Cook v. Lombardi et al

Filing 53

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the motion of defendants Unknown Harper, Gregory Dunn, and Christopher Walker to dismiss or for summary judgment [Doc. #26] is granted. Judgment will be entered in favor of these defendants at the conclusion of this case. Signed by District Judge Carol E. Jackson on 6/1/2015. (KMS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JASON JERICHO COOK,
Plaintiff,
v.
GEORGE LOMBARDI, et al.,
Defendants.

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No. 4:14-CV-1695-CEJ

MEMORANDUM AND ORDER
In this prisoner civil rights case, defendants Unknown Harper, Gregory Dunn,
and Christopher Walker move to dismiss plaintiff’s claims against them pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure.

Alternatively, the

defendants move for summary judgment pursuant to Rule 56 of the Federal Rules of
Civil Procedure [Doc. #26]. Defendants argue that plaintiff failed to properly
exhaust available administrative remedies under the Prison Litigation Reform Act,
42 U.S.C. § 1997e(a), prior to filing this action. Plaintiff has submitted two
responses to the motion, to which defendants have filed a reply.
I. Legal Standard
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary
judgment shall be entered “if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” In ruling on a motion for summary judgment, the
court is required to view the facts in the light most favorable to the non-moving party
and must give that party the benefit of all reasonable inferences to be drawn from the
underlying facts. AgriStor Leasing v. Farrow, 826 F.2d 732, 734 (8th Cir. 1987).
The moving party bears the burden of showing both the absence of a genuine issue
of material fact and his entitlement to judgment as a matter of law. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242 (1986); Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586-87 (1986); Fed. R. Civ. P. 56(c).
Once the moving party has met his burden, the non-moving party may not rest
on the allegations of his pleadings but must set forth specific facts, by affidavit or
other evidence, showing that a genuine issue of material fact exists. Fed. R. Civ. P.
56(e); Anderson, 477 U.S. at 257; City of Mt. Pleasant, Iowa v. Associated Elec.
Co-op., Inc., 838 F.2d 268, 273-74 (8th Cir. 1988). Rule 56(c) “mandates the entry
of summary judgment . . . against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which that
party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986).
II. Background
Plaintiff, an inmate at the Potosi Correctional Center (PCC), filed this action
under 42 U.S.C. ' 1983 against numerous employees of the Missouri Department of
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Corrections and Corizon Health, Inc. Plaintiff alleges, inter alia, that defendants
Timothy Bertelsmeyer, Clive Hendricks, and Donald Walcott used excessive force
against him, following an altercation with Bertelsmeyer at PCC on February 7, 2014.
According to plaintiff, Bertelsmeyer made a disrespectful comment to him, plaintiff
responded by spitting on Bertelsmeyer, and Bertelsmeyer then assaulted plaintiff.
Plaintiff stated that he did not resist being restrained, but was nonetheless slammed
on the ground, twisted around painfully, and punched repeatedly in the face. As a
result, he sustained physical injuries including a split lip, a bruised and bloodied
nose, face swelling, chipped teeth, a crack in his forehead, and a separated shoulder.
Plaintiff further alleges in the complaint that defendant Walker was
stationed in “the bubble” during the altercation. In an undated letter addressed to
Missouri Department of Corrections officials which plaintiff attached to the
complaint, plaintiff wrot that after Bertelsmeyer slammed his face to the floor,
“COII Walker . . . left the bubble and came out to the sally port. He had them help
me onto the bench . . . He had someone loosen the cuffs . . . He asked me what was
going on” [Doc. #1-1, p.4]. Plaintiff states that he told Walker about Bertelsmeyer
making disrespectful comments to him, and Walker replied “that he wished [he]
would have said something to him because then he could [have] disciplined him.
He said that Bertelsmeyer was in the wrong but now that [plaintiff] had spit on him
there was nothing he could do.” Id. Plaintiff states, “They then left me alone and
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came back with Nurse Sami Pratt.” Id. Plaintiff further alleged that, after Nurse
Pratt conducted a medical examination, defendant Christopher Walker, with
approval from defendants Unknown Harper and Gregory Dunn, directed other
officers to strip plaintiff to his underwear and leave him to sleep on a cold concrete
slab with no linens. Also attached to the complaint are the affidavits of four
inmates, attesting to the actions of defendants Bertelsmeyer, Hendricks, and
Walcott.
Pursuant to 42 U.S.C. ' 1997e(g)(2), the court may require any defendant to
reply to a complaint brought by a prisoner pursuant to 42 U.S.C. ' 1983 if it finds
that the plaintiff has a reasonable opportunity to prevail on the merits. Moreover,
28 U.S.C. ' 1915A requires the Court to identify any cognizable claims that would
survive dismissal. In a Memorandum and Order entered on October 24, 2014, the
court identified two cognizable claims that survived frivolity review under § 1915A,
to wit: (1) an excessive use of force claim based on the assault allegations and (2) a
conditions of confinement claim based on the allegation that plaintiff was forced to
sleep on a cold concrete slab without clothing or linens. As such, process was
issued as to defendants Bertelsmeyer, Hendricks, Walcott, Walker, Harper, and
Dunn. The court dismissed all remaining claims and defendants.
III. Summary Judgment

