Smith v. Diagnostics and Evaluation Center et al

Filing 33

MEMORANDUM AND ORDER - The defendants' motions to dismiss (Filing No. 17 ) is denied. The defendants' motion for summary judgment (Filing No. 21 ) is denied as premature, without prejudice to refiling at a later date. The plaintiff&# 039;s motion to file an objection to summary judgment (Filing No. 26 ), the defendants' objection to the plaintiff's response (Filing No. 27 ), and the plaintiff's objection to the defendants' objection (Filing No. 28 ) are d enied as moot. The plaintiff's motion for summary judgment and other relief (Filing No. 32 ) is denied. The matter is referred to the magistrate judge for case progression. Ordered by Judge Joseph F. Bataillon. (Copy mailed to pro se party)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DAVID SMITH,
Plaintiff,

4:13CV3041

v.
MEMORANDUM AND ORDER
SARGENT TURNER and CORPORAL
BELL, in their Individual capacities;
Defendants.

This matter is before the court on the defendants’ motions to dismiss and for
summary judgment, Filing No. 17 and Filing No. 21; the plaintiff’s motion to file an
objection to summary judgment, Filing No. 26; the defendants’ objection to the plaintiff’s
response, Filing No. 27; the plaintiff’s objection to the defendants’ objection, Filing No.
28; and plaintiff’s “Motion for Summary Judgement, and to Strike Defendant’s from
Complaint; and a Motion to Continue Trial as Ordered by Courts Motion,” Filing No. 32.
This is a pro se action for violation of civil right under 42 U.S.C. § 1983.
In his original and amended pro se complaints, the plaintiff, an inmate at the
Diagnostics and Evaluation Center of the Nebraska Department of Corrections, alleges
the defendants were deliberately indifferent to his security and safety needs, in violation
of the Eighth Amendment. Filing No. 1, Complaint; Filing No. 8, Amended Complaint.
The plaintiff alleges that on several occasions in June 2012, he was forced to eat in the
day room with one inch of fecal matter and sewage water on the floor and then ordered
“bucket up sewage water and solid waste” with only gloves to protect him from the
waste. Filing No. 1, Complaint at 4-5. He alleges that that defendants Turner and Bell
disregarded a known risk of harm to the plaintiff and caused him to face “[p]ossible

contraction of H.I.V. and Hepititus [sic].” Id. at 5. He seeks monetary damages and
injunctive relief.

He further alleges that he has presented the facts related to his

complaint to the administrative or grievance procedure by submitting a complaint to the
ombudsman. Id.; Ex. 1.
The defendants move to dismiss and for summary judgment on the basis of
failure to exhaust administrative remedies. Filing No. 17, Motion to Dismiss; Filing No.
21, Motion for Summary Judgment. In support of their position, the defendants submit
evidence in the form of Department of Corrections grievance regulations and affidavits
of prison officials. See Filing No. 19, Index of Evid., Attachments 1-4; Filing No. 23,
Attachments 1-4. Prior to filing their motion for summary judgment, defendants moved
to stay progression of the case pending resolution of these motions. Filing No. 20. A
stay was granted. Filing No. 25, Order.
In

opposition

to

the

defendants’ motions,

the

plaintiff

submits some

documentation, but contends other documents are lost. Filings No. 27 and 28. He also
contends he is entitled to summary judgment in his favor. Filing No. 32.
I. LAW
Under the Federal Rules, a complaint must contain “a short and plain statement
of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The
rules require a “‘showing,’ rather than a blanket assertion, of entitlement to relief.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 556 n.3. (2007) (quoting Fed. R. Civ. P.
8(a)(2)). “Specific facts are not necessary; the statement need only ‘give the defendant
fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v.
Pardus, 551 U.S. 89, 93 (2007) (quoting Twombly, 550 U.S. at 555). In order to survive

