Davlin v. Miller et al

Filing 27

MEMORANDUM OPINION- regarding the defendant's MOTION for Summary Judgment 23 . The Court finds that Davlin has failed to exhaust his NDCS administrative remedies prior to filing and this matter will be dismissed without prejudice. A separate order will be entered in accordance with this memorandum opinion. Ordered by Senior Judge Lyle E. Strom. (Copy mailed to pro se party)(MKR)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
CLIFFORD J. DAVLIN,

)
)
Plaintiff,
)
)
v.
)
)
TIM MILLER, Unit Manager,
)
Housing Unit # 3, Nebraska
)
State Penitentiary; and
)
O. PEREZ, Case Worker,
)
Housing Unit # 3, Nebraska
)
State Penitentiary, and in
)
their individual and official )
capacities,
)
)
Defendants.
)
______________________________)

8:11CV396

MEMORANDUM OPINION

This matter is before the Court on defendants’ Motion
for Summary Judgment (Filing No. 23).

As set forth below, the

motion will be granted.
I.

BACKGROUND

Plaintiff Clifford J. Davlin (“Davlin”) filed his
complaint in this matter on November 21, 2011 (Filing No. 1).
Davlin’s claims are brought pursuant to 42 U.S.C. § 1983 and,
liberally construed, allege that defendants violated his Eighth
Amendment right to receive medical care while incarcerated
because they confiscated his diabetic testing supplies and
medication (Filing No. 10 at CM/ECF pp. 2-3).

The Court

conducted a detailed initial review of Davlin’s complaint and
dismissed his official-capacity claims against defendants on
February 1, 2012.

(Id. at CM/ECF pp. 4-5.)

Defendants filed their Motion for Summary Judgment on
May 31, 2012 (Filing No. 23).

Along with their motion,

defendants filed a Brief in Support (Filing No. 24) and an Index
of Evidence (Filing No. 25).

Davlin did not file a response to

the Motion for Summary Judgment.

(See Docket Sheet.)

The party seeking the entry of summary judgment in its
favor must set forth “a separate statement of material facts
about which the moving party contends there is no genuine issue
to be tried and that entitles the moving party to judgment as a
matter of law.”

NECivR 56.1(a)(1).

If the non-moving party

opposes the motion, that party must “include in its [opposing]
brief a concise response to the moving party’s statement of
material facts.”

NECivR 56.1(b)(1).

Such response must “address

each numbered paragraph in the movant’s statement” of facts and
must contain pinpoint citations to evidence supporting the
opposition.

Id.

“Properly referenced material facts in the

movant’s statement are considered admitted unless controverted in
the opposing party’s response.”

Id.; see also Fed. R. Civ. P.

56(e) (“A supporting or opposing affidavit must be made on
personal knowledge, set out facts that would be admissible in
evidence, and show that the affiant is competent to testify on
the matters stated.”).

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Defendants have submitted a statement of material facts
in accordance with the Court’s Local Rules.

However, Davlin has

not submitted any “concise response” to those facts.

Defendants

submitted evidence which was properly authenticated by affidavit.
Davlin has not.

This matter is therefore deemed fully submitted

and the Court adopts the following relevant undisputed facts.
II.
1.

RELEVANT UNDISPUTED FACTS

Davlin is currently an inmate confined at the

Nebraska State Penitentiary (“NSP”) in Lincoln, Nebraska.

(See

Filing No. 1.)
2.

Defendants are employees of the Nebraska

Department of Correctional Services (“NDCS”), employed at the
NSP.

(Id.)
3.

At the NSP, inmate grievances are handled through

a three-step grievance procedure.

The grievance procedure is set

forth in the “Rules and Regulations Inmate Rulebook” which is
provided to each inmate upon his or her commitment to the NDCS
(Filing No. 25 at CM/ECF pp. 3, 5-6).
4.

