Clark v. Patton et al

Filing 49

OPINION AND ORDER by Judge Ronald A. White : Defendant Justin Franklin is DISMISSED WITHOUT PREJUDICE for Plaintiff's failure to serve him in accordance with Fed. R. Civ. P. 4(m). Defendants Tim Wilkinson, Damon Hininger, Officer Rankins, and Officer Gentry's motion for summary judgment 47 is GRANTED, and this action is DISMISSED in its entirety. (acg, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
MARQUIS J. CLARK,
Plaintiff,
v.

No. CIV 16-046-RAW-SPS

TIM WILKINSON, et al.,
Defendants.
OPINION AND ORDER
This action is before the Court on Plaintiff=s civil rights complaint (Dkt. 1) and
Defendants= motion for summary judgment (Dkt. 47). Plaintiff is a pro se prisoner in the
custody of the Oklahoma Department of Corrections (DOC) who is incarcerated at
Oklahoma State Penitentiary in McAlester, Oklahoma. He brings this action under the
authority of 42 U.S.C. ' 1983, seeking relief for alleged constitutional violations during
his incarceration at Davis Correctional Facility (DCF), a private prison in Holdenville,
Oklahoma.

The remaining defendants are Tim Wilkinson, DCF Warden; Damon

Hininger, Corrections Corporation of America President; Officer Rankins, DCF Unit
Manager; Officer Gentry, DCF Chief of Security; and Justin Franklin, DCF Recreational
Team Member.1

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Defendant DOC Director Robert Patton was dismissed from this action on May 10, 2016
(Dkt. 27).

Standard of Review
Defendants Tim Wilkinson, Damon Hininger, Officer Rankins, and Officer Gentry
have filed a motion for summary judgment. Summary judgment is appropriate when
Athere is no genuine dispute as to any material fact and the movant is entitled to a judgment
as a matter of law.@ Fed. R. Civ. P. 56(a). A dispute is genuine if the evidence is such
that Aa reasonable jury could return a verdict for the nonmoving party.@ Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material if it Amight affect the
outcome of the suit under the governing law.@ Id. In making this determination, A[t]he
evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn
in his favor.@ Id. at 255. A party opposing a motion for summary judgment, however,
may not simply allege there are disputed issues of fact; rather, the party must support its
assertions by citing to the record or by showing the moving party cannot produce
admissible evidence to support the fact. Fed. R. Civ. P. 56(c). Thus, the inquiry for this
Court is Awhether 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, 477 U.S. at 251-52.
Plaintiff=s Allegations
Plaintiff alleges the defendants violated his rights under the Eighth Amendment.
He claims he was employed in the DCF maximum security unit as a pod orderly from July
2014 to June 5, 2015. On June 5, 2015, he was performing his official orderly duties when
a maximum security inmate under official escort assaulted him. A single correctional
officer had attempted to transport Plaintiff=s attacker from the recreational yard to the

