Witte v. Culton et al

Filing 118

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendant Jason Lee's Motion for Summary Judgment is GRANTED. Signed by District Judge E. Richard Webber on February 21, 2013. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

JUSTIN EDWARD WITTE,
Plaintiff,
vs.
KEVIN CULTON, et al.,
Defendants.

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Case No. 4:11CV02036 ERW

MEMORANDUM AND ORDER
This matter comes before the Court on Defendant Jason Lee’s Motion for Summary
Judgment under 42 U.S.C. § 1997e(a) for failure to exhaust administrative remedies [ECF No.
102].
I.

BACKGROUND
Plaintiff, an inmate at the Crossroads Correctional Center, seeks monetary relief

in this action for the violation of his constitutional rights under 42 U.S.C. § 1983. Plaintiff’s
allegations arise from his incarceration at the Potosi Correctional Center (“PCC”). Plaintiff filed
a Third Amended Complaint on November 8, 2012. Named as a Defendant is Jason Lee
(“Defendant Lee”), a correctional officer at the PCC. Plaintiff claims that Defendant Lee, in his
individual capacity, violated Plaintiff’s constitutional rights under the Eighth Amendment.
In his Third Amended Complaint, Plaintiff alleges that he was assaulted and injured,
requiring back surgery, leaving him with permanent nerve damage and unable to use the stairs or
lift anything over ten pounds [ECF No. 97, ¶¶ 74, 82, 84]. Plaintiff claims that due to his
surgery, he had a “lay-in for no lifting over ten pounds.” Id. at ¶ 87. It is undisputed that on
September 19, 2011, Defendant Lee escorted Plaintiff from his cell to an upper walk cell [ECF

Nos. 97, 101, ¶ 87]. Plaintiff further alleges that although he told Defendant Lee that he was not
supposed to lift anything over ten pounds or climb stairs, he had to carry at least 30 pounds of his
personal property while handcuffed [ECF No. 97, ¶¶ 87-88]. Although the parties agree that,
during this incident, Defendant Lee attempted to check Plaintiff’s lay-in status, Defendant Lee
maintains that he was unable to confirm that Plaintiff had a lay-in for the lower walk cell [ECF
Nos. 97, 101, ¶ 89]. Plaintiff claims that Defendant Lee told him that he had to go up the stairs
or Defendant Lee would drag Plaintiff up them [ECF No. 97, ¶ 89]. Plaintiff also alleges that
Defendant Lee refused to help Plaintiff carry his belongings, giving him the option of dropping
and abandoning the property. Id. Plaintiff argues that Defendant Lee’s actions constituted
deliberate indifference to his medical needs, and caused Plaintiff to pinch a nerve while
ascending the stairs, resulting in lingering numbness in his leg and toes. Id. at ¶¶ 91-92. Plaintiff
states that he filed an Informal Resolution Request (“IRR”) on the day of the incident, September
19, 2011, against Defendant Lee for “threats and injury” [ECF No. 97-1].
On November 21, 2011, Plaintiff filed this lawsuit. Defendant Lee first filed a motion for
summary judgment on June 4, 2012 [ECF No. 42]. Prior to the Court ruling on the motion,
Plaintiff filed his Second Amended Complaint, but failed to name Jason Lee as a defendant [ECF
No. 52]. The Court denied Defendant’s motion for summary judgment as moot, and not on the
merits of the motion [ECF No. 56]. Plaintiff then filed a Third Amended Complaint renaming
Jason Lee [ECF No. 97]. On December 14, 2012, Defendant Lee renewed his Motion for
Summary Judgment under 42 U.S.C. § 1997e(a), alleging Plaintiff had not exhausted his
administrative remedies prior to filing suit.

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II.

