Daniel v. Harper et al

Filing 43

MEMORANDUM OPINION AND ORDER by Senior Judge Thomas B. Russell on 10/20/2017 re 30 , 31 , 32 , 35 MOTIONS for Summary Judgment. Defendants Harper, Johnston and Boyd SHALL file briefs with the Court addressing the issues [set forth], NO LATER THAN 11/10/2017. Plaintiff Daniel SHALL file one Response to these briefs NO LATER THAN fourteen (14) days after entry of Defendants' briefs. cc: Plaintiff, pro se; Counsel (CDR)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT PADUCAH
CIVIL ACTION NO. 5:17-CV-19-TBR
GEORGE DANIEL,

PLAINTIFF

v.
LINDSAY HARPER, et. al.,

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This matter comes before the Court upon four separate motions. Plaintiff George Daniel,
proceeding pro se, has filed two Motions for Summary Judgment: one against Defendants
Lindsay Harper and Matthew Johnston, [DN 30], and one against Defendant Bradley Boyd. [DN
31.] Harper and Boyd have filed a Motion for Summary Judgment against Daniel. [DN 32.]
Likewise, Boyd too has filed a Motion for Summary Judgment against Daniel. [DN 35.] For the
following reasons, the Court will order the parties to brief the matter more fully before rendering
a decision on these Motions.
I. DISCUSSION
The principal argument advanced by all three Defendants in support of their motions is
that Daniel has failed to exhaust his administrative remedies pursuant to the Prison Litigation
Reform Act of 1995. 42 U.S.C. § 1997e(a). The PLRA demands that, prior to inmates seeking
legal redress in federal court, they must exhaust all administrative remedies within the jail or
prison in which they reside. See Porter v. Nussle, 534 U.S. 516, 524 (2002). Importantly, though,
a prisoner need only exhaust those administrative remedies which are actually available to him.
See Ross v. Blake, 136 S. Ct. 1850, 1858 (2016) (explaining that an inmate “need not exhaust

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unavailable [remedies.]”). The Supreme Court laid out three scenarios in which otherwise
available remedies become unavailable:
1) Where the grievance procedure “operates as a simple dead end – with officers unable
or consistently unwilling to provide any relief to aggrieved inmates.” Id. at 1859.
2) Where the “administrative scheme…[is] so opaque that it becomes, practically
speaking, incapable of use. In this situation, some mechanism exists to provide relief,
but no ordinary prisoner can discern or navigate it.” Id.
3) Where “prison administrators thwart inmates from taking advantage of a grievance
process through machination, misrepresentation, or intimidation.” Id. at 1860.
In the present case, there appears to be some confusion as to the proper grievance
process, whether and where this process is posted and/or available in the Christian County Jail,
and whether the inmate handbook provides incomplete information regarding the grievance
process. Specifically, Defendants attach as an exhibit to their instant Motions a two-page
description of the grievance process, including the proper appeals process, which is apparently
necessary for exhaustion purposes. [See DN 32-33; 35-23.] However, in his Reply to his own
Motion for Summary Judgment, Plaintiff attaches a photocopied page purportedly from the
inmate handbook, which addresses the grievance process but mentions nothing of how to appeal
or even that an appeals process exists. [See DN 40-1, at 4; DN 41-1, at 4.]
The grievance procedure to which Defendants cite provides as follows:
Any prisoner shall be allowed to file a grievance at such time as the prisoner
believes he or she has been subject to abuse, harassment, abridgment of civil
rights or denied privileges specified in the posted rules. (Grievances must be
restricted to incidents which occur while the prisoner is in custody of the center.)
No prisoner shall fear against reprisal for initiating grievance procedure in an
attempt to resolve legitimate complaints.
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501 KAR 3:140, § 7. [See DN 32-33.] In addition to this general description of the Jail’s
grievance policy, there are also detailed procedures, which lay out the manner in which prisoners
should go about filing such grievances, including the appeals process. Specifically, the grievance
policy to which Defendants cite provides the following: “If not satisfied with the disposition of
the grievance by the Jailer, the inmate shall be furnished paper, pencil, and an envelope in order
to set forth his grievance in writing and his objection to the disposition of the grievance. The
inmate’s appeal letter will then be forwarded to the Department of Corrections.” [Id. at 2.]
Conversely, the handbook page to which Daniel cites provides as follows:
1. Any inmate will be allowed to file a grievance if he/she believes he/she
has been subjected to abuse, harassment, a violation of civil rights or has been
denied privileges without justification.
2. Such grievances shall be in written form on any type of paper,
addressed to the Jailer and sealed in an unstamped envelope or handed [to] jail
staff.
3. An inmate shall not fear against reprisal from initiating grievance
procedures in an attempt to resolve legitimate complaints.
[DN 40-1, at 4.] Noticeably absent is information regarding the appeals process for
grievances. The Court is aware that the entire handbook is not attached to Daniel’s Reply, and
that the appeals process may be laid out elsewhere. However, given that there is a great deal of
confusion as to the actual grievance process and, more importantly, its actual availability to
Daniel, the Court will order both sides to brief this issue more fully before it rules on the four
pending Motions for Summary Judgment.
II. CONCLUSION
For the reasons stated herein, IT IS HEREBY ORDERED as follows:
1) Defendants Harper, Johnston and Boyd SHALL file briefs with the Court addressing
the issues above, focusing in particular on the discrepancies between the policy to which they

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cite and the handbook page to which Daniel cites. These should be filed with the Court NO
LATER THAN November 10, 2017.
2) Plaintiff Daniel SHALL file one Response to these briefs NO LATER THAN
fourteen (14) days after entry of Defendants briefs above.
3) There will be no reply briefs filed.
IT IS SO ORDERED.

October 20, 2017

cc:

George Daniel, pro se plaintiff
Christian County Jail
410 W. Seventh St.
Hopkinsville, KY 42240
Counsel of Record

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