Bailey v. City of Fort Worth Texas et al
Filing
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OPINION AND ORDER GRANTING 15 MOTION FOR SUMMARY JUDGMENT ON THE BASIS OF LACK OF EXHAUSTION: After review and consideration of the summary judgment motion, supporting documents, Bailey's responsive document, and the reply and supporting do cuments, the Court concludes that as Bailey did not exhaust administrative remedies before he filed this suit, the Court will grant the summary-judgment motion. It is therefore ORDERED that defendant Anderson's motion for summary judgment (ECF No. 15) is GRANTED and plaintiff Eimajonone E. Bailey shall take nothing on his remaining claims against defendant Dee Anderson, and such claims are DISMISSED WITH PREJUDICE. (Ordered by Judge Reed C O'Connor on 9/2/2014) (mdf)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
EIMAJONONE E. BAILEY
(TDCJ No. 1794293)
VS.
DEE ANDERSON, Sheriff,
Tarrant County, Texas, et al.
§
§
§
§
§
§
CIVIL ACTION NO.4:13-CV-663-O
OPINION AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
ON THE BASIS OF LACK OF EXHAUSTION
Now pending is the motion for summary judgment of defendant Dee Anderson on the ground
that Plaintiff Eimajonone E. Bailey failed to exhaust administrative remedies prior to filing this suit.
Anderson’s Mot. Summ. J, ECF No. 15. After review and consideration of the summary judgment
motion, supporting documents, Bailey’s responsive document, and the reply and supporting
documents, the Court concludes that as Bailey did not exhaust administrative remedies before he
filed this suit, the Court will grant the summary-judgment motion.
I. BACKGROUND
Plaintiff Bailey, a former Tarrant County Jail inmate, brought this suit under 42 U.S.C. §
1983 on August 15, 2013, while he was an inmate of the Texas Department of Criminal Justice
(TDCJ)-Correctional Institution Division, alleging that he received improper or inadequate medical
care while he was confined in the Tarrant County Jail that resulted in injury and/or pain and suffering
and for which he now seeks compensatory damages. Compl. § V. Bailey asserted different claims
against several other defendants, but all other claims and defendants were dismissed under authority
of 28 U.S.C. §§ 1915A and 1915(e)(2)(B), by order entered on September 5, 2013. The Court then
ordered Bailey to file a more definite statement as to his remaining claim against Dee Anderson, and
after review of Bailey’s more definite statement, the Court allowed service of Bailey’s remaining
claim upon Anderson. Anderson entered an appearance by filing this preliminary motion for
summary judgment.
II. SUMMARY JUDGMENT EVIDENCE
Defendant Anderson incorporated a brief in support within the summary judgment motion.
In an appendix in support of the motion, Defendant provided the November 18, 2013 affidavit of
Tarrant County Jail Executive Chief Deputy Robert Knowles (Exhibit A, DA 1-5), along with a
Tarrant County Jail book-in registration card (Attachment 1, DA 7); an Acknowledgment Receipt
of Jail Regulations signed by Bailey (Attachment 2, DA 9); a portion of the Tarrant County Jail
Inmate Handbook (Attachment 3, DA 11-12); Tarrant County Jail records relating to the transfer of
Bailey from the jail to John Peter Smith Hospital (Attachment 4, DA 14-37); Tarrant County Jail
Classification records regarding Bailey’s housing assignment (Attachment 5, DA 36-38); Tarrant
County Jail Visitor Log for Bailey (Attachment 6, DA 40-41); and an April 2012 Inspection Report
of the Tarrant County Jail by the Texas Commission on Jail Standards (Attachment 7, DA 43-46).
The appendix also included as Exhibits B and C (DA 47-57), records of the basis for Bailey’s
incarceration, and as Exhibit D (DA 58-61), a copy of a publication from the National Institute of
Health regarding urinary catheters. Anderson’s App., ECF No. 16, at 1-67.
