Morales v. Jones et al
Filing
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OPINION AND ORDER by Judge Gregory K Frizzell ; dismissing/terminating case ; granting 39 Motion for Summary Judgment; finding as moot 43 Motion for Appointment of Counsel (hbo, Dpty Clk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
OMAR MORALES,
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Plaintiff,
vs.
JUSTIN JONES, Director; et al.,
Defendants.
Case No. 10-CV-169-GKF-TLW
OPINION AND ORDER
This is a 42 U.S.C. § 1983 civil rights action commenced on December 15, 2009, by
Plaintiff, a prisoner appearing pro se. Plaintiff filed his complaint (Dkt. # 1) and a motion to
proceed in forma pauperis (Dkt. # 2), in the United States District Court for the Western District of
Oklahoma. That Court granted Plaintiff’s motion to proceed in forma pauperis, see Dkt. # 5. On
February 19, 2010, after Plaintiff filed an amended complaint (Dkt. # 11),1 the United States
Magistrate Judge entered a supplement (Dkt. # 14) to the initial Report and Recommendation,
recommending that Defendant Jones be dismissed and the remainder of the case be transferred.
Plaintiff filed an objection (Dkt. # 15). By Order filed March 18, 2010 (Dkt. # 16), the
recommendations contained in the supplemental Report were adopted and the case was transferred
to this district court. See Dkt. # 16.
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In the amended complaint, Plaintiff names the following defendants: Justin Jones, Director;
Walter N. Dinwiddie, Warden; Curtis Hood, Chief of Security; Tom Dyer, Case Manager;
Larry D. Stewart, District Attorney for Osage County; and Randy Knight, Investigator. He
abandoned his claims against any defendant named in the original complaint and omitted
from the amended complaint. Those defendants are Martin Molles (Inmate #371859),
Marcial Badillo (Inmate #496054), John Doe (ADA, Osage County), and John Doe
(Investigator for DA, Osage County).
In response to the amended complaint, Defendants Walter Dinwiddie, Tom Dyer, Curtis
Hood, Justin Jones,2 Randy Knight, and Larry D. Stuart filed a motion for summary judgment (Dkt.
# 39). Plaintiff filed a response to the motion for summary judgment (Dkt. # 44). Defendants also
filed a Special Report (Dkt. # 40). In addition, Plaintiff filed a motion for appointment of counsel
(Dkt. # 43). For the reasons set forth below, the Court finds that Defendants’ motion for summary
judgment shall be granted. Plaintiff’s motion for appointment of counsel shall be declared moot.
BACKGROUND
On August 10, 2007, inmate John Pierce was stabbed to death by members of the Indian
Brotherhood (“IBH”) gang at Dick Conner Correctional Center (“DCCC”). On or about August 21,
2007, thirty-five inmates, including Plaintiff, who had been housed in cells in the general area of the
murder, were interviewed by Randy Knight, an investigator for the Oklahoma Department of
Corrections (“ODOC”). The unit was on lock down during the interviews. One of the inmates,
Charles Moore, was given a protective custody transfer on August 20, 2007, prior to any of the
interviews. Approximately eight (8) months later, on April 14, 2008, Plaintiff met briefly with Dale
Anderson, an investigator for the Oklahoma Indigent Defense System (“OIDS”). When he learned
that Mr. Anderson represented one of the four inmates accused of murdering John Pierce, Plaintiff
refused to talk to him and terminated the interview. One week after his meeting with the OIDS
investigator, on April 21, 2008, Plaintiff was attacked and stabbed by two other DCCC inmates. He
was taken via a life flight helicopter to St. Francis Hospital in Tulsa, Oklahoma, where he received
2
Defendant Justin Jones was dismissed from this action by the United States District Court
for the Western District of Oklahoma prior to entry of the Order transferring the case to this
Court. See Dkt. # 16.
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treatment for his wounds. He was subsequently transferred to Lindsay Hospital. On April 30, 2008,
upon release from the hospital, Plaintiff was reassigned to Lexington Correctional Center (“LCC”)
where he now resides.
Based on those events, Plaintiff identifies two (2) claims in his amended complaint, as
follows:
Count 1:
Through deliberate indifference defendants failed to protect Plaintiff from
other inmates with full knowledge that he would be assaulted.
Count 2:
Defendants, in a conspiracy, used excessive force against Plaintiff.
