Woodson v. McCollum et al
Filing
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ORDER granting 40 Motion for Summary Judgment; denying 47 Motion for Extension of Time to File; adopting Report and Recommendations re 52 Report and Recommendation.. Signed by Honorable Timothy D. DeGiusti on 12/19/2018. (mb)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
MARCUS D. WOODSON,
Plaintiff,
vs.
JOE ALLBAUGH, et al.,
Defendants.
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Case No. CIV-17-94-D
ORDER
This matter is before the Court for review of the Supplemental Report and
Recommendation [Doc. No. 52] issued by United States Magistrate Judge Gary M. Purcell
pursuant to 28 U.S.C. § 636(b)(1)(B). Judge Purcell recommends that Defendants’ Motion
for Summary Judgment [Doc. No. 40] be granted as to all of Plaintiff’s claims for failure
to exhaust his administrative remedies pursuant to the Prison Litigation Reform Act
(PLRA), and that Plaintiff’s Motion Requesting More Time and Discovery, and requesting
a denial or stay of Defendants’ Summary Judgment motion [Doc. No. 47], be denied.
Plaintiff, who appears pro se, has filed a timely objection [Doc. No. 57] to the
Supplemental Report. The Court must make a de novo determination of the portions of the
Report to which a specific objection is made, and may accept, reject, or modify the
recommended decision in whole or in part. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P.
72(b)(3).
Upon de novo consideration of the issues raised by Plaintiff's Objection, the Court
concurs in Judge Purcell's conclusion that Defendants are entitled to summary judgment
on the § 1983 claims asserted against them and that the Plaintiff’s Motion Requesting More
Time and Discovery, etc., be denied. Liberally construing Plaintiff's Objection, the Court
finds Plaintiff presents the following specific objections to the Supplemental Report: (1)
that Judge Purcell improperly denied his Fed. R. Civ. P. 56(d) Motion Requesting More
Time in that he has not had an opportunity to conduct discovery and needs discovery to
provide facts in dispute; (2) Plaintiff either did exhaust his administrative remedies or he
was improperly prevented from doing so; and, (3) Judge Purcell improperly attempted to
resolve factual disputes. [Doc. No. 52] at 6, 7, 9.
I.
Summary Judgment Standard
Summary judgment is proper “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a); See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Universal
Underwriters Ins. Co. v. Winton, 818 F. 3d 1103, 1105 (10th Cir. 2016). “An issue is
‘genuine’ if there is sufficient evidence on each side so that a rational trier of fact could
resolve the issue either way” and “[a]n issue of fact is ‘material’ if under the substantive
law it is essential to the proper disposition of the claim.” Adler v. Wal-Mart Stores, Inc.,
144 F.3d 664, 670 (10th Cir. 1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).
The court's inquiry must be whether the evidence, when viewed “through the prism
of the substantive evidentiary burden,” Anderson, 477 U.S. at 254, “presents a sufficient
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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. As the Magistrate Judge explained,
“material facts” are “facts that might affect the outcome of the suit under the governing
law. . . .” Id. at 248. Although the Court views all facts in the light most favorable to the
nonmoving party at the summary judgement stage, “there is no issue for trial unless there
is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that
party.” Id. at 249 (citations omitted).
“[I]n opposing a motion for summary judgment, the non-moving party ‘cannot rest
on ignorance of facts, on speculation, or on suspicion.’” Bird v. W. Valley City, 832 F.3d
1188, 1199 (10th Cir. 2016) (quoting Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.
1988)). The nonmoving party “must present affirmative evidence in order to defeat a
properly supported motion for summary judgment. This is true even where the evidence is
likely to be within the possession of the defendant, as long as the plaintiff has had a full
opportunity to conduct discovery.” Anderson, 477 U.S. at 257. “A party asserting that a
fact ... is genuinely disputed must support the assertion by ... citing to particular parts of
materials in the record....” See Fed. R. Civ. P. 56(c)(1)(B); see also Adler, 144 F.3d at 67172 (to show a genuine dispute of material facts, “the facts must be identified by reference
to affidavits, deposition transcripts, or specific exhibits.”). Conclusory statements are not
sufficient to create a genuine issue of material fact. Adler, 144 F.3d at 674.
II.
Plaintiff’s Rule 56(d) Motion for Additional Time to Conduct Discovery
The Court agrees with the Magistrate Judge’s interpretation that Plaintiff’s Motion
[Doc. No. 47] seeks relief under Fed. R. Civ. P. 56(d) to conduct additional discovery.