LEGAL STANDARD
The Prison Litigation Reform Act (“PLRA”) requires that prisoners seeking relief in

federal court must first exhaust the administrative remedies available at the prison level. 42
U.S.C. § 1997e(a). If exhaustion of administrative remedies is not completed at the time the
lawsuit is filed, dismissal of the action is mandatory under the PLRA. Johnson v. Jones, 340
F.3d 624, 627–28 (8th Cir. 2003). The PLRA's administrative exhaustion requirement is an
affirmative defense that defendant has the burden to plead and prove. Nerness v. Johnson, 401
F.3d 874, 876 (8th Cir. 2005). Where a motion for summary judgment is founded on an
affirmative defense, the moving party has the burden to present facts establishing that defense.
See Ballard v. Rubin, 284 F.3d 957, 964 n.6 (8th Cir. 2002). The standards governing a motion
for summary judgment are well settled. Rule 56 of the Federal Rules of Civil Procedure permits
a district court to grant summary judgment with respect to an affirmative defense if the defendant
shows that there is no genuine dispute as to any material fact and the defendant is entitled to
judgment as a matter of law. A district court has discretion to determine when an issue is ripe for
summary judgment. Burton v. Hoskins, No. 1:10-CV-00165-SNJ, 2011 WL 1885347, at * 2
(E.D. Mo. May 18, 2011) (citing Pony Computer, Inc. v. Equus Computer Sys. of Mo., Inc.,162
F.3d 991, 996 (8th Cir. 1998)). “Discovery does not need to be complete before a case is
dismissed on summary judgment.” Id. (citing Dulany v. Carnahan, 132 F.3d 1234, 1238 (8th
Cir. 1997)).
III.

DISCUSSION
Defendant Lee argues that summary judgement is warranted as Plaintiff failed to exhaust

his administrative remedies. Under the PLRA, a prisoner may not bring a § 1983 action unless
he has exhausted all available administrative remedies. 42 U.S.C. § 1997e(a). Exhaustion under

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the PLRA is defined by the prison's grievance procedures. Jones v. Bock, 549 U.S. 199, 217-218,
127 S.Ct. 910, 922–23 (2007). Exhaustion under the PLRA means proper exhaustion, which is
compliance with an agency’s deadlines and other critical procedural rules. Woodford v. Ngo, 548
U.S. 81, 90, 126 S.Ct. 2378, 165 L.Ed. 2d 368 (2006). For a Missouri prisoner to exhaust all
administrative remedies, he must file: (i) an informal resolution request (“IRR”); (ii) a grievance;
and (iii) a grievance appeal. See Missouri Department of Corrections - Department Manual
(“Department Manual”), D5–3.2, § III (K)-(M) (Jan. 2, 2009) [ ECF No. 103-3, Exhibit B]. See
Foulk v. Charrier, 262 F.3d 687, 694 (8th Cir. 2001); Dashley v. Corr. Med. Serv., 345 F. Supp.
2d 1018, 1022–23 (E.D. Mo. 2004). The IRR is “[t]he first attempt to resolve an offender's
complaint through discussion between the offender and the appropriate staff with documentation
of this attempt,” and should be filed with 15 calendar days of the alleged incident. Department
Manual, pp. 2, 8 (emphasis added). If an inmate is not satisfied with the IRR response, he may
then file an Offender Grievance within seven calendar days after receiving the response on the
IRR. Id. at 13. If an inmate is not satisfied with the grievance response, he may file an offender
grievance appeal within seven calendar days of the grievance response. Id. at 15. Failure to do
so will result in the appeal being abandoned. Id. After receiving the appeal response, the
offender has exhausted the grievance process. Id. at 16.
Defendant Lee argues summary judgment is appropriate as Plaintiff failed to properly
exhaust his claim against Defendant Lee when he did not file a timely IRR regarding the alleged
mistreatment on September 19, 2011. In his Statement of Uncontroverted Material Facts,
Defendant Lee states that “[p]laintiff failed to timely file IRR’s, grievances and grievance appeals
for the allegations he raises in his Complaint against Defendant Lee[,]” and that “[p]laintiff’s
claims against Defendant Lee have not been properly exhausted.” ECF No. 103-1, ¶¶ 7-8. These