(Dkt. # 11). Plaintiff seeks monetary damages. On September 14, 2010, Defendants moved for
summary judgment on the grounds that (1) Defendants Jones, Dinwiddie, and Stuart are not liable
to Plaintiff due to lack of personal participation, (2) Plaintiff’s conclusory statements are insufficient
to state a claim for violation of the Eighth Amendment, (3) Plaintiff’s Eighth Amendment rights
were not violated by the Defendants, (4) Plaintiff failed to exhaust his administrative remedies
regarding his claims for violation of his rights, and (5) Plaintiff’s complaint of negligent supervision
must be dismissed due to lack of jurisdiction pursuant to governmental immunity provided by Okla.
Stat. tit. 51, § 155(6) & (24) of the Oklahoma Governmental Tort Claims Act. See Dkt. # 39.
Plaintiff filed a response to Defendants’ motion. Dkt. # 44. For the reasons set forth below, the
Court finds Defendants are entitled to summary judgment on their claim that Plaintiff failed to
exhaust administrative remedies prior to filing his complaint.
ANALYSIS
A. Summary judgment standard
Summary judgment pursuant to Fed. R. Civ. P. 56 is appropriate where there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp.
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v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986);
Kendall v. Watkins, 998 F.2d 848, 850 (10th Cir. 1993). “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,
477 U.S. at 317.
“When the moving party has carried its burden under Rule 56(c), its opponent must do more
than simply show that there is some metaphysical doubt as to the material facts . . . . Where the
record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there
is no ‘genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586-87 (1986) (citations omitted). In its review, the Court construes the record in the light most
favorable to the party opposing summary judgment. Garratt v. Walker, 164 F.3d 1249, 1251 (10th
Cir. 1998). “The mere existence of a scintilla of evidence in support of the plaintiff’s position will
be insufficient; there must be evidence on which the [trier of fact] could reasonably find for the
plaintiff.” Anderson, 477 U.S. at 252. In essence, the inquiry for the Court 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.” Id. at 251-52.
B. Exhaustion of administrative remedies
Pursuant to the Prison Litigation Reform Act (“PLRA”), “[n]o 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 provision applies “to all inmate suits about
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prison life, whether they involve general circumstances or particular episodes, and whether they
allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). Moreover,
exhaustion of administrative remedies under the PLRA is required for all inmates seeking relief in
federal district court regardless of the type of relief available under the institutional administrative
procedure. Woodford v. Ngo, 548 U.S. 81 (2006); Booth v. Churner, 532 U.S. 731, 741 (2001).
The statutory exhaustion requirement is mandatory, and this Court is not authorized to dispense with
it. See Beaudry v. Corr. Corp. of America, 331 F.3d 1164, 1167 n.5 (10th Cir. 2003). There is no
futility exception to § 1997e(a)’s exhaustion requirement. Booth, 532 U.S. at 741 n. 6 (“[W]e stress
the point . . . that we will not read futility or other exceptions into statutory exhaustion requirements
where Congress has provided otherwise.”).
The PLRA requires exhaustion of available
administrative remedies “before suing over prison conditions.” Booth, 532 U.S. at 733. To satisfy
the exhaustion requirement, an inmate must comply “with an agency’s deadlines and other critical
procedural rules because no adjudicative system can function effectively without imposing some
orderly structure on the course of is proceedings.” Ngo, 548 U.S. at 90-91.
The Supreme Court has held that “inmates are not required to specially plead or demonstrate
exhaustion in their complaints.” Jones v. Bock, 549 U.S. 199, 216 (2007). “[T]he failure to exhaust
is an affirmative defense under the PLRA.” Id. “Section 1997e(a) says nothing about a prisoner’s
subjective beliefs, logical or otherwise, about the administrative remedies that might be available
to him. The statute’s requirements are clear: If administrative remedies are available, the prisoner
must exhaust them.” Chelette v. Harris, 229 F.3d 684, 688 (8th Cir. 2000). “Congress intended to
save courts from spending countless hours, educating themselves in every case, as to the vagaries
of prison administrative processes, state or federal” and “did not intend for courts to expend scarce
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judicial resources examining how and by whom a prison’s grievance procedure was implemented.”
Concepcion v. Morton, 306 F.3d 1347, 1354 (3d Cir. 2002) (quotation omitted).
