Irving v. Culton et al
MEMORANDUM AND ORDER IT IS HEREBY ORDERED that defendant Heather Cofers Motion for Summary Judgment (Doc. #110) is granted in part and denied in part in accordance with the findings set out in this Memorandum and Order. IT IS FURTHER ORDERED that pla intiffs claim that defendant Heather Cofer retaliated against him at the January 4, 2012, due process hearing is dismissed without prejudice. re: 110 MOTION for Summary Judgment filed by Defendant Heather Cofer. Signed by Magistrate Judge Frederick R. Buckles on 11/21/13. (JWJ)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
WILLIAM E. IRVING,
KEVIN CULTON, et al.,
MEMORANDUM AND ORDER
Presently pending before the Court is defendant Heather
Cofer’s Motion for Summary Judgment (Doc. #110).
All matters are
pending before the undersigned United States Magistrate Judge, with
consent of the parties, pursuant to 28 U.S.C. § 636(c).
On February 1, 2012, plaintiff William E. Irving filed
the instant prisoner civil rights action pursuant to 42 U.S.C. §
conducted a due process hearing on January 4, 2012, in relation to
a grievance filed by plaintiff regarding a December 1, 2011,
Plaintiff alleges that during said hearing, Cofer
chastised him for filing grievances and advised plaintiff not to
file any more of them.
Plaintiff alleges that Cofer then ordered
plaintiff to continued assignment in administrative segregation
(ad. seg.) for an additional ninety days.
alleges that on the day following the hearing, plaintiff was
sprayed with pepper spray in his cell after which he was sent to
ad. seg. whereupon defendant Cofer ordered that all of plaintiff’s
clothing and property be removed.
Plaintiff contends that he
remained on this limited property/strip cell status from January 5
through January 9, 2012.
In his Amended Complaint filed August 1,
2012, plaintiff makes these same allegations against defendant
On July 24, 2013, defendant Cofer filed the instant
Motion for Summary Judgment arguing that plaintiff failed to
properly exhaust his administrative remedies with respect to his
claim that she allegedly retaliated against him at the January 4,
2012, hearing by giving him additional ad. seg. time.
Memorandum and Order entered September 24, 2013, the Court noted
that plaintiff had not filed any memorandum in opposition to
defendant Cofer’s motion and granted plaintiff until October 15,
2013, by which to do so.
(See Doc. #112.)
To date, plaintiff has
not responded to defendant Cofer’s Motion for Summary Judgment.
The Court now proceeds to take up and rule the motion.
“The court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material fact, and
the movant is entitled to judgment as a matter of law.”
Civ. P. 56(a).
This is a “threshold inquiry of . . . whether there
is a need for trial — whether, in other words, there are genuine
factual issues that properly can be resolved only by a finder of
fact because they may reasonably be resolved in favor of either
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986);
see also Agristor Leasing v. Farrow, 826 F.2d 732 (8th Cir. 1987).
A fact is material only when its resolution affects the outcome of
Anderson, 477 U.S. at 248.
A dispute is genuine if the
evidence is such that it could cause a reasonable jury to return a
verdict for either party.
Id. at 252.
The Court must view the evidence and the inferences
reasonably drawn from the evidence in the light most favorable to
the nonmoving party.
Enterprise Bank v. Magna Bank, 92 F.3d 743,
747 (8th Cir. 1996).
The moving party bears the burden of showing
that there is no genuine issue of material fact and that it is
entitled to judgment as a matter of law.
The nonmoving party
must then demonstrate the existence of specific facts in the record
that create a genuine issue for trial.
Krenik v. County of Le
Sueur, 47 F.3d 953, 957 (8th Cir. 1995).
A party opposing a
properly supported Motion for Summary Judgment may not rest upon
mere allegations or denials, but must set forth specific facts
showing that there is a genuine issue for trial.
U.S. at 256; Fed. R. Civ. P. 56(e).
Where the nonmoving party “fails to properly address
another party’s assertion of fact as required by Rule 56(c), the
court may . . . consider the fact undisputed for purposes of the
motion . . . [or] grant summary judgment if the motion and
supporting materials – including the facts considered undisputed –
show that the movant is entitled to it . . . .”
Fed. R. Civ. P.