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Pursuant to Fed. R. Civ. P. 56(d), in order for the Court to grant such a motion, the
nonmoving party must “show[] by affidavit or declaration that, for specified reasons, it
cannot present facts essential to justify its opposition.”1
However, “a party's mere hope that discovery may yield further evidence is
insufficient to defeat a summary judgment motion.” Trans–Western Petroleum, Inc. v.
United States Gypsum Co., 830 F.3d 1171, 1175 (10th Cir. 2016) (quoting Bryant v.
O'Connor, 848 F.2d 1064, 1067 (10th Cir. 1988)); Miller v. United States, 710 F.2d 656,
666 (10th Cir. 1983).
The party seeking additional time to conduct discovery “must
specify (1) the probable facts not available, (2) why those facts cannot be presented
currently, (3) what steps have been taken to obtain these facts, and (4) how additional time
will enable [the party] to obtain those facts and rebut the motion for summary judgment.”
Gutierrez v. Cobos, 841 F.3d 895, 908 (10th Cir. 2016) (quoting Birch v. Polaris Indus.,
Inc., 812 F.3d 1238, 1249 (10th Cir. 2015) (alteration in original) (quotations omitted).
Plaintiff failed to establish any of these requirements in his Response to Defendants
Motion.
The entirety of Plaintiff’s argument for additional discovery in his Motion consists
of two statements: (1) “[P]laintiff cannot obtain affidavits from witness [sic] due to his
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Plaintiff’s Declaration in Opposition to Defendants’ Motion to Dismiss/Motion for
Summary Judgment [Doc. No. 48] serves as his Response to Defendants’ Motion for
Summary Judgment and will be referred to herein for simplicity as “Response.” However,
construing pro se Plaintiff’s filings liberally, the Court will also consider Plaintiff’s
Response as the declaration required by Fed. R. Civ. P. 56(d) to support his Motion
Requesting More Time for additional discovery.
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placement on maximum security”; and, (2) he “has not had the opportunity for discovery
and is unable to submit the necessary affidavits and other evidence to oppose the
Defendants Summary Judgment Motion.”
[Doc. No. 47] at 2, 3. Plaintiff’s Response
provides the following, slightly more detailed argument that he has been denied:
adequate opportunity to conduct discovery where the facts are in the
possession of the moving party, its policies and records and classifications
notes, and memoranda regarding the illegal transfers, conditions of
confinement and grievance records which the Plaintiff is currently being
denied access to Defendants [sic] additionally [sic] abuse policy to restrict
and bar the Plaintiff from accessing the Court.
[Doc. No. 48] at 1. The Court agrees with Judge Purcell that none of these assertions
contains the requisite specificity demanded under Fed. R. Civ. P. 56(d) and Tenth Circuit
case law in that they are “general and conclusory.” [Doc. No. 52] at 4.
The Court agrees with Judge Purcell’s recommendation that Plaintiff’s Motion
Requesting More Time be denied. Moreover, the Court also agrees with Judge Purcell that
further discovery would be futile as Defendants have met their burden to establish the
affirmative defense of failure to exhaust administrative remedies and that the record is
sufficient for the Court to resolve the relevant legal issues.
III.
The PLRA and Exhaustion of Administrative Remedies
Defendants assert the affirmative defense of failure to exhaust administrative
remedies as required by the PLRA. The PLRA provides that:
[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.
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42 U.S.C.A. § 1997e. The Supreme Court has clearly stated that “[t]here is no question
that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be
brought in court.” Jones v. Bock, 549 U.S. 199, 211, 127 S. Ct. 910, 918–19, 166 L. Ed.
2d 798 (2007). “To exhaust administrative remedies an inmate must properly comply with
grievance procedures; substantial compliance is insufficient.” Fields v. Oklahoma State
Penitentiary, 511 F.3d 1109, 1112 (10th Cir. 2007). Proper exhaustion of administrative
remedies “means using all steps that the agency holds out, and doing so properly (so that
the agency addresses the issues on the merits).” Woodford v. Ngo, 548 U.S. 81, 90, 126 S.
Ct. 2378, 2385, 165 L. Ed. 2d 368 (2006) (quoting Pozo v. McCaughtry, 286 F.3d 1022,
1024 (7th Cir. 2002)) (emphasis in original).