inmate=s cell, when the inmate broke free of his restraints, obtained a weapon, and stabbed
Plaintiff multiple times. According to Plaintiff, no correctional personnel attempted to
intervene to prevent his injuries. The attacker then voluntarily secured himself in his own
cell, while the escorting guard left the scene.
Plaintiff asserts the applicable policy requires that two correctional officers be
present when a maximum security prisoner is escorted from a cell. In addition, maximum
security prisoners are supposed to be searched when escorted from a cell, and medium
security prisoners should not be present when a maximum security prisoner is being
escorted. (Dkt. 1 at 5).
Plaintiff further alleges that after the incident, he was taken to the DCF medical
satellite where he received nine stitches to close two knife wounds. He complains he since
has suffered from recurring dreams, insomnia, paranoia, depression, loss of appetite, and
loss of drive. He requires medication for his symptoms. Id.
Defendant Justin Franklin
The record shows that after numerous attempts by the United States Marshals
Service, Defendant Justin Franklin was not served in accordance with Fed. R. Civ. P. 4(m).
(Dkts. 15, 38, 40, 42, 44). Therefore, Defendant Franklin is dismissed without prejudice
from this action.
Failure to Exhaust Administrative Remedies
Defendants allege, among other things, that Plaintiff has failed to exhaust the
administrative remedies for any of his claims. ANo action shall be brought with respect to
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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). Inmates are required to exhaust
available administrative remedies, and suits filed before the exhaustion requirement is met
must be dismissed. Booth v. Churner, 532 U.S. 731, 740-41 (2001); Yousef v. Reno, 254
F.3d 1214, 1216 n.1 (10th Cir. 2001). AAn inmate who begins the grievance process but
does not complete it is barred from pursuing a ' 1983 claim under PLRA for failure to
exhaust his administrative remedies.@ Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir.
2002) (citation omitted). In deciding a motion to dismiss based on nonexhaustion, the
Court can consider the administrative materials submitted by the parties. See Steele v.
Fed. Bureau of Prisons, 355 F.3d 1204, 1212 (10th Cir. 2003), abrogated in part on other
grounds, Jones v. Bock, 549 U.S. 199 (2007).
According to DCF Grievance Coordinator Terry Underwood, the facility utilizes the
DOC Offender Grievance Process, OP-090124, as its administrative remedies policy.
(Dkt. 47-6 at 3). Pursuant to the policy, an inmate first must attempt to resolve his
complaint informally by communicating with staff within three days of the incident. (Dkt.
47-8 at 7). If that is unsuccessful, he may submit a Request to Staff (RTS) within seven
calendar days of the incident, alleging only one issue per form. Id. at 8. If the offender
does not receive a response to his RTS within 30 calendar days of submission, he may
submit a grievance to the review authority, asserting only the issue of the lack of response

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to the RTS. Id. at 9. If the complaint is not resolved after the response to the RTS, the
offender then may file a grievance. Id. If the grievance also does not resolve the issue, the
inmate may appeal to the DOC Administrative Review Authority (ARA) or the Chief
Medical Officer. Id. at 13. The administrative process is exhausted only after all of these
steps have been taken. Id. at 15.
Grievance Coordinator Underwood and ARA Manager Mark Knutson state by
affidavit that Plaintiff filed only one grievance related to the incident. (Dkts. 47-6). On
June 23, 2015, Plaintiff submitted Grievance No. 2015-1001-214-G with an attached RTS.
(Dkt. 47-9). On June 30, 2015, the Grievance Coordinator returned the grievance to
Plaintiff unanswered, because the RTS and the grievance did raise the same issue. (Dkt.
47-9 at 10-12). Also, the grievance requested compensation, when OP-090124(II)(B)(4)
specifically states that grievances requesting monetary compensation may not be
submitted. (Dkt. 47-8 at 5).
Plaintiff appealed the grievance decision to the ARA, and on July 14, 2015, the
appeal was returned to him unanswered. (Dkt. 47-9 at 7-8). The returned appeal noted
that (1) more than one issue was presented; (2) additional issues submitted in the appeal,
but not submitted in the initial grievance, would not be addressed by the ARA; and (3) the
issue was not properly addressed through the offender grievance process. Id. at 7.
On August 27, 2015, Plaintiff resubmitted an appeal to the ARA, indicating he never
received a response to his first ARA appeal. Id. at 5. The resubmitted appeal was
returned unanswered to Plaintiff on September 1, 2015, with a notation that a copy of the
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previous response was being provided to him. Id. at 3.
After careful review of the record, the Court concludes there is no genuine dispute
as to any material fact concerning whether Plaintiff has exhausted the administrative
remedies for his claims, pursuant to 42 U.S.C. ' 1997e(a). Therefore, Defendants are
entitled to judgment as a matter of law.@ Fed. R. Civ. P. 56(a).
ACCORDINGLY, Defendant Justin Franklin is DISMISSED WITHOUT
PREJUDICE for Plaintiff=s failure to serve him in accordance with Fed. R. Civ. P. 4(m).
Defendants Tim Wilkinson, Damon Hininger, Officer Rankins, and Officer Gentry=s
motion for summary judgment (Dkt. 47) is GRANTED, and this action is DISMISSED in
its entirety.
IT IS SO ORDERED this 6th day of February 2019.

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