Bailey filed a response to the motion for summary judgment and he declared “under penalty
of perjury that the allegations presented to this Honorable Court are true to the best of his ability.”
Bailey’s Resp., ECF No. 19, at 1-4. Section 28 U.S.C. § 1746 permits unsworn declarations to
substitute for an affiant’s oath if the statements made therein are made “under penalty of perjury”
and verified as “true and correct.” 28 U.S.C. § 1746 (West 2006). The Court will consider Bailey’s
statements in the response as summary judgment evidence. Also Bailey declared “under penalty of
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perjury” that both his complaint and more definite statement were “true and correct.” Compl. at 6,
ECF No. 1; More Definite Statement, at 5, ECF No. 10. Thus, the Court will review Bailey’s
pleadings as well. See Nissho-Iwai American Corp. v. Kline, 845 F.2d 1300, 1306 (5th Cir. 1989).
Anderson also filed a January 2, 2014 Supplemental Affidavit of Knowles, and a copy of a petition
and receipt for a lawsuit filed by Bailey raising similar claims in the 96th Judicial District Court of
Tarrant County, Texas. Anderson Reply, ECF No. 20, at 7-13.
III. SUMMARY JUDGMENT STANDARD
When the record establishes “that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law,” summary judgment is appropriate. Fed. R. Civ.
P. 56(a). “[A dispute] is ‘genuine’ if it is real and substantial, as opposed to merely formal,
pretended, or a sham.” Bazan v. Hidalgo Cnty., 246 F.3d 481, 489 (5th Cir. 2001)(citation omitted).
A fact is “material” if it “might affect the outcome of the suit under governing law.”Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
To demonstrate that a particular fact cannot be genuinely in dispute, a defendant movant must
(a) cite to particular parts of materials in the record (e.g., affidavits, depositions, etc.), or (b) show
either that (1) the plaintiff cannot produce admissible evidence to support that particular fact, or (2)
if the plaintiff has cited any materials in response, show that those materials do not establish the
presence of a genuine dispute as to that fact. Fed. R. Civ. P. 56(c)(1). Although the Court is required
to consider only the cited materials, it may consider other materials in the record. See Fed. R. Civ.
P. 56(c)(3). Nevertheless, Rule 56 "does not impose on the district court a duty to sift through the
record in search of evidence to support a party's opposition to summary judgment. . . ." Skotak v.
Tenneco Resins, Inc., 953 F.2d 909, 915-16 & n.7 (5th Cir. 1992). Instead, parties should "identify
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specific evidence in the record, and . . . articulate the 'precise manner' in which that evidence
support[s] their claim." Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) (citing Topalian v.
Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992) (other citation omitted)). In evaluating whether
summary judgment is appropriate, the Court “views the evidence in the light most favorable to the
nonmovant, drawing all reasonable inferences in the nonmovant’s favor.” Sanders-Burns v. City of
Plano, 594 F.3d 366, 380 (5th Cir. 2010) (citation omitted)(internal quotation marks omitted).
“After the non-movant [here, Plaintiff] has been given the opportunity to raise a genuine factual
[dispute], if no reasonable juror could find for the non-movant, summary judgment will be granted."
Byers v. Dallas Morning News, Inc., 209 F.3d 419, 424 (5th Cir. 2000)(citing Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986)).
IV. ANALYSIS-Lack of Exhaustion
Defendant Anderson argues in the motion for summary judgment that Bailey failed to exhaust
his administrative remedies prior to filing suit as required under 42 U.S.C. § 1997e(a). That statute
provides that “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. §
1983], 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.A. §
1997e(a)(West 2012). In Booth v. Churner, 532 U.S. 731 (2001), the Supreme Court held that
Congress intended a prisoner to invoke whatever administrative grievance remedies are available
within a jail or prison, without regard to whether the grievance procedure affords money-damage
relief, before he may file suit contesting prison conditions in federal court. Booth, 532 U.S. at 73841. The Supreme Court later clarified that the 1997e(a) exhaustion requirement “applies to all inmate
suits about prison life, whether they involve general circumstances or particular episodes, and
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whether they allege excessive force or some other wrong.”Porter v. Nussle, 534 U.S. 516, 532
(2002). As the United States Court of Appeals for the Fifth Circuit has explained:
Quibbles about the nature of a prisoner’s complaint, the type of remedy sought, and
the sufficiency or breadth of prison grievance procedures were laid to rest in Booth.