In asserting this affirmative defense, “Defendants thus bear the burden of asserting
and proving that the plaintiff did not utilize administrative remedies.” Tuckel v. Grover,
660 F.3d 1249, 1254 (10th Cir. 2011) (citing Jones v. Bock, 549 U.S. 199, 212, 127 S.Ct.
910, 166 L.Ed.2d 798 (2007)). Defendants must establish: (1) administrative remedies
were available to Plaintiff; and, (2) Plaintiff did not comply with the PLRA requirement
that he follow through on all of the steps of the administrative remedies.
Once a defendant establishes the affirmative defense of failure to exhaust
administrative remedies, the nonmoving party can avoid summary judgement by showing
a genuine dispute as to whether the administrative remedies were capable of use or the
“remedies were unavailable to him as a result of intimidation by prison officials.” Tuckel,
660 F.3d at 1254. “[A]n inmate is required to exhaust those, but only those, grievance
procedures that are ‘capable of use’ to obtain ‘some relief for the action complained of.’”
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Ross v. Blake, 136 S. Ct. 1850, 1859, 195 L. Ed. 2d 117 (2016) (quoting Booth, 532 U.S.,
at 738, 121 S.Ct. 1819). An inmate asserting that intimidation prevented him from
exhausting available remedies, must demonstrate:
(1) that the threat or intimidation actually did deter the plaintiff inmate from
lodging a grievance or pursuing a particular part of the prison administrative
process; and (2) that the threat or intimidation would deter a reasonable
inmate of ordinary firmness and fortitude from lodging a grievance or
pursuing the part of the prison administrative process that the inmate failed
to exhaust.
Tuckel v. Grover, 660 F.3d 1249, 1254 (10th Cir. 2011).
Judge Purcell provided a detailed review of the evidentiary materials supplied, and
relied upon, by Defendants to demonstrate that Plaintiff failed to exhaust the administrative
remedies available to him under the Oklahoma Department of Corrections Grievance
Process.2 [Doc. No. 52] at 7-8. Plaintiff did not respond to Defendants’ argument and
evidence that he failed to exhaust administrative remedies. The only mention Plaintiff
makes of any issue related to failure to exhaust is that he “submitted numerous Requests to
Staff” relating to claims regarding “D.O.C. policies 060102, 060203, and 060125 and
060107.” [Doc. No. 48] at 3, 4. Without any further explanation as to the history or
outcome of those Requests to Staff, or evidence in support, Plaintiff asserts he “did exhaust,
and was often intimidated not to do so.” Id.
As discussed by Judge Purcell, a Request to Staff is merely the first step in the
Grievance Process and by no means indicates “compliance with an agency’s deadlines and
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Judge Purcell provided a thorough and accurate outline of the Grievance Process in his
Report. As such, the Court finds no reason to repeat that overview except where it deems
additional details are required.
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other critical procedural rules” including proceeding through “all steps that the agency
holds out, and doing so properly.” Woodford v. Ngo, 548 U.S. 81, 90, 126 S. Ct. 2378,
2385 (internal quotations omitted) (emphasis in original). Neither Plaintiff’s Response nor
his Motion Requesting More Time offer any further argument or evidence to refute
Defendants’ affirmative defense of failure to exhaust.
As Judge Purcell articulated, Plaintiff failed to meet his burden to create a genuine
dispute of fact as to whether he exhausted the available administrative remedies or whether
he was prevented from so doing by intimidation or threat. [Doc. No. 52] at 10, 11. Plaintiff
does not allege in his Response that there are no administrative remedies capable of use or
that the remedies available to him are inadequate. Plaintiff’s briefing is primarily directed
to the merits of his legal claims and completely lacking in any evidence to support a
contention that he exhausted the administrative remedies or that he was intimidated.
In his Objection, Plaintiff asserts, for the first time, an argument to support his
statement that Defendants prevented him through intimidation from exhausting the
administrative remedies. Plaintiff argues that Defendants “threatened, and intimidated and
or transferred” him and makes generalized, unsupported, conclusory assertions that: (1)
“grievances either comes [sic] up lost, or officials simply claim they never received it so
your [sic] now time restrained”; (2) Defendants “held the grievance for an excessive period
of time”; (3) “Defendants simply would either try to mislead him, or impede the Plaintiff
in some way in order to prevent him from completing the process of exhaustion”; and, (4)
he would be “threatened with retaliation from supervisory officials or moved from one area
of the prison to the more restrictive area," or “sanctioned [] with Grievance Restriction, in
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order to impede his ability to properly exhaust.” [Doc. No. 57] at 7, 9, 10. Plaintiff also
argues for the first time in his Objection that the administrative remedies, i.e., the
Grievance Procedure, “is clearly designed to thwart the offender/plaintiff from obtaining a
response and or completing exhaustion.” [Doc. No. 57] at 7.
