Shrum et al v. Riker et al

Filing 56

REPORT AND RECOMMENDATION: The Magistrate Judge recommends that defts' 53 Motion for Summary Judgment be GRANTED and that all of pltf Josh Malcolm's claims in this matter be DISMISSED without prejudice for failure to exhaust administrative remedies. Signed by Magistrate Judge Joe Brown on 5/9/12. (xc:Pro se party by regular and certified mail.)(rd)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
JAMES SHRUM and JOSH MALCOLM,
Plaintiffs
v.
ADRIEL RIKER and SONYA TROUTT,
Defendants

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NO. 3:11-0938
Judge Trauger/Brown
Jury Demand

TO: THE HONORABLE ALETA A. TRAUGER
REPORT AND RECOMMENDATION
The Defendants in this case have filed a motion for
summary judgment as to all claims of the Plaintiff Josh Malcolm
(Docket Entry 53).

For the reasons stated below, the Magistrate

Judge recommends that this motion be GRANTED and that the complaint
insofar as it relates to Josh Malcolm be DISMISSED without prejudice.
The claims by James Shrum will remain.
BACKGROUND
The amended complaint (Docket Entry 34) is the operative
document in this case.

In his complaint the Plaintiff alleged

violations of 42 U.S.C. § 1983, because of the excessive use of
force violated the Plaintiff’s due process, and because undue
administrative segregation constituted violations of the Eighth and
Fourteenth Amendment of the Constitution.

The Plaintiff also

allege the torts of assault and battery and negligence when he was
placed in confinement and then denied access to a writeup. He also
allege that he was denied the right to defend himself verbally,

which he claims constitutes a violation of the First Amendment free
expression clause.
The Plaintiff alleges that on June 26, 2011, while his
pad was on a water restriction he asked to speak to the Sargent on
duty and was told that Sargent Riker was not willing to speak to
him.

He alleges that a couple of hours later, when Sargent Riker

did come by, he became involved in a verbal conflict with Sargent
Riker.

He alleges that Sargent Riker directed him to back himself

to the pie flap of the door and be cuffed, and when he asked where
they were being taken and why, Sargent Riker opened the pie flap
and using a case of Freeze sprayed both Plaintiffs three times.
The Plaintiff states that he did not break any rules or regulations
and that there was no justification for being sprayed with Freeze.
Plaintiff Malcolm alleges that he asked for medical
treatment and his request was denied. He states that he was placed
in a restraint chair and a fan was blowing on him to allow the
chemical freeze to dry on him.

Plaintiff Malcolm alleges that his

lungs were burning and it was hard to breathe.

Despite this he was

denied medical treatment and left in physical pain.

He further

alleges that after an hour in the restraint chair he requested the
use of the bathroom and was denied this use.

Because of this he

urinated on himself twice over the next several hours.

He states

that this caused additional physical pain and that he was forced to
sit in his bodily fluids for several hours.

2

He further alleges

that the officers made fun of him because of this. Both Plaintiffs
were taken to segregation on orders of the Defendant Troutt.
The Plaintiff alleges that he was placed in segregation
without receiving a writeup of why he was placed in segregation and
that he never received a disciplinary hearing about the matter.
The Plaintiff alleges that he had exhausted his administrative
remedies with respect to all claims and all Defendants.
The Defendants filed an answer to this complaint (Docket
Entry

52).

In

their

answer,

while

admitting

the

Court

has

jurisdiction, they denied the Plaintiff had stated a valid cause of
action for any of their claims. Affirmative Defense 2 alleges that
the Plaintiff had failed to exhaust his administrative remedies and
that his complaint should be dismissed.

Contemporaneous with the

answer the Defendants filed a motion for summary judgment (Docket
Entry 43) supported by a memorandum of law and a statement of
uncontested facts (Docket Entries 54 and 55).
Attached to Defendants’ motion is the affidavit of Sonya
Troutt.1

In her affidavit Ms. Troutt states that she was the jail

administrator during the time of Plaintiff Malcolm’s incarceration
at the Sumner County Jail.

She states that she has both personal

and firsthand knowledge of the contents of the affidavit, as well
as the grievance procedure at the Sumner County Jail.

She states

that during the time the Plaintiff was incarcerated at Sumner

1

Affidavits should be filed as a separate exhibit.

3

County from December 10, 2004 through August 23, 2011, the jail had
a grievance policy, which was in a handbook given to every inmate,
including the Plaintiff.

She states that the Plaintiff never sent

a grievance regarding the allegations filed in his complaint,
specifically no grievance alleging excessive use of force by
Sargent Riker, being refused medical care, or being placed in
segregation, and alleged violations of his rights. She states that
the Plaintiff is fully familiar with the grievance kiosk machine,
as he filed 61 grievances while incarcerated in the Sumner County
Jail.
As Exhibit 2 to the motion the Defendants have attached
the Plaintiff’s jail grievances and medical file–some 114 pages of
documents.

