Dunbar v. Wright et al
Filing
25
ORDER AND REASONS granting 12 Motion for Summary Judgment; denying 14 Motion for Partial Summary Judgment. Signed by Judge Ivan L.R. Lemelle on 3/21/2012. (LAG)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
TYRONE DUNBAR
CIVIL ACTION
VERSUS
NO. 11-292
SARGEANT WRIGHT AND STATE OF LOUISIANA,
THROUGH THE DEPARTMENT OF PUBLIC SAFETY
AND CORRECTIONS, AND DIXON CORRECTIONAL
INSTITUTE
SECTION B (4)
ORDER AND REASONS
Before the Court is Sergeant Derrick Wright, and the State of
Louisiana, through the Department of Public Safety and Corrections'
("Defendants") Motion for Summary Judgment and responsive pleading.
(Rec. Doc. Nos. 12 and 23).
In response, Plaintiff Tyrone Dunbar
filed his Opposition to Defendants' Motion for Partial Summary
Judgment.1 (Rec. Doc. No. 18).
In turn, Plaintiff filed his FRCP
56 (A) Motion for Partial Summary Judgment. (Rec. Doc. No. 14). In
response, Defendants filed their Opposition to Motion for Partial
Summary Judgment.
(Rec. Doc. No. 20).
Accordingly, and for the reasons pronounced below, IT IS
ORDERED that Defendants' Motion for Summary Judgment (Rec. Doc. No.
12) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff's FRCP 56 (A) Motion for
1
Defendants filed a Motion for Summary Judgment, not
Partial Summary Judgment. (Rec. Doc. No. 12).
1
Partial Summary Judgment (Rec. Doc. No. 14) is DENIED.
Cause of Action and Facts of the Case:
Plaintiff
was
an
inmate
at
Dixon
Correctional
Institute
("DCI") at all times pertinent to the immediate case. (Rec. Doc.
No. 18, at 1).
Plaintiff submits that on January 2, 2011, he was
in the vicinity of dorms E and B at DCI.
Plaintiff further submits
that on this day, Defendant Wright, a correctional officer at DCI,
advised Plaintiff that due to his suspicious actions, Defendant
Wright
had
to
perform
a
strip
search
on
Plaintiff.
(Id.).
Plaintiff then submits that Defendant Wright ordered Plaintiff into
a security bathroom, away from the view of others, and ordered
Plaintiff to perform fellatio on Defendant Wright.
(Id.).
Pursuant to this alleged assault, Plaintiff retained a fluid
sample from Defendant Wright in a green top vial. (Id. at 2).
This sample was submitted for testing to the DNA Diagnostic
Center in Fairfield, Ohio, and its results indicate that the fluids
in the green top vial were seminal fluids and saliva. (Id.; see
also Rec. Doc. No. 18-3, at 1).
Once these results were reported,
Sergeant Wright and Plaintiff submitted to a DNA test to be
conducted by the DNA Diagnostic Center. (Id.).
The results of the
comparison test yielded a match to both Plaintiff and Defendant
2
Wright. (Id.; Rec. Doc. No. 18-2, at 4).2
Plaintiff also filed a complaint to the DOC, pursuant to the
Corrections Administrative Remedy Procedure [ARP].
12-3, at 3-5).
(Rec. Doc. No.
Pursuant to DOC’s investigation, on January 10,
2011, Lieutenant Colonel Keith Turner and Captain Denise Felker
interviewed
Plaintiff and Defendant Wright.
(Id. at 10). In said
interviews, according to Lt. Turner and Capt. Felker’s February 1,
2011 letter to the Warden, Plaintiff reiterated his version of the
alleged assault and Defendant Wright denied the same.
(Id.). On
January 20, 2011, a polygraph test was administered to Plaintiff
and Defendant Wright by Colonel Russel Bordelon.
(Id.).
The
report of this test revealed that “deception was indicated by
offender Dunbar concerning the alleged incident.”
(Id.); (Rec.
Doc. No. 12-3, at 14-15).
On February 16, 2011, when Plaintiff received the First Step
2
The major DNA profile is consistent with Tyrone J.
Dunbar (item 02.A.1) and the minor DNA profile is
consistent with Derrick D. Wright (item 03.A.1). The
probability of selecting an unrelated individual at
random from the population having a DNA profile
matching the major profile obtained from item 01.A.1ns
(section of swab of unknown liquid in green top vialnonsperm fraction) is approximately 1 in 24,500,000
individuals. The probability of selecting an unrelated
individual at random from the population having a DNA
profile matching the minor DNA profile obtained from
item 01.A.1ns (section of swab of unknown liquid in
green top vial-nonsperm fraction) is approximately 1 in
39,500 individuals.
