Wilson v. Corrections Corporation of America et al

Filing 48

ORDER adopting 45 the Second Supplemental Report and Recommendation in its entirety; denying 14 defendants' Motion to Dismiss; granting 35 Wilson's Cross-Motion for Partial Summary Judgment; re-refers matter to Magistrate Judge Purcell for further proceedings. Signed by Honorable Lee R. West on 12/04/15. (jy)

IN THE UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF OKLAHOMA

ANDY JACK WILSON,
Plaintiff,

)
vs.

)

No. CIV-14-779-W

CORRECTIONS CORPORATION OF

AMERICA etal..
Defendants.

ORDER

On August 26, 2015, United States Magistrate Judge Gary M. Purcell issued a
Second Supplemental Report and Recommendation in this matter and recommended that
the Motion to Dismiss, which was filed by defendants Corrections Corporation of America,
Inc. ("CCA"), Tim Wilkinson, William C. Rankins, David S. Worsham and William L.

Barneck and which Magistrate Judge Purcell construed as a motion for summary judgment
on the issue of exhaustion of administrative remedies, be denied and that the Cross-Motion

for Partial Summary Judgment filed by plaintiff Andy Jack Wilson be granted as to that
same issue. The parties were advised of their right to object, and the matter now comes
before the Court on the defendants' Objection to Report and Recommendation, see Doc.

46, and Wilson's response thereto. See Doc. 47. Upon de novo review ofthe record,^ the
Court concurs with Magistrate Judge Purcell's suggested disposition of these motions.^

^Because the parties are familiar with the facts, the Court has not repeated the same in
detail.

^Magistrate Judge Purcell focused on Wilson's attempts to exhaust his administrative
remedies beginning in October 2013, and the defendants have not submitted any argument or
authority that compels the Court to reject Magistrate Judge Purcell's findings and
recommendations. Because the Court concurs with Magistrate Judge Purcell's analysis, the Court

Atthe time the incident giving rise to this lawsuit occurred, Wilson was incarcerated
at Davis Correctional Facility ("DCF"), in Holdenville, Oklahoma. DOFis operated by CCA,
a private entity that houses inmates pursuant to a contract with the Oklahoma Department
of Corrections ("ODOC"); Wilkinson is DCF's Warden, and CCA employees Rankins,
Worsham and Barneck, are, respectively, a Unit Manager, a Case Manager and a Senior
Correctional Officer. Rankins is also Commander of DCF's Special Operations Response
Team ("SORT"); Worsham and Barneck are SORT members.

On November 7, 2012, during a routine cell search, Wilson and his cellmate were

"discovered unresponsive."^ Doc. 36-11 at 2. A cell extraction was initiated, and at
Rankins' direction, Worsham fired an ALS6227 OC Powder Blast Dispersion Projectile (37

mm)"* into Wilson's cell through the food port. The projectile hit Wilson in the head. He
was transported first to Holdenville General Hospital ("HGH"), s^ Doc. 36-5, for treatment
and then to OU Medical Center "for further evaluation." Doc. 36-6 at 2.

The CT scan performed at HGH was deemed "insufficient," Doc. 40-3 at 3, and a
repeat CT was ordered at OU Medical Center. That scan showed an "[a]cute, minimally

finds it unnecessary to repeat that analysis again In the instant Order. The Court has instead
confined its review of the parties' submissions to that period of time immediately following the
incident on November 7, 2012.

urine drug screen was "positive for amphetamines, methamphetamines, marijuana,
tricyclic antidepressants and benzodiazepines[ ]." Doc. 36-6 at 2-3; e.g.. Doc. 40-1 at 2.

"^According to an incident report completed by Rankins, Worsham fired two (2) shells into
Wilson's cell. See Doc. 36-11 at 2, U 8.
A Preliminary Review Report prepared on Novembers, 2012, by Wilkinson's designee, after
that individual had watched a video of the incident, indicated "that SORT [members] did not utilize
an ALS OC37 Muzzle Blast," Doc. 36-27 at 3, H I.a, but had instead mistakenly "fired an ALS6227
OC Powder Blast Dispersion Projectile (37MM)." id. "The ALS6227 shoots out several cardboard
disks ... [one or more of which] struck . .. Wilson in the head . .. causing [his].. . laceration."
Id.

depressed comminuted right frontal bone fracture with underlying acute subdural and
intraparenchymal hemorrhage." Doc. 36-3 at 2; e.g.. Doc. 36-5; Doc. 36-10 at 3; Doc. 403. The "fracture... [transversed] and involv[ed] the outer table of [the]frontal sinus[ ] [and
the right] medial orbital wall." Doc. 36-3 at 2.