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a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the plaintiff’s obligation to provide
the grounds for his entitlement to relief necessitates that the complaint contain “more
than labels and conclusions, and a formulaic recitation of the elements of a cause of
action will not do.” Twombly, 550 U.S. at 555.
“On the assumption that all the allegations in the complaint are true (even if
doubtful in fact),” the allegations in the complaint must “raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555-56. In other words, the complaint must
plead “enough facts to state a claim for relief that is plausible on its face.” Id. at 547. “A
claim has facial plausibility when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct
alleged.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (stating that the plausibility

standard does not require a probability, but asks for more than a sheer possibility that a
defendant has acted unlawfully.).
Determining whether a complaint states a plausible claim for relief is “a contextspecific task” that requires the court “to draw on its judicial experience and common
sense.” Id. at 679. A court considering a motion to dismiss may begin by identifying
pleadings that, because they are no more than conclusions, are not entitled to the
assumption of truth. Id. Although legal conclusions “can provide the framework of a
complaint, they must be supported by factual allegations.” Id. When there are wellpleaded factual allegations, a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief. Id.
The court must find “enough factual matter (taken as true) to suggest” that
“discovery will reveal evidence” of the elements of the claim. Twombly, 550 U.S. at 558,

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556; Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 347 (2005) (explaining that something
beyond a faint hope that the discovery process might lead eventually to some plausible
cause of action must be alleged). When the allegations in a complaint, however true,
could not raise a claim of entitlement to relief, the complaint should be dismissed for
failure to set a claim under Fed. R. Civ. P. 12(b)(6). Twombly, 550 U.S. at 558; Iqbal,
556 U.S. at 679.
When “matters outside the pleadings are presented to and not excluded by the
court, the motion shall be treated as one for summary judgment and disposed of as
provided in Rule 56 and all parties shall be given reasonable opportunity to present all
material made pertinent to such a motion by Rule 56.” Fed. R. Civ. P. 12(d); BJC
Health Sys. v. Colom. Cas. Co., 348 F.3d 685, 687 (8th Cir. 2003). When the district
court relies on the matters outside the pleading, a motion to dismiss will be converted
into one for summary judgment. Id.
Summary judgment is appropriate when, viewing the facts and inferences in the
light most favorable to the nonmoving party, “the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as to
any material fact and that the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(c). The plain language of Rule 56(c) mandates the entry of summary
judgment, after adequate time for discovery and upon motion, 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) (emphasis added).

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The Eighth Amendment prohibits the government from inflicting “cruel and
unusual punishments.” U.S. Const. amend. VIII. The Amendment requires that prison
officials “provide humane conditions of confinement,” specifically, “prison officials must
ensure that inmates receive adequate food, clothing, shelter, and medical care, and
must ‘take reasonable measures to guarantee the safety of the inmates.’” Farmer v.
Brennan, 511 U.S. 825, 832, (1994) (quotation omitted).

The Eighth Amendment

protects prisoners from deliberate indifference by prison officials as to conditions which
pose an unreasonable risk of damage to an inmate’s future health. Helling v. McKinney,
509 U.S. 25, 32-33 (1993) (an inmate may obtain injunctive relief under § 1983 based
on exposure to environmental tobacco smoke in the absence of a present physical
injury). “[I]nmates are entitled to reasonably adequate sanitation, personal hygiene, and
laundry privileges, particularly over a lengthy course of time.” Bealieau, 690 F.3d at
1045 (quoting Howard v. Adkison, 887 F.2d 134, 137 (8th Cir.1989)).
In order to establish an Eighth Amendment violation regarding conditions of
confinement, an inmate must establish: first, that he is incarcerated under conditions
posing a substantial risk of serious harm, and second, “deliberate indifference” to that
risk. See id. at 834; Beaulieau v. Ludeman, 690 F.3d 1017, 1045 (8th Cir. 2012). A
plaintiff must show: (1) that the conditions of their confinement posed a substantial risk
of serious harm (objective component), and (2) the defendants actually knew of, but
disregarded, or were deliberately indifferent to, the plaintiff’s health or safety (subjective
component). Beaulieau, 690 F.3d at 1045. “To establish a constitutional violation, it is
not enough that a reasonable official should have known of the risk, a plaintiff must
establish that the official in question did in fact know of the risk.” Gregoire v. Class, 236