(Rec. Doc. No. 18-2, at 4)(emphasis added).
3
Response that indicated his step one complaint against Defendant
Wright had been denied, he checked a box stating: “I am not
satisfied with this response and wish to proceed to Step Two.”
(Rec. Doc. No. 12-3, at 17).
Thusly, on February 18, 2011,
Plaintiff filed another written complaint, captioned Administrative
Remedy,
arguing
that
“[d]ue
to
this
investigation
of
poorly
investigating reports by Lt. Colonel Turner and Warden James
Stevens on above date, 1/10/2011, my request for administrative
remedy was denied.”
(Rec. Doc. No. 12-3, at 12).
On February 22,
2011, Plaintiff initiated this action in the 20th Judicial District
for the Parish of East Feliciana.
(Rec. Doc. No. 1, at 1).
However, DCI’s Administrative Remedy Procedure & Property Claims
chart indicates that Plaintiff filed his step two complaint on
March 14, 2011. (Rec. Doc. No. 12-3, at 2). The complaint was
accepted on the same date, but, there is no disposition date or
disposition code listed. (Id.). As such, there was no response to
Plaintiff’s step two complaint. (Id.).
LAW AND ANALYSIS
a. Motion for Summary Judgment
Summary judgment is proper if the pleadings, depositions,
interrogatory
answers,
and
admissions,
4
together
with
any
affidavits, show that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a matter
of law.
Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett,
477 U.S. 317, 327 (1986).
would
allow
nonmovant.
(1986).
a
A genuine issue exists if the evidence
reasonable
jury
to
return
a
verdict
for
the
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
Although the Court must consider the evidence with all
reasonable inferences in the light most favorable to the nonmoving
party, the nonmovant must produce specific facts to demonstrate
that a genuine issue exists for trial.
Webb v. Cardiothoracic
Surgery Assocs. of N. Texas, 139 F.3d 532, 536 (5th Cir. 1998).
The nonmovant must go beyond the pleadings and use affidavits,
depositions, interrogatory responses, admissions, or other evidence
to establish a genuine issue.
Id.
Accordingly, conclusory
rebuttals of the pleadings are insufficient to avoid summary
judgment.
Travelers Ins. Co. v. Liljeberg Enter., Inc., 7 F.3d
1203, 1207 (5th Cir. 1993).
b. Administrative Exhaustion is Mandatory
Title
42
U.S.C.
§
1997e(a),
as
amended
by
the
Prison
Litigation Reform Act of 1996 (“PLRA”), provides that “[n]o action
shall be brought with respect to prison conditions under section
1983 . . . by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as are
available are exhausted.” The United States Supreme Court has held
5
that “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).
Thusly, by its very terms, the PLRA applies to Plaintiff’s instant
§ 1983 claim.
“The failure to exhaust is an affirmative defense and, under
the
PLRA,
inmates
are
not
required
to
demonstrate exhaustion in their complaints.”
specially
plead
or
Rebaldo v. Jenkins,
660 F.Supp.2d 755, 761 (E.D. La. 2009) (quoting Jones v. Bock, 549
U.S. 199, 216 (2007)) (internal quotation marks omitted).
Thusly,
Defendants bear the burden of proof concerning ARP exhaustion both
at trial and in pretrial motions.
In Louisiana law, it is well settled that “[n]o prisoner suit
shall assert a claim under state law until such administrative
remedies as are available are exhausted. If a prisoner suit is
filed in contravention of this Paragraph, the court shall dismiss
the suit without prejudice.” LA. REV. STAT. § 15:1184(A)(2). This
requirement applies to any prisoner complaint “ with respect to the
conditions of confinement or the effects of actions by government
officials in the lives of persons confined in prison.” LA. REV. STAT.
§ 15:1184(A)(1)(a). Furthermore, it is well noted that “Louisiana
has a two-step Administrative Remedy Procedure (“ARP”) for inmates,
which they are required to use before filing suit in district
6
court.”
Dillon v. Rogers, 596 F.3d 260, 265 (5th Cir. 2010).
Here,
Defendants
have
provided
facts
that
there
was
an
administrative remedy process available to Plaintiff. Furthermore,
Plaintiff utilized said process and initially received a Denial of
his first claim. (Rec. Doc. No. 12-3, at 2). In response, he
indicated on his First Step Response Form (Rec. Doc. No. 12-3, at
17) that he “was not satisfied with this response and [wished] to
proceed to Step Two.”