According to OU Medical Center records, Wilson did "not recall [the] events[,]" Doc.
36-6 at 3, resulting in his "head trauma[.]" jd. His status was described as "post fall[,]" jd.
at 4; e.g.. Doc. 36-7 at 2 ("injury to head and ... face .. . and decreased mental status
[from] fall... while being intoxicated with 'drugs"'); id. ("patient sustained a laceration from

a fall"); jd. at 8 ("patient sustained a laceration from a blunt force and fall"),® and it was
recommended that Wilson be admitted "for hourly neurologic checks for at least 24 hours
. .. ." Doc. 36-6 at 3.

On November 8, 2012, Wilson was transferred to Lindsay Municipal Hospital

("LMH"); he was discharged four (4) days later on November 12, 2012. See Doc. 36-4.
The Discharge Summary listed Wilson's condition as "[s]table," jd- at 2, and described his
injuries as a "right frontal skull fracture, right orbital fracture, and subdural and

subarachnoid hemorrhage, and a right frontal laceration." Id. Kamil Nemri, M.D., who
prepared the summary, remarked that Wilson had been admitted to LMH so "his
neurological function," jd., could be monitored. As to cause, Dr. Nemri repeated that
Wilson had "reportedly [fallen] at... [DCF] and hit his head and lost consciousness[,]"id..

®0U Medical Center Progress Notes indicated that Wilson had "suffered a fall," Doc. 36-10
at 2-information that was "obtained from [Wilson] and [a DCF] officer." jd. The "Spontaneous
Incidents/Use of Force: Check List/Closure," Doc. 36-11 at 2, completed by Rankins on November
7, 2012, read: "[l]t was believed that.. . Wilson, startled by the sound of the OC Muzzle Blast,
rolled quickly to his right and hit his head on the metal toilet seat in his cell." id. If 8.

and he stated that he had "discuss[ed] with . . . [Wilson] about his memory lapses and
headache, and that [such was]... consistent with a traumatic brain injury that sometimes
[could]... take several months to improve." Id-

LMH nursing notes dated November 10, 2012, indicated that Wilson did "know he
[had been]... hit in the head." Doc. 36-8 at 10. Notes dated the next day, November 11,
2012, further reported that Wilson "wanted to only talk about how he was told he had fallen
to receive his injury[,]" ]d. at 12, because he "fel[t] certain some [had] tried to stomp him
in the head to 'kill' him." Jd.®
On November 12, 2012, Wilson returned to DCF; he was housed in the facility's
medical unit from that date to November 20, 2012. Progress Notes dated November 13,

2012, and November 14, 2012, respectively, advised that Wilson "ha[d] periods of
confusion," Doc. 36-13 at 2, and that while he was "alert[ ] [and had] answer[ed] questions
appropriately," Doc. 40-13 at 5, he did "not remember how he was injured." id.
James Yates, DCF Assistant Warden for Security Operations, met with Wilson

sometime after 3:00 p.m. on November 14, 2012, "for over an hour," Doc. 40 at 8, and

during that meeting, Yates and Wilson "specifically discussed what had happened during
the ... use offeree incident and how [Wilson]... had been injured." Affidavit of James
Yates (June 23, 2015) at 5, H 12.

®See Affidavit of Aaron Odum (August 7,2015) at 3,1| 5 (SORT member who accompanied
Wilson to HGH, in response to Wilson's statement that "he thought other inmates had jumped him,"
told Wilson "that no inmates had jumped him and that something had happened during the cell
extraction;" Odum denied further knowledge of the incident). See also Affidavit of Darrin Brewer
(August 10, 2015).
4

Wilson filed this action on July 23, 2014, seeking redress under title 42, section

1983 ofthe United States Code. Hehas alleged in those claims that remain for resolution^
that the defendants used excessive and unnecessary force and were deliberately

indifferent to his health and safety. See Doc. 1 (First and Fifth Claims for Relief); Doc. 37.
The Prison Litigation Reform Act ("PLRA") of 1996 provides in pertinent part that
[n]o action shall be brought with respect to prison conditions under section
1983 ... by a prisoner confined in any . . . correctional facility until such
administrative remedies as are available are exhausted.

42 U.S.C. § 1997e(a). "[E]xhaustion is mandatory under the PLRA," Jones v. Bock. 549
U.S. 199, 211 (2007); "unexhausted claims cannot be brought in court." Jd. (citation
omitted).