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F.3d 413, 417 (8th Cir. 2000). “However, this knowledge is subject to proof by all the
usual ways, including inferences based on the obviousness of the risk.” Id. Although
“obviousness of the risk is not the ultimate inquiry, it may serve as circumstantial
evidence that the officials actually knew of the risk.” Coleman v. Parkman, 349 F.3d
534, 538 (8th Cir. 2003).
As amended by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a)
requires that inmates exhaust prison grievance procedures before bringing § 1983 suits
related to prison conditions. Burns v. Eaton, 752 F.3d 1136, 1141 (8th Cir. 2014). “[I]t
is the prison’s requirements, and not the PLRA, that define the boundaries of proper
exhaustion.”

Id. (quoting Jones v. Bock, 549 U.S. 199, 218 (2007)).

However,

“inmates cannot be held to exhaustion requirements when prison officials keep them
from pursuing their administrative remedies,” or when such remedies are unavailable to
the prisoner. See Miller v. Norris, 247 F.3d 736, 740 (8th Cir. 2001). Also the PLRA’s
exhaustion requirement is satisfied if prison officials decide a procedurally flawed
grievance on the merits. Hammett v. Cofield, 681 F.3d 945, 947 (8th Cir. 2012).
Failure to exhaust administrative remedies under the PLRA does not deprive
federal courts of subject matter jurisdiction, however. Foulk v. Charrier, 262 F.3d 687,
697 (8th Cir. 2001). Moreover, a lawsuit should not be dismissed in its entirety merely
because some claims are unexhausted. Leach v. Moore, 240 Fed. App’x 732, *733,
2007 WL 1881111, **1 (8th Cir. 2007); see Jones, 549 U.S. at 220-23 (rejecting totalexhaustion rule).
Administrative exhaustion is an affirmative defense that defendants have the
burden to plead and prove. See Jones v. Bock, 549 U.S. at 212; Nixon v. Sanders, 243

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Fed. App’x 197, *198, 2007 WL 2349344 (8th Cir. 2007). Inmates are not required to
specially plead or demonstrate exhaustion in their complaints. Jones, 549 U.S. at 216.
Further, the defense can be waived. Foulk v. Charrier, 262 F.3d 687, 697 (8th Cir.
2001).
II. DISCUSSION
The court will not address the defendants’ motion for summary judgment at this
time.

The defendants’ motion to stay discovery and case progression pending the

resolution of the motions has hampered the defendants’ ability to respond to the
defendants’ motion for summary judgment.

Accordingly, the motion will be denied

without prejudice to refiling. In light of this disposition, the parties’ various “objections”
will be denied as moot. The court finds the plaintiff’s motion for summary judgment is
largely unintelligible and unsupported. Accordingly, the plaintiff’s motion will also be
denied at this time.
The defendants’ motion to dismiss is based on failure to exhaust administrative
remedies. The plaintiff is not required to specially plead or demonstrate exhaustion in
his complaint. In considering a motion to dismiss, the court is obliged to accept the
plaintiff’s factual allegations as true.

The plaintiff alleges he exhausted his

administrative remedies. The court finds the allegations of the plaintiff’s complaint and
amended complaint adequately state a claim for deliberate indifference to serious health
or safety needs. Accordingly,
IT IS ORDERED:
1.

The defendants’ motions to dismiss (Filing No. 17) is denied.

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2.

The defendants’ motion for summary judgment (Filing No. 21) is denied as

premature, without prejudice to refiling at a later date.
3.

The plaintiff’s motion to file an objection to summary judgment (Filing No.

26), the defendants’ objection to the plaintiff’s response (Filing No. 27), and the
plaintiff’s objection to the defendants’ objection (Filing No. 28) are denied as moot.
4.

The plaintiff’s motion for summary judgment and other relief (Filing No. 32)

is denied.
5.

The matter is referred to the magistrate judge for case progression.

DATED this 27th day of August, 2014.
BY THE COURT:
s/ Joseph F. Bataillon
United States District Judge

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