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statements are supported by the affidavit of a PCC grievance officer, Robert Savage, who avers
that, upon review of the computerized files within the Offender Grievance System of offender
Justin Witte, the allegations against Jason Lee “have not been properly exhausted through the
grievance process” [ECF No. 103-2,¶¶ 4, 12].1 Furthermore, as noted in his Reply in Support of
his Motion for Summary Judgment [ECF No. 111], Defendant Lee also offers the affidavit of
Paul Johnson, a caseworker employed at PCC, who searched the database for IRRs filed on
behalf of Plaintiff [ECF No. 111-1, ¶¶ 2, 5]. In a sworn statement, affiant Johnson states that
Plaintiff “did not file any IRR’s in September 2011.” Id. at ¶ 7.
Plaintiff, although failing to address Defendant Lee’s Statement of Uncontroverted
Material Facts, in compliance with Local Rule 7-4.01(E), asserts in his Response to
Memorandum in Support of Defendant’s Motion for Summary Judgment, that he exhausted his
administrative remedies “after he filed an IRR the very same day as the incident” [ECF No. 109].
Plaintiff states that Thomas Collins, PCC’s caseworker, received his IRR the next morning in the
mail. Id. Plaintiff then cites to Miller v. Norris, 247 F.3d 736, 738 (8th Cir. 2001), for the
proposition that when a prisoner is prevented from utilizing an administrative remedy, it is not
available under the PLRA. Id. (emphasis added).2 Plaintiff appears to argue that PCC’s staff’s
alleged refusal to answer or file his grievances has prevented Plaintiff from utilizing

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In the same Affidavit, affiant Savage states that Plaintiff did not file a timely IRR against
Officer Lee concerning the events of September 11, 2011 [ECF No. 103-2, ¶ 12]. The Court
notes that Plaintiff identified September 19, 2011, not September 11, 2011, as the date of the
alleged incident giving rise to the allegations, and that this date was undisputed by Defendant
Lee. As such, affiant appears to have referenced September 11 in error.
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“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
(emphasis added).
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administrative remedies, making them unavailable [ECF No. 110]. Specifically, Plaintiff states
that caseworker Collins did not reply to his September 19, 2011 IRR allegedy filed against
Defendant Lee [ECF No. 109]. In Plaintiff’s Sur-Reply, he further asserts that caseworker
Collins has had multiple strokes and sick leaves, which resulted in him losing or abandoning
Plaintiff’s paperwork [ECF No. 112].
The Court, as a threshold issue, will consider Defendant Lee’s argument that Plaintiff’s
failure to follow local rules, and specifically contravert Defendant’s Statement of Uncontroverted
Material Facts, results in those statements being deemed admitted [ECF No. 111]. In compliance
with E.D. Mo. 7 - 4.01(E), Defendant Lee filed a Statement of Uncontroverted Material Facts
[ECF No. 103-2] in support of his Motion for Summary Judgment. Plaintiff does not make
reference to the facts set forth by Defendant Lee in his Statement of Uncontroverted Material
Facts, nor does he note the paragraph number from Defendant’s listing, as required by this
Court’s Local Rules. Because Plaintiff fails to controvert the matters set forth by Defendant Lee,
the assertions are deemed admitted.3 See Jones v. United Parcel Serv., Inc. 461 F.3d 982, 991
(8th Cir. 2006) (concluding that the district court did not abuse its discretion in deeming
defendants’ statements admitted, as plaintiffs’ statement of controverted facts and response to
defendants’ uncontroverted facts violated local rules). As Defendant Lee set forth that Plaintiff
“failed to timely file IRR’s, grievances and grievance appeals for the allegations . . . against
Defendant Lee[,]” and Plaintiff’s “claims against Defendant Lee have not been properly
exhausted” [ECF No. 103-1, ¶¶ 7-8], deeming these statements admitted would warrant summary
judgment for failure to exhaust administrative remedies.