Defendants allege that they are entitled to summary judgment based on Plaintiff’s failure to
exhaust administrative remedies prior to filing his civil rights complaint. The Court agrees. The
evidence, viewed in the light most favorable to Plaintiff, fails to show the existence of a genuine
issue of material fact as to whether Plaintiff satisfied the exhaustion requirement of the PLRA prior
to filing his complaint. He did not. The ODOC grievance procedure, see Dkt. # 40, Ex. 17
(“Inmate/Offender Grievance Process” (OP-090124)), in effect at the time of the incidents giving
rise to Plaintiff’s claims, calls for submission of a request to staff (“RTS”) within 7 calendar days
of the alleged incident to be timely. (OP-090124(IV)(B)(2)). If there has been no response to the
RTS after 30 calendar days of its submission, the inmate may file a grievance to the reviewing
authority regarding the lack of a response. (OP-090124(IV)(B)(7)). Next, a grievance must be
submitted within 15 calendar days of the incident or the date of the response to the RTS, whichever
is later. (OP-090124(V)(A)(1)). The reviewing authority may extend the period for submission of
a grievance for up to 60 days for good cause. (OP-090124(V)(A)(2)). There is also a procedure for
submitting a grievance out of time. (OP-090124(XII)). Upon receipt of a grievance, the reviewing
authority is required to respond within 15 working days. (OP-090124(V)(C)(1)). If dissatisfied with
the response by the reviewing authority, the inmate must then appeal to the administrative review
authority within 15 calendar days of receipt of the reviewing authority’s response. (OP090124(VII)(B)). The ruling of the administrative review authority is final and concludes the
internal administrative remedy available to the inmate/offender within ODOC’s jurisdiction. (OP090124(VII)(D)).
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Plaintiff’s claims in this case fall squarely within the PLRA’s exhaustion requirement
because Plaintiff was “confined in any jail, prison, or other correctional facility” when his claims
arose. Cf. Robbins v. Chronister, 402 F.3d 1047, 1054 (10th Cir. 2005) (“Constitutional claims
arising before the events causing the plaintiff’s incarceration are unrelated to prison confinement.”).
In support of their motion for summary judgment, Defendants present evidence indicating that
Plaintiff failed to exhaust available administrative remedies in accordance with ODOC’s grievance
policy prior to filing his complaint. That policy, as discussed above, provides that a claim has not
been exhausted until the prisoner properly and timely files an appeal to the administrative review
authority and that authority issues a response to the appeal. The record presented by Defendants
reflects that in September and November 2009, or more than a year after he was stabbed, Plaintiff
submitted two RTS and a grievance concerning the prison officials’ failure to place him in protective
custody. See Dkt. # 40, Ex. 2. In response to the grievance, the reviewing authority granted relief
and wrote “I have directed the Chief of Security to answer your Request to Staff by December 18,
2009 and forward a copy to this office.” Id. at page 4 of 4. Curtis Hood, the Chief of Security at
DCCC, prepared a Memorandum in response to the RTS, advising Plaintiff that he had no idea
Plaintiff was in danger and assuring Plaintiff that “none of us in the department would sit back and
let an individual be in harms way if we had prior knowledge.” See Dkt. # 40, Ex. 8. Plaintiff took
no action to appeal the resolution of his grievance. In addition, in November 2009, Plaintiff
submitted a RTS asking Defendant Dyer why he told the inmates who stabbed him that he was a
snitch and a child abuser. See Dkt. # 40, Ex. 3. After Defendant Dyer responded, Plaintiff filed a
grievance. Id. In response to that grievance, the reviewing authority denied relief. Id. at page 3 of
3. Again, nothing in the record suggests that Plaintiff appealed the resolution of this grievance to
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the administrative review authority. As a result, Plaintiff did not complete the administrative appeal
process as to either of the grievances contained in the record provided by Defendants.
In response to Defendants’ motion for summary judgment, Plaintiff provides a RTS, dated
April 16, 2008, or only five (5) days before he was stabbed, addressed to Defendant Dyer, his case
manager, expressing concern for his safety and requesting that he be placed in protective custody.
See Dkt. # 44, Ex. A.3 There is no response on the RTS and Plaintiff alleges he never received a
response to this RTS. He claims that he never filed a grievance because “[n]o grievances are
available if a Request to Staff is not answered.” (Dkt. # 44 at 8). Plaintiff further alleges that since
he was in the hospital for nine days after being stabbed he had no access to the proper forms and
could not proceed with exhausting administrative remedies within the time constraints imposed by
OP-090124.