All of Plaintiff’s new arguments are waived. See Gonzales v. Ledezma, 417 Fed.
Appx. 824, 826 (10th Cir. 2011) (quoting Marshall v. Chater, 75 F.3d 1421, 1426 (10th
Cir. 1996) (“Issues raised for the first time in objections to the magistrate judge's
recommendation are deemed waived.”). However, even if the Court considered Plaintiff’s
new arguments, they are unpersuasive. First, Plaintiff points to no specific incidents in any
of his allegations of intimidation or threat. Second, he presents no evidence as to how the
alleged intimidation prevented him from exhausting his remedies; Plaintiff merely asserts
that actions of a threatening or intimidating nature occurred. Third, despite his argument
to the contrary, the Grievance Procedure provides for filing an appeal after a time certain
regardless of whether a response was received to a “Request to Staff”:
If there has been no response in 30 days, but no later than 60 days, of
submission, the inmate may file a grievance to the reviewing authority with
a copy of the “request to Staff” attached to the grievance form. The grievance
may assert only the issue of the lack of response to the “Request to Staff.”
See [Doc. No. 38-12] at 9.3 Therefore, his argument that the failure of the prison to respond
prevented him from exhausting his grievances is without merit. Whether these grievances
“either come up lost, or officials simply claim they never received it,” there was an
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Plaintiff does not object to, contradict, or present evidence contradicting this provision as
presented by Defendants.
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available process for Plaintiff to exhaust his remedies.
[Doc. No. 52] at 7. Based on
Plaintiff’s assertions, he admits that he did not pursue exhaustion of his grievances pursuant
to the available provisions of the Grievance Process.
The Court agrees that Plaintiff has failed to meet his burden to overcome
Defendants’ affirmative defense of failure to exhaust and agrees that summary judgment
should be granted to Defendants on all of Plaintiff’s § 1983 claims.
IV.
Improper Resolution of Factual Disputes
Plaintiff asserts that Judge Purcell improperly “attempts to ‘identify’ and resolve
‘factual’ disputes, [sic] and issues.” [Doc. No. 57] at 6. The Court interprets this assertion
as challenging Judge Purcell's findings that Plaintiff failed to: (1) satisfy his burden under
Fed. R. Civ. P. 56(d) to “show[] by affidavit or declaration that, for specified reasons, [he]
cannot present facts essential to justify [his] opposition” to Defendants’ Motion; and, (2)
sufficiently dispute Defendants’ evidence of failure to exhaust. Plaintiff does not identify
any specific error by Judge Purcell in his examination of the factual disputes or issues.
Instead, Plaintiff asserts that:
[t]he Magistrates [sic] Supplemental Report and Recommendation is biased
and in error on several points, clearly with the intent of just rubber stamping
the States [sic] argument and overlooking any and all facts regarding the
Plaintiffs allegations, the sworn affidavits, and declarations submitted with
his Response to the Defendants’ Motion for Summary Judgement [sic].
[Doc. No. 57] at 6.
Upon review of Defendants’ Motion and Plaintiff’s Response, the Court concludes
Judge Purcell's determination that matters put forth by Plaintiff lacked evidentiary support
or were supported only by conclusory statements is correct. As discussed above, Plaintiff
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failed to present sufficient evidence pursuant to Fed. R. Civ. P. 56(d) to justify additional
discovery and failed to present sufficient evidence to survive a motion for summary
judgement pursuant to Fed. R. Civ. P. 56(c). Plaintiff’s general, and conclusory objection
is, likewise, unsupported.
CONCLUSION
For these reasons, the Court finds that Defendants are entitled to summary judgment
on all of Plaintiff’s claims.
IT IS THEREFORE ORDERED that the Supplemental Report and
Recommendation [Doc. No. 62] is ADOPTED. Defendants' Motion for Summary
Judgment [Doc. No. 40] is GRANTED. A final judgment shall be entered in favor of
Defendants and against Plaintiff as to all claims.
IT IS FURTHER ORDERED that Plaintiff's Motion Requesting More Time and
Discovery, and that the Defendants’ Motion for Summary Judgment be Denied [and/or]
Stayed [Doc. No. 47] is DENIED.
IT IS SO ORDERED this 19th day of December 2018.
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