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Defendants Walker, Harper, and Dunn argue that plaintiff failed to exhaust
his administrative remedies, as required by the PLRA, relative to his conditions of
confinement claim based on the allegation that he was stripped and forced to sleep in
the cold.

Plaintiff alleges in the complaint that he filed IRR #PCC-14-211

following the February 7 events, “discussing problems related to custody staff”
[Doc. #1, p. 15].1 Defendants have attached a copy of the IRR as an exhibit to the
instant motion [Doc. #27-1, pp. 2-5], as well as an affidavit from Robert Savage
(Case Manager II) stating that, after reviewing PCC prison records, the files “reflect
NO findings of IRRs or grievances filed . . . alleging cruel and unusual punishment
by being stripped to boxer shorts with no access to clothing, hygiene, linens, or
mattress on February 7, 2014 or any other date in 2014.” [Doc. #27-2].
Plaintiff’s IRR #PCC-14-211 states, “Complaint – One Issue – Be Specific:
excessive use of force.” In attached pages to the IRR, plaintiff describes the events
leading up to the altercation with Bertelsmeyer and the subsequent assault. The
IRR does not mention defendants Harper or Dunn, nor does it contain any allegation
that plaintiff was stripped and left to sleep on a concrete floor.
In support of their motion for summary judgment, defendants argue that
plaintiff was required to specifically present his grievances against them through the
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Plaintiff also filed a separate IRR #PCC-14-263 relative to his medical claims;
however, this document is not at issue with respect to defendants’ motion for
summary judgment.
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administrative grievance process at PCC, but failed to do so. Defendants further
state:
The actions plaintiff alleges in the complaint against defendants
Harper, Dunn, and Walker, that he was stripped to boxers and left with
no clothing, linens, or mattress, are not part of the use of force incident,
do not involve use of force, and are not mentioned in plaintiff’s IRR
PCC 14-211.
[Doc. #27, p. 6].
In opposition to defendants’ motion, plaintiff contends that he sufficiently
alleged in the complaint that Walker, with the approval of Harper and Dunn, directed
other officers to strip plaintiff to his underwear and leave him to sleep with no
clothing or linens on a cold concrete slab. Plaintiff asserts that in his IRR, “he did
not go into detail of every little thing that happened knowing it would not make a
difference” [Doc. #32, p. 1]. Relying on Wilson v. Seiter, 501 U.S. 294, 304-05
(1991), he claims that the actions of Walker, Harper, and Dunn were actually “a
continuation of the use of force” that had previously taken place at PCC, and thus, he
was not required to specifically grieve this issue at the prison.
In their reply brief, defendants argue that not only was plaintiff required to
grieve this issue, but he should have filed a separate grievance to do so, as only one
issue may be grieved in an IRR. Defendants assert that because plaintiff never
grieved the conditions of confinement claim, he cannot show that he exhausted his
administrative remedies on his claims against them, and thus, summary judgment
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should be granted. Defendants distinguish Wilson, asserting that it involved an
Eighth Amendment violation where some conditions of confinement, when
considered together, were found to meet the standard when each would not do so
alone [Doc. #45, p. 3].
IV. Discussion
Pursuant to 42 U.S.C. ' 1997e(a), a prisoner may not bring an action under
' 1983 Auntil such administrative remedies as are available are exhausted.@ AAn
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 first instance.@ Reed-Bey v. Pramstaller,
603 F.3d 322, 324 (6th Cir. 2010) (quoting Woodford v. Ngo, 548 U.S. 81, 95
(2006)).
For inmates confined in the Missouri Department of Corrections, the
administrative grievance process is initiated by filing an IRR within fifteen calendar
days of the alleged incident.