Under 42 U.S.C. § 1997e(a), a prisoner may not bring an
action under § 1983 “until such administrative remedies as are
available are exhausted.”
“An inmate exhausts a claim by taking
advantage of each step the prison holds out for resolving the claim
internally and by following the ‘critical procedural rules’ of the
prison’s grievance process to permit prison officials to review
and, if necessary, correct the grievance ‘on the merits’ in the
Reed-Bey v. Pramstaller, 603 F.3d 322, 324 (6th
Cir. 2010) (quoting Woodford v. Ngo, 548 U.S. 81, 95 (2006)).
Under the plain language of section 1997e(a),
an inmate must exhaust administrative remedies
before filing suit in federal court. Thus, in
considering motions to dismiss for failure to
exhaust under section 1997e(a), the district
court must look to the time of filing, not the
time the district court is rendering its
decision, to determine if exhaustion has
occurred. If exhaustion was not completed at
the time of filing, dismissal is mandatory.
Johnson v. Jones, 340 F.3d 624, 627 (8th Cir. 2003) (emphasis in
In the instant Motion for Summary Judgment, defendant
Cofer contends that plaintiff failed to bring a proper grievance on
his claim that Cofer retaliated against him at the January 4, 2012,
Defendant’s motion is supported by the affidavit of
defendant Cofer filed a Statement of Uncontroverted Material Facts,
which includes citations to the Savage Affidavit or the record in
support of those facts.
As noted above, plaintiff has failed to
respond to defendant Cofer’s Motion for Summary Judgment and thus
has failed to controvert Cofer’s supported factual averments.
Accordingly, the undersigned will accept as true defendant Cofer’s
Statement of Uncontroverted Material Facts.
Fed. R. Civ. P.
56(e)(2); E.D. Mo. L.R. 4.01(E).
The facts as demonstrated by defendant Cofer show that
the Missouri Department of Corrections and its institutions provide
an administrative grievance process for inmates.
To initiate the
grievance process, an inmate must file an Informal Resolution
Request (IRR) within fifteen days from the date of the alleged
If an inmate is dissatisfied with the response to his
IRR and wishes to pursue his complaint further, he must file an
offender grievance within seven days of receiving a response to his
If an inmate is dissatisfied with the response to his
grievance, he must file an appeal within seven days of receiving
the adverse response to his grievance.
Only after the offender
grievance appeal is filed and the offender receives a response is
the Department’s administrative grievance procedure exhausted.
PCC’s Offender Grievance System shows plaintiff not to
have filed any complaint with respect to the hearing conducted on
January 4, 2012, at which plaintiff claims defendant Cofer ordered
plaintiff confined to ad. seg. and instructed plaintiff to file no
administrative remedies with respect to his claim that defendant
Cofer violated his constitutional rights at the hearing held on
January 4, 2012.
This claim should therefore be dismissed without
Sergent v. Norris, 330 F.3d 1084, 1086 (8th Cir. 2003).
The record is silent, however, as to whether plaintiff
invoked and/or completed the grievance process in relation to his
claim that defendant Cofer ordered him confined to ad. seg. on
January 5, 2012, without property or clothing after being sprayed
with pepper spray.
Nor does defendant Cofer provide any argument
or evidence demonstrating that she is entitled to summary judgment
on this claim.
As such, it cannot be said that defendant Cofer has
established her right to judgment on this claim with such clarity
as to leave room for no controversy and that plaintiff is not
Vette Co. v. Aetna Cas. & Sur. Co., 612 F.2d 1076,
1077 (8th Cir. 1980).
Therefore, defendant’s Motion for Summary
Judgment should be denied as to plaintiff’s claim arising out of
defendant Cofer’s January 5, 2012, order that he be confined to ad.
seg. without property or clothing after being sprayed with pepper
Accordingly, for all of the foregoing reasons,
IT IS HEREBY ORDERED that defendant Heather Cofer’s
Motion for Summary Judgment (Doc. #110) is granted in part and
denied in part in accordance with the findings set out in this
Memorandum and Order.
defendant Heather Cofer retaliated against him at the January 4,
2012, due process hearing is dismissed without prejudice.
UNITED STATES MAGISTRATE JUDGE
day of November, 2013.
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