On this same form, which was dated February
16, 2011, he also wrote “I[,] offender Tyrone Dunbar[,] [i]s
requesting for another investigation and let it maybe conducted, by
[a]n licensed [i]nvestigator properly.” (Id.). Thusly, he clearly
indicated his intent to proceed with step two of the ARP. However,
after he indicated said interest, on February 22, 2011, he then
filed the instant suit in the 20th Judicial District Court for the
Parish of East Feliciana. Therefore, he did not complete the second
step of the ARP, nor did he receive a response from the second step
of the process.
The Fifth Circuit has held that “[i]f the inmate is not
satisfied with the second step response, he or she may then file
suit in district court.” Dillon, 596 F.3d at 266 (citations omitted
and emphasis added); see also LA. ADMIN. CODE 22, pt. I § 325 (J)(2)(2)(a).3 Plaintiff failed to wait for a response, and both the
3
Second Step (time limit 45 days). An offender who is
dissatisfied with the first step response (Form
7
respective case law and code state that an inmate must wait for a
response from his/her second step before the inmate may proceed to
district court.
Here, there was no such response, and no showing
of justification in order to award such a response at the second
stage of the administrative process.
Further, the Fifth Circuit has recognized that “[u]nder our
strict approach, we have found that mere ‘substantial compliance’
with administrative remedy procedures does not satisfy exhaustion;
instead, we have required prisoners to exhaust available remedies
properly.” Dillon, 596 F.3d at 268 (emphasis added). By only
receiving a step one response, Plaintiff merely “‘substantial[ly]
compl[ied]’” with [the] administrative remedy procedures, and this
[did] not satisfy exhaustion.” Thusly, Plaintiff failed to “exhaust
[the] available remed[y] properly.” Id. The failure to wait for a
B-05-005-ARP-2) may appeal to the secretary of the
Department of Public Safety and Corrections by so
indicating that he is not satisfied in the appropriate
space on the response form and forwarding it to the ARP
screening officer within five days of receipt of the
decision. A final decision will be made by the
secretary or designee and the offender shall be
notified within 45 days of receipt utilizing the second
step response (Form B-05-005-ARP-3). A copy of the
secretary's decision shall be sent to the warden.
a. If an offender is not satisfied with the second step
response (Form B-05-005-ARP-3), he may file suit in
district court. The offender must furnish the
administrative remedy procedure number on the court
forms.
LA. ADMIN. CODE 22, pt. I § 325 (J)(2)-(2)(a) (emphasis added).
8
step
two
response,
was
“[Plaintiff’s]
failure
to
pursue
his
grievance remedy to conclusion[,] [and therefore] constitutes a
failure to exhaust his administrative remedies.”
Johnson v.
Cheney, 313 Fed. Appx. 732, at *1 (5th Cir. 2009).
Furthermore, the Court recognizes that despite his reliance
upon Pope v. State, 792 So.2d 713 (La. 2001), Plaintiff is now
asserting a § 1983 claim in federal court.
As such, because there
is a working administrative grievance system in place, he must
fully exhaust that process.4
Accordingly, at this time, summary
judgment in favor of Defendants is appropriate.
The Court’s
instant ruling does not preclude Plaintiff from refiling a motion
for
summary
judgment
after
he
has
completely
exhausted
the
administrative remedies available to him.
Accordingly, and for the reasons pronounced above, IT IS
ORDERED that Defendants' Motion for Summary Judgment (Rec. Doc. No.
12) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff's FRCP 56 (A) Motion for
4
But, while Pope or its progeny govern the effect of the
prison administrative system on a claim later filed in
state court, it has no impact on the necessity of
exhaustion prior to the filing of a § 1983 claim in
federal court. As long as a prison administrative
grievance system remains in force (as the state assures
us is the case), [the inmate] must exhaust. Exhaustion
remains mandatory, “irrespective of the forms of relief
sought and offered through administrative remedies.”
Ferrington v. La Dept. of Corrections, 315 F.3d 529,
532 (5th Cir. 2002).
9
Partial Summary Judgment (Rec. Doc. No. 14) is DENIED.5
New Orleans, Louisiana, this 21st day of March, 2012.
______________________________
UNITED STATES DISTRICT JUDGE
5
It is worth noting that Plaintiff’s Motion for Partial Summary
Judgment primarily contends that partial summary judgment is
appropriate on the issue of an alleged sexual assault because of
Plaintiff’s contentions and the fluid he retained from this alleged
assault, which matches Defendant Wright. However, the Court notes
that the mere retention of a bodily fluid from Defendant Wright
does not, by itself, evince a sexual assault occurred. This bodily
fluid could have been retained from a consensual sexual encounter.
Accordingly,
partial
summary
judgment
on
this
issue
is
inappropriate.
10
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