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All matters set forth in the statement of the movant shall be deemed admitted for
purposes of summary judgment unless specifically controverted by the opposing party. E.D. Mo.
7 - 4.01(E).
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Even if the uncontroverted facts of Defendant Lee were not deemed admitted, this Court
would still find the absence of a genuine issue of material fact as to whether plaintiff exhausted
the administrative grievance process as required under the PLRA. Defendant Lee offers sworn
affidavits attesting that Plaintiff did not file IRRs in September, 2011 as alleged, nor did Plaintiff
exhaust the grievance process. In response to these affidavits, Plaintiff simply re-iterates that he
filed an IRR on the day of the incident, September 19, 2011. However, this is insufficient as
Plaintiff does not offer any evidence beyond his unsworn assertions. See Conolly v. Clark, 457
F.3d 872, 876 (8th Cir. 2006) (internal citation omitted) (“ [A] properly supported motion for
summary judgment is not defeated by self-serving affidavits.”); Davidson & Assocs. v. Jung, 422
F.3d 630, 638 (8th Cir. 2005) (“A plaintiff may not merely point to unsupported self-serving
allegations, but must substantiate allegations with sufficient probative evidence that would
permit a finding in the plaintiff's favor.”). Further, the Court notes that even if Plaintiff filed a
timely IRR, Plaintiff does not allege that he filed a timely grievance, or grievance appeal, which
are part of the grievance process as outlined in the Department Manual, and must also be
exhausted.
Plaintiff argues that he was excused from the exhaustion required under the PLRA , as he
was prevented from exhausting his administrative remedies when his caseworker, Thomas
Collins, did not file or respond to his IRR against Defendant Lee. Defendant Lee contends that
Plaintiff does not offer any evidence creating a genuine issue of material fact as to whether he
was prevented from exhausting his remedies. Within the Eighth Circuit, inmates are only
excused from complying with an institution's grievance procedures when (1) prison officials have
prevented them from utilizing prison grievance procedures; or (2) when officials themselves have
failed to comply with the procedures. Wewerka v. Roper, No. 4:09CV1973CDP, 2010 WL

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4628093, at * 5 (E.D. Mo. Nov. 8, 2010) (citing Gibson v. Weber, 431 F.3d 339, 341 (8th Cir.
2005). “A plaintiff must present some evidence, other than mere conclusory statements to
demonstrate that he was precluded from fully exhausting his administrative remedies.” Hahn v.
Armstrong, No. 1:08CV169 LMB, 2010 WL 575748, at * 4 (E.D. Mo. Feb. 11, 2010) (citing
Gibson, 431 F.3d at 341); Wewerka, 2010 WL 4628093 at * 5. Here, Plaintiff argues that his
caseworker, due to illness, lost or abandoned paperwork [ECF No. 112]. However, Plaintiff does
not support this conclusory assertion with any evidence, and Plaintiff’s pleadings before the
Court, belie his claims. In his Complaint, Plaintiff asserts that he took all steps in the grievance
process, and exhausted all his claims. Furthermore, when asked in the Complaint to explain why
he hadn’t used the grievance system, (if he failed to use it in relation to the issue at hand), he
responded “N/A.” Thus, in the absence of any supporting probative evidence, and in light of
Plaintiff’s contradiction to his own Complaint, the Court concludes that Plaintiff has not created
a genuine issue of material fact as to whether he was precluded from exhausting his
administrative remedies. Because no genuine issue of disputed material fact exists regarding
whether Plaintiff exhausted before his administrative remedies against Defendant Lee, Plaintiff’s
claims against Defendant Lee will be dismissed pursuant to 42 U.S.C. § 1997e(a).
Accordingly,
IT IS HEREBY ORDERED that Defendant Jason Lee’s Motion for Summary Judgment
is GRANTED.

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IT IS FURTHER ORDERED that Plaintiff’s claims against Defendant Jason Lee are
DISMISSED with prejudice pursuant to 42 U.S.C. § 1997e(a).
Dated this

21st

day of February, 2013.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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