The three-step grievance procedure has been

promulgated pursuant to the Nebraska Administrative Procedures
Act and has been certified by the United States Department of
Justice.

(Id. at CM/ECF pp. 3-4.)
5.

The NSP maintains a file of all grievances

submitted by an inmate during the inmate’s incarceration in the

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NDCS.

The Warden at NSP carefully reviewed Davlin’s inmate file

to determine whether he filed any grievances relating to this
matter.

(Id. at CM/ECF p. 4.)
6.

Davlin did not file any grievances relating to

either defendant, and did not file any grievances relating to any
NSP employee confiscating his diabetic testing supplies or
medication, the subject of Davlin’s Eighth Amendment claims.
(Id. at CM/ECF p. 4.)
III. ANALYSIS
A.

Standard of Review
Summary judgment should be granted only “if 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. Pro. 56(c).

See also Egan v. Wells

Fargo Alarm Servs., 23 F.3d 1444, 1446 (8th Cir. 1994).

It is

not the Court’s function to weigh evidence in the summary
judgment record to determine the truth of any factual issue.
Bell v. Conopco, Inc., 186 F.3d 1099, 1101 (8th Cir. 1999).

In

passing upon a motion for summary judgment, the district court
must view the facts in the light most favorable to the party
opposing the motion.

Dancy v. Hyster Co., 127 F.3d 649, 652 (8th

Cir. 1997).

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In order to withstand a motion for summary judgment,
the nonmoving party must substantiate the allegations with
“‘sufficient probative evidence [that] would permit a finding in
[their] favor on more than mere speculation, conjecture, or
fantasy.’”

Moody v. St. Charles County, 23 F.3d 1410, 1412 (8th

Cir. 1994) (quoting Gregory v. City of Rogers, 974 F.2d 1006,
1010 (8th Cir. 1992)).

“A mere scintilla of evidence is

insufficient to avoid summary judgment.”

Id.

Essentially the

test is “whether the evidence presents a sufficient disagreement
to require submission to a jury or whether it is so one-sided
that one party must prevail as a matter of law.”

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
B.

Defendants’ Motion for Summary Judgment
Defendants argue that they are entitled to summary

judgment because Davlin failed to exhaust his administrative
remedies before filing suit (Filing No. 24).

The Court agrees.

As set forth in the Prison Litigation Reform Act:
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).

This exhaustion requirement is a mandatory

prerequisite to filing suit under 42 U.S.C. § 1983 or any other
federal law.

Porter v. Nussle, 534 U.S. 516, 524 (2002); see
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also Jones v. Bock, 549 U.S. 199, 211-12 (2007) (citing Porter
and reiterating that “unexhausted claims cannot be brought in
court”).

To be clear, exhaustion must occur prior to filing suit

in federal court and may not occur during the pendency of a
federal lawsuit.
2003).

Johnson v. Jones, 340 F.3d 624, 627 (8th Cir.

As set forth in Johnson:
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.

Id.
Davlin filed his complaint on November 21, 2011
(Filing No. 1).

As set forth above, the NDCS has a three-step

grievance process for inmates to exhaust their administrative
remedies.

Thus, in order to properly exhaust his administrative

remedies, Davlin must have engaged in all three steps of this
grievance process prior to filing his Complaint on November 21,
2011.

The undisputed evidence before the Court shows that Davlin

has never filed any grievance relating to defendants or relating
to the confiscation of his diabetic testing supplies and
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medication (Filing No. 25 at CME/CF p. 4).

These issues are the

basis of Davlin’s Eighth Amendment claim (Filing No. 1).

Davlin

did not file any response to the Motion for Summary Judgment, and
therefore does not claim that he complied with the three-step
grievance process.

(See Docket Sheet.)

Thus, the Court finds

that Davlin has failed to exhaust his NDCS administrative
remedies prior to filing and this matter will be dismissed
without prejudice.

A separate order will be entered in

accordance with this memorandum opinion.
DATED this 11th day of September, 2012.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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