To exhaust in Oklahoma, a state prisoner must "'us[e] all steps that [ODOC]. ..

holds out, and [do] so properly (so that . . . [ODOC can] address[ ] the issues on the
merits)."' Woodford v. Nao. 548 U.S. 8, 90 (2006)(quotation omitted)(emphasis deleted).
"Proper exhaustion demands compliance with [ODOC's]... deadlines and other critical
procedural rules[.]" jdOn November 7, 2012, ODOC's Offender Grievance Process, as outlined in OP-

090124, see Doc. 14-2,® required four (4) steps. See Thomas v. Parker. 609 F.3d 1114,

1117 (10**^ Cir. 2010)(ODOC grievance process requires informal consultation with staff.

^See Doc. 37.

®The copy of the ODOC Offender Grievance Process submitted by the defendants was
effective January 29, 2013. See Doc. 14-2. In the absence of any evidence to the contrary, the
Court has assumed that the applicable provisions of that document read the same as the version
in effect in November 2012.

then three written steps).® An inmate must first attempt to resolve any grievable issue

infomially "bytalking with the affected staff,supervisingemployee or other appropriate staff
within three days of the incident." Doc. 14-2 at 7, Section IV. B. If the matter is not
resolved, the inmate must then proceed with step two, which is considered part of "[t]he

informal resolution process ...." jd. at 6, Section IV. That step requires the submission
of "a 'Request to Staff ... [that] detail[s] the issue/incident completely but briefly." Id- at
7, Section IV.C. "The 'Request to Staff must be submitted within seven calendar days of
the incident[.]" jd- Section IV.C.3.

These two steps are mandatory, and neither the initial three (3)-day informal
resolution deadline nor the subsequent seven (7)-day Request to Staff ("RTS") deadline

may be extended. Wilson took neither step.^^ Accordingly, for purposes of the instant
Order,^^ allactions taken either by Wilson or the defendants after November 14,2012, are
arguably irrelevant, and unless circumstances exist that excuse exhaustion, Wilson is

foreclosed from pursuing his claims. E.g.. Woodford. 548 U.S. at 88 (to properly exhaust
administrative remedies prisoners must complete administrative review process in
accordance with applicable procedural rules, including deadlines).

®Steps one and two are outlined in that section of ODOC's Offender Grievance Process
entitled "Informal Resolution." See Doc. 14-2 at 6-8, Section IV. Steps three and four involve the
submission, review and appeal of formal grievances. See id. at 8-15.

^°The term "Request to Staff' is defined as "[a] system oftwo-way communication between
staff and offenders to resolve complaints/issues informally[.]" Doc. 14-2 at 3, Section I.B.

^^See Doc. 14 at 29 (Wilson's first filing to Wilkinson was RTS dated October 15, 2013,
some eleven (11) months after complained-of incident); id. (October 2013 RTS "is clearly an
untimely filing").
^^See n.2 suora.

Exhaustion is an affirnnative defense, e.g.. Jones. 549 U.S. at 212; accordingly, "the

burden ofproof... lies with the defendant[s]." Roberts v. Barreras. 484 F.3d 1236,1241
(10'^ Cir. 2007). Toprevail, theymustfirst demonstrate the absence ofa disputed material
fact regarding that defense. If they do so, Wilson "must then demonstrate with specificity
the existence of a disputed material fact. If . . . [he] fails to make such a showing, the

affirmative defense [ofexhaustion] bars hisclaim[s], and the defendant[s]... [are] entitled

tosummary judgment as a matter oflaw." Hutchinson v. Pfeil. 105 F.Sd 562,564 (10'^ Cir.
1997)(citation omitted).^^
It is undisputed that Wilson did not attempt to informally resolve any issues arising
from the incident on November 7,2012, either "bytalking withthe affected staff," Doc. 14-2

at 7, Section IV.B, or by submitting a timely RTS. Wilson's failure to do so however is not
fatal ifthe defendants "'prevent[ed], thwart[ed], or hinder[ed.]"' Tuckel v. Grover. 660 F.Sd

1249,1252 (10^^ Cir. 2011)(quotation omitted), hisefforts or ifexhaustion would have been
futile. The latter exception is applied only "when administrative relief is 'effectively