The IRR complaint form instructions state,

“Complaint – One Issue – Be Specific.” In response, plaintiff wrote “excessive use
of force” [Doc. #27-1]. Under “Action Requested,” plaintiff wrote, “I fear for my
safety as long as this officer [Bertelsmeyer] has this authority as a correctional
officer to abuse. I would like him to be restraint [sic] upon contact with me and to
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be stripped of the authority he abuses.” Attached to the IRR are three handwritten
pages in which plaintiff stated that he received a conduct violation for spitting in
Bertelsmeyer’s face.

He detailed how Bertelsmeyer, Hendricks, and Walcott

exercised excessive use of force against him, and he noted his resulting injuries. At
the very end of the document, plaintiff stated:
Note: I would like to request the cameras from the sally
port and from B wing . . . this will show that all of my
claims are accurate and it will show COII Walker
watching all of this then stepping in front of the camera to
block Nurse Sami Pratt. Alleged examination. Which
was just a show. By COII Walker’s actions he had
committed a failure to protect as well as Sami Pratt, COI’s
Walcott and Hendricks.
Defendants Harper and Dunn are not mentioned in the IRR, nor is there any
reference to plaintiff being stripped to his underwear and left with no clothing,
linens, or mattress. In addition, the court finds no indication in the complaint that
these events involved the use of force.
The court further finds that plaintiff’s reliance on Wilson, is misplaced.
Wilson did not involve a plaintiff who had filed an IRR alleging a constitutional
violation in combination with other alleged violations; the issue did not involve
proper exhaustion of prison grievances. Rather, the case concerned whether a
prisoner claiming that conditions of confinement constitute cruel and unusual
punishment must show a culpable state of mind on the part of prison officials, and, if
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so, what state of mind is required. Wilson, 501 U.S. at 296. In addressing whether
conditions of confinement may establish an Eighth Amendment violation, the
Supreme Court stated, “Some conditions of confinement may establish an Eighth
Amendment violation ‘in combination’ when each would not do so alone, but only
when they have a mutually enforcing effect that produces the deprivation of a single,
identifiable human need such as food, warmth, or exercise—for example, a low cell
temperature at night combined with a failure to issue blankets.” Id. at 304. In the
instant action, however, the issue is whether plaintiff’s claims of excessive use of
force and subsequently being stripped and forced to sleep in the cold without
clothing or linens constitute distinct and separate incidents that plaintiff should have
submitted to the grievance system at PCC. The court finds that these events are
distinct and should have been grieved at PCC in order to permit prison officials to
review the matter and, if necessary, to take corrective measures. Because plaintiff
failed to grieve his conditions of confinement claim, he failed to satisfy the
exhaustion prerequisite as to that claim. Therefore, defendants Walker, Harper, and
Dunn are entitled to judgment as a matter of law.
Accordingly,
IT IS HEREBY ORDERED that the motion of defendants Unknown
Harper, Gregory Dunn, and Christopher Walker to dismiss or for summary judgment
[Doc. #26] is granted.
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Judgment will be entered in favor of these defendants at the conclusion of this
case.
Dated this 1st day of June, 2015.

CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE

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