The Court disagrees with Plaintiff’s interpretation of OP-090124. He in fact had a remedy
if his RTS was not answered. See OP-090124(IV)(B)(7), discussed above. In addition, while the
Court sympathizes with Plaintiff’s inability to comply with the strict time requirements of OP090124 due to his hospitalization and subsequent period of convalescence, he nonetheless had an
administrative remedy. Under OP-090124(V)(A)(2), he could have requested, upon a showing of
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The Request to Staff presented by Plaintiff is not part of the summary judgment record
provided by Defendants. As part of the Special Report prepared in this case, Defendant Dyer
provides his affidavit, see Dkt. # 40, Ex. 5, stating that “[f]ollowing the meeting [with OIDS
Investigator Anderson], the plaintiff did not tell me that he didn’t feel safe or that the IBH
would believe that he was testifying against gang members. The plaintiff did not tell me that
he wanted protective custody. I do not recall having ever received any written request from
the plaintiff, asking for protection before, during or after the April 14, 2008 interview with
the [OIDS] Investigator.” Id. at ¶ 6. Defendants did not file a reply to Plaintiff’s response.
As a result, Defendants have not explained why the RTS presented by Plaintiff was not part
of their Special Report.
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good cause, an extension of an additional 60 days for submission of a grievance. Furthermore, under
OP-090124(XII), he could have requested that he be allowed to submit a grievance out of time.
Plaintiff failed to follow those administrative procedures that were available to him.
As part of his response, Plaintiff also provides a RTS addressed to the Procedures Officer
at Lexington Assessment and Reception Center (“LARC”), dated September 27, 2009, requesting
information regarding policies governing delivery of an inmate witness during an investigation and
governing transfer of an inmate witness whose life is in danger. See Dkt. # 44, Ex. B1. In addition,
he provides the Administrative Review Authority response from Debbie L. Morton, Director’s
Designee, dated March 15, 2010, returning his grievance unanswered and a cover letter dated
January 27, 2010, enclosing a document relevant to grievance number DCCC 10-004. Id. Exs. B2
and B3. The records provided by Plaintiff as Exhibit B were not part of the summary judgment
record provided by Defendants. Plaintiff did not provide a copy of the grievance giving rise to his
appeal to the Administrative Review Authority. As a result, it is unclear whether the subject of the
RTS provided as Exhibit B1 was also the subject of the administrative appeal provided as Exhibit
B2. Significantly, the documents provided by Plaintiff as Exhibits B1-3 do not reference the specific
event giving rise to the claims raised in this case. Furthermore, it is clear that the administrative
appeal concluded on March 15, 2010, or almost three (3) months after Plaintiff commenced this
federal civil rights action. As discussed above, a plaintiff is required to exhaust administrative
remedies before filing a civil rights lawsuit in federal court. 42 U.S.C. § 1997e(a); Booth, 532 U.S.
at 733. Therefore, the Exhibit B1-3 documents do not convince the Court that Plaintiff exhausted
available administrative remedies before filing this action.
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Upon review of the summary judgment record, the Court finds Plaintiff failed to exhaust
available administrative remedies before filing this action. If Plaintiff was unable to comply with
the timing requirements imposed under OP-090124 due to the seriousness of his injuries, he could
have sought a 60 day extension for submission of a grievance as provided by OP-090124(V)(A)(2).
He also could have requested that he be allowed to submit a grievance out of time under OP090124(XII). In addition, when he did file grievances, he failed to appeal to the administrative
review authority as required by OP-090124(VII).
In conclusion, the Court finds that there is no genuine issue of material fact as to whether
Plaintiff exhausted administrative remedies before filing this civil rights action. Because he failed
to exhaust administrative remedies provided by ODOC, Defendants’ motion for summary judgment
shall be granted.
ACCORDINGLY, IT IS HEREBY ORDERED that:
1.
Defendants’ motion for summary judgment (Dkt. # 39) is granted.
2.
Plaintiff’s motion for appointment of counsel (Dkt. # 43) is declared moot.
3.
Plaintiff’s complaint (Dkt. # 1), as amended (Dkt. # 11), is dismissed without prejudice for
failure to exhaust administrative remedies.
4.
A separate judgment in favor of Defendants shall be entered in this matter.
DATED THIS 21st day of September, 2011.
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