^^Summary judgment is appropriate if"there is no genuine issue as to any material fact and
the movant is entitled to judgment as a matter of law." Rule 56(a), F.R.Civ.P. The Courtdoes not
evaluate the credibility of the witnesses, e.g.. Anderson v. Libertv Lobby. Inc.. 477 U.S. 242, 255
(1986), or "weigh the evidence and determine the truth of the matter
" Jd. at 249. Rather, the
Court must decide "whether there is a genuine [disputed] issue [of fact] . . . [and] there is no

[triable] issue... unless there is sufficient evidence favoring the nonmoving partyfor a [factfinder]
... to [find]... for that party. If the evidence is merely colorable, or is not significantly probative,
summary judgment may be granted." id. at 249-50 (citations omitted). The Court's inquiry must
be whether the evidence, when viewed "through the prism of the substantive evidentiary burden,"

id. at 254, "presents a sufficient disagreement to [preclude summary judgment]... or whether it
is so one-sided that one party must prevail as a matter of law." id. at 251-52.
"Cross-motions for summary judgment are to be treated separately; the denial of one does

not require the grant ofanother." Buell Cabinet Co. v. Sudduth. 608 F.2d 431,433 (10'^' Cir. 1979)
(citations omitted). When reviewing a cross-motion, the Court must "'construe all inferences in
favor ofthe party against whom the motion under consideration is made[.]"' Pirkheimv. First Unum
Life Insurance. 229 F.3d 1008,1010 (10'^ Cir. 2000)(quoting Andersen v. Chrvsler Corp.. 99 F.3d
846, 856 (7"^ Cir. 1996)).

foreclosed.'"

Revna v. Ledezma. 415 Fed. Appx. 926, 927 (10^*^ Cir. 2011)(quoting

Goodwin v. Oklahoma. 923 F.2d 156,158 (10*^ Cir. 1991))(cited pursuant to Tenth Cir. R.
32.1). In applying these narrow exceptions, the Court finds under the limited circum
stances of this case that exhaustion is excused.^"*

Wilson's injuries and immediate hospitalization rendered impossible any informal

attempts to resolve the matter within three (3) days. His ability to meet the seven (7)-day
deadline was hindered, ifnot thwarted, by his continued hospitalization. The situation was
exacerbated by Wilson's ignorance of, and confusion about, the actual cause of his

injuries-ignorance and confusion that resulted from the injuries themselves, see Doc. 36-4
at 2; Doc.36-8 at 10,12; Doc. 40-13 at 5, as well as from the defendants' misstatements.

See, e.g.. Doc. 36-6 at 2 ("patient... fell and hit his head"); Doc. 36-10 at 2; Doc. 11 at

2 (Wilson, startled by sound of OC Muzzle Blast, rolled right and hit head on metal toilet).^®
Based on the foregoing, the Court
(1) FINDS that exhaustion of administrative remedies has been excused in
connection with Wilson's First and Fifth Claims for Relief for the reasons stated herein as

well as for the reasons stated by Magistrate Judge Purcell;

^''E.g.. Tuckel. 660 F.3d at 1252 (to be "available," remedy must be "capableof use forthe
accomplishment of a purpose")(quoting Booth v. Churner. 532 U.S. 731, 737 (2001)(citation
omitted))).

^®The defendants have not explained why Wilson was not provided immediate assistance
after he was injured and rendered impaired as required by ODOC's Offender Grievance Process,
whyWilson was not entitled to such assistance during the relevant three (3)-day and seven (7)-day
periods or why applicable RTS forms were not made available to Wilson while he was housed in
DCF's medical unit. See Doc. 41-7 at 4, ^ 7. Section III.B clearly states that "[a]ppropriate
assistance for those impaired or disabled will... be provided." See Doc. 14-2 at 5, Section III.B.
8

(2) ADOPTS the Second Supplemental Report and Recommendation [Doc. 45]
issued on August 26. 2015, in its entirety and in particular as to Magistrate Judge Purcell's
ultimate finding that the defendants obstructed and/or hindered Wilson's efforts to exhaust
his administrative remedies and his suggestion that Wilson was entitled to summary
judgment on the issue of exhaustion;

(3) DENIES the defendants' Motion to Dismiss [Doc. 14] filed on October 17,2014,
and construed as a motion seeking relief under Rule 56, F.R.Civ.P.;
(4) GRANTS Wilson's Cross-Motion for Partial Summary Judgment [Doc. 35] filed
on July 9, 2015; and

(5) RE-REFERS this matter to Magistrate Judge Purcell for further proceedings.

ENTERED this 4-^ day of December, 2015.

R. WEST
'UNITED STATES DISTRICT JUDGE