Mosley v. Spaven et al

Filing 18

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff shall respond to defendants' motion for summary judgment no later than April 3, 2015. Defendants shall file any response brief no later than April 13, 2015. Response to Court due by 4/3/2015. Signed by Magistrate Judge Abbie Crites-Leoni on 3/6/15. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
DEVIN MOSLEY,
Plaintiff,
v.
DONNA SPAVEN, et al.,
Defendants,

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No. 1:14CV177 ACL

MEMORANDUM AND ORDER
Defendants Eddie Hartline, David Helman, Brandi Juden, and Donna Spaven have moved
for summary judgment on the ground that plaintiff failed to exhaust administrative remedies
before filing this action. Plaintiff has not yet responded.
The Prison Litigation Reform Act (“PLRA”) provides that: “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 Missouri Department of
Corrections has a three-step grievance procedure: and informal resolution request, a formal
grievance, and a grievance appeal. Defendants assert that plaintiff’s claims were not exhausted
when he filed this suit because his grievance was on appeal with the Department at the time he
filed this case.
Summary judgment is the proper forum to determine whether a prisoner’s claims have
been properly exhausted. E.g., Dillon v. Rogers, 596 F.3d 260, 272 (5th Cir. 2010). When
reviewing a motion for summary judgment, the Court must construe the record in the light most
favorable to the non-moving party. The moving party bears the burden of establishing the

absence of any issue of material fact and its entitlement to judgment as a matter of law. The
burden then shifts to the non-moving party, who may not rest on the pleadings, but must provide
specific facts showing that issues of material fact exist for trial. Fed. R. Civ. P. 56; Heisler v.
Metropolitan Council, 339 F.3d 622, 626 (8th Cir. 2003). In this case, that means that plaintiff
must produce his grievance record in order to demonstrate that he has properly exhausted the
grievance procedure regarding the claims in his complaint.
Plaintiff shall have until April 3, 2015, to file his response to defendants’ motion for
summary judgment.

If plaintiff feels that he is unable to respond to the motion without

conducting some discovery, he must file a motion for discovery explaining the necessity for the
discovery. Defendants shall file any response brief no later than April 13, 2015.
Accordingly,
IT IS HEREBY ORDERED that plaintiff shall respond to defendants’ motion for
summary judgment no later than April 3, 2015. Defendants shall file any response brief no later
than April 13, 2015.
Dated this 6th day of March, 2015.

ABBIE CRITES-LEONI
UNITED STATES MAGISTRATE JUDGE

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