-1, at 1-2); (2) Grievance No. 13-07-049-R, filed July 23, 2013,
(Docket No. 1-2); and (3) Grievance No. 13-08-012-G, filed August 6, 2013, (Docket
No. 1-3). Though not perfectly clear, it appears that the first grievance was appealed to
the Grievance Committee, (see Docket No. 1-1, at 3), and then to the Warden, (see
Docket No. 1-4). However, there is nothing in the record to indicate that Plaintiff
completed the process by appealing the Warden’s decision to the Commissioner. Thus,
the Court finds that Plaintiff at best proceeded through step 3 on Grievance No. 13-07045-G but did not fully exhaust the administrative remedies available to him.

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In regard to the second grievance, there is nothing to indicate that Plaintiff
proceeded past step 1 in regard to Grievance No. 13-07-049-R. As such, the Court finds
that Plaintiff failed to exhaust his available administrative remedies with respect to this
grievance.
Lastly, in regard to the third grievance, Grievance No. 13-08-012-G, Plaintiff
has submitted documentation showing that this grievance was denied at step 1 on
August 13, 2013. (Docket No. 22-1, at 4.) Plaintiff also has submitted documentation
that appears to show that he wrote to the Warden sometime in March 2014 claiming that
he never received a response. 1 (See Docket No. 22-1, at 1-3.) Plaintiff received a written
response to that correspondence in a memorandum letter from the grievance coordinator
dated March 31, 2014, which again informed Plaintiff that this grievance had been
rejected. (Docket No. 22-1, at 1.) But even assuming this correspondence could be
construed as Plaintiff having appealed to the Warden, there is nothing in the record to
indicate that Plaintiff properly appealed the rejection of Grievance No. 13-08-012-G
through the four-step process—specifically, there is nothing to indicate that Plaintiff
appealed this grievance to the Grievance Committee at step 2 or to the Commissioner at
step 3.

Thus, the Court finds that Plaintiff did not fully exhaust his available

administrative remedies in regard to Grievance No. 13-08-012-G.
In further support of their Motion, Defendants have submitted the affidavit of
Mr. John Dunn, the KDOC Ombudsman. (Docket No. 17-1.) Mr. Dunn states that

1

Plaintiff’s claim that he still had not received a response to Grievance No. 13-08-012-G in March
2014 is belied by the fact that he attached a copy of that rejected grievance to his Complaint, which was
filed on September 3, 2013. (See Docket No. 1-3.)

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Plaintiff appealed three other grievances 2 through the four-step process between July
24, 2012, and September 3, 2013. (Docket No. 17-1, at 1.) None of those three
grievances, however, concern recreation time, outside recreation, or Plaintiff’s housing.
(Docket No. 17-1, at 1.)
Based on its review of the record here, the Court finds that Plaintiff failed to
exhaust all available administrative remedies before commencing this action. It is clear
that Plaintiff was aware of the exhaustion requirement and of the process for exhausting
his remedies, as he appears to have done so with three separate grievances during or
before the time span as when his three recreation-related grievances were filed.
Because Plaintiff failed to exhaust his available administrative remedies as required by
§ 1997e(a) prior to filing this action, Defendants are entitled to summary judgment on
Plaintiff’s remaining claim.
CONCLUSION
For the foregoing reasons, the Court will GRANT Defendant’s Motion for
Summary Judgment. An appropriate Order will issue concurrently with this Opinion.
Date:

cc:

July 2, 2014

Plaintiff George Marion Harbin, pro se
Counsel for Defendants

2

Those three Grievances are Grievance Nos. 12-05-033-G (concerning a claim that an officer had lost
documents belonging to Plaintiff), 13-03-086-G (concerning a claim that an officer grabbed Plaintiff’s
arm, causing bruising), and 13-06-034 (concerning a claim that an officer made a racist remark toward
Plaintiff). (Docket No. 17-1, at 1.)

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