The Defendants also filed the Defendants’ concise

statement of undisputed facts (Docket Entry 55). The Plaintiff has
made no response to this statement and, accordingly, the Magistrate
Judge will consider the statement as admitted for the purpose of
this Report and Recommendation.
In particular, Statement 4 shows that while incarcerated
in Sumner County Jail, Plaintiff filed 61 grievances; Statement 5,
that Plaintiff did not exhaust his administrative remedies prior to
filing this lawsuit; Statement 6, that Plaintiff knew how to file
a grievance.
This case is under a scheduling order (Docket Entry 43).
It specifically warns the Plaintiff at page 4 that dispositive

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motions must be responded to within 30 days, absent an extension by
the Court, and that failure to respond to the motion and statement
of facts may result in the Court taking the facts alleged in the
matter as true and granting the relief requested.

The Plaintiff

was also advised that he may not just rely on the complaint.

The

Plaintiff must show that there is a material dispute of fact with
citation to the record, affidavits or other matter of evidence.
Despite this warning the Plaintiff, as of the date of
this Report and Recommendation, has failed to respond in any way to
the motion for summary judgment and, accordingly, the motion is
unopposed.
LEGAL DISCUSSION
Although the motion is unopposed the Magistrate Judge
must nevertheless review the record to insure that the Defendants
have shown that they are entitled to relief requested.
The Magistrate Judge has applied the well-known summary
judgment standard as set out in Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986) and will not repeat it here.

The Prison

Litigation Reform Act 1995 (PLRA) is clear that an inmate must
exhaust all of his administrative remedies prior to bringing a
federal lawsuit.

42 U.S.C. 1997(e)(a).

The Defendants cite the

case of Sullivan v. Hart, 2006 U.S. LEXIS 51120 *6-7 (E.D. Tenn.
July 25, 2006) as requiring that prisoners show they had exhausted
their

administrative

remedies

by

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attaching

a

copy

to

their

complaint. This case and other similar cases were overruled by the
Supreme Court decision in Jones v. Bock, 549 U.S. 199 (2007), where
the Court overruled a number of Sixth Circuit requirements in this
area.

They specifically rejected the Sixth Circuit procedure that

a prisoner/plaintiff must attach copies of the grievance form to
his complaint and specifically plead exhaustion. Jones at 215-16.
The Court specifically held at Page 212 that failure to
exhaust administrative remedies is an affirmative defense and under
Rule 8 of the Federal Rules of Civil Procedure need not be
established by a Plaintiff in the original complaint.2
That having been said, the Defendants in this case have
clearly raised the lack of exhausting administrative remedies as an
affirmative defense.

They have supported that contention by the

affidavit of the jail administration, and have placed it in a
statement of facts to which the Plaintiff has not responded.

The

Magistrate Judge thus believes that, in fact, the Defendants have
established

that

the

Plaintiff

has

failed

to

exhaust

his

administrative remedies in this litigation. Dismissal is therefore
appropriate.

See Risher v. Lappin, 639 F.3d 236, 240 (6th Cir.

2011).
RECOMMENDATION
For

the

reasons

stated

above,

the

Magistrate

Judge

recommends that all of Plaintiff Malcolm’s claims in this matter be

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The Magistrate Judge would suggest that counsel for the Defendants
read the Jones v. Bock case and amend their future motions accordingly.

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DISMISSED without prejudice for failure to exhaust administrative
remedies.3
Under Rule 72(b) of the Federal Rules of Civil Procedure,
any

party

has

14

days

from

receipt

of

this

Report

and

Recommendation in which to file any written objections to this
Recommendation with the District Court.

Any party opposing said

objections shall have 14 days from receipt of any objections filed
in this Report in which to file any responses to said objections.
Failure to file specific objections within 14 days of receipt of
this Report and Recommendation can constitute a waiver of further
appeal of this Recommendation.

Thomas v. Arn, 474 U.S. 140 106 S.

Ct. 466, 88 L.Ed.2d 435 (1985), Reh’g denied, 474 U.S. 1111 (1986).
ENTERED this 9th day of May, 2012.
/S/ Joe B. Brown
JOE B. BROWN
United States Magistrate Judge

3

The Magistrate Judge would note that even though the recommendation
is for dismissal without prejudice, as a practical matter whether it is
with or without prejudice is of no practical import since the time period
within which a grievance could be filed expired long ago. Nevertheless
the disposition should be correctly stated. Local Union 369 v. ADT, 393
F. App’x 290, 294-295 (6th Cir. 2010).

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