Justice Souter summed up the Court’s conclusion in a footnote:
Here, we hold only that Congress has provided in § 1997e(a) that an
inmate must exhaust irrespective of the forms of relief sought and
offered through administrative avenues.
Wright v. Hollingsworth, 260 F.3d 357, 358 (5th Cir. 2001) (citing Booth, 532 U.S. at 741 n. 6).
Then in Jones v. Bock, 549 U.S. 199 (2007), although the Supreme Court recognized for the first
time that lack of administrative exhaustion was an affirmative defense, the Court expressly
reaffirmed that “[t]here is no question that exhaustion is mandatory under the PLRA and that
unexhausted claims cannot be brought in court.” Id. at 211, 212-17.
The Supreme Court has also determined that a prisoner cannot bring an action in court
regarding prison conditions until the prisoner “properly exhausts” his administrative remedies. See
Woodford v. Ngo, 548 U.S. 81 (2006). Proper exhaustion under § 1997e(a) means that the inmate
must complete whatever administrative review steps are provided in accordance with the applicable
procedural rules, without any exception for untimely, unavailable, or procedurally defective attempts
at exhaustion. Id. at 90-94. It does not include “untimely or otherwise procedurally defective
administrative grievances] or appeal[s].” Id. at 83-84. This exhaustion requirement gives corrections
officials time and opportunity to address complaints internally before allowing initiation of a federal
case, which results in a reduction in the volume of prisoner suits, an improvement in the quality of
prisoner suits, and an administrative record that is helpful to the court. Id. at 89-90, 93-94. The Fifth
Circuit has more recently stated:
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This court has taken a strict approach to the exhaustion requirement. Dillon v.
Rogers, 596 F.3d 260, 268 (5th Cir. 2010). Proper exhaustion is required, meaning
that the inmate must not only pursue all available avenues of relief but must also
comply with all administrative deadlines and procedural rules. Woodford v. Ngo, 548
U.S. 81, 90-91 (2006).
Lindsey v. Striedel, 486 F. App’x 449, 452 (5th Cir. 2012) (citing Woodford, 548 U.S. at 90-91).
“Where any administrative process remains uncompleted, the requirements of the PRLA are not met,
and dismissal is proper.” Nottingham v. Richardson, 499 F. App’x 368, 373 (5th Cir. 2012)(citations
omitted). After the Supreme Court held that exhaustion was an affirmative defense, the Fifth Circuit
explained that: “When the defendant raises exhaustion as an affirmative defense, the judge should
usually resolve disputes concerning exhaustion prior to allowing the case to proceed to the merits.”
Dillon, 596 F.3d at 273.
Plaintiff was a prisoner in the TDCJ-Correctional Institutions Division on the date he filed
this § 1983 form complaint. Plaintiff had been an inmate incarcerated in the Tarrant County Jail
before he was transferred to TDCJ on July 16, 2012. DA 2, ¶ 3; 7. After entering a guilty plea in the
372nd Judicial District Court of Tarrant County, Texas, on May 30, 2012, Plaintiff Bailey was taken
into custody by the Tarrant County Sheriff’s Department. DA 2, 7; DA 47-56. Inmate Bailey was
incarcerated continuously in the Tarrant County Jail from May 30, 2012, until July 16, 2012, when
he was transferred to TDCJ. DA 2, ¶ 3. During his jail confinement, Bailey was not in isolation and
was assigned to the infirmary within the Corrections Center. Knowles January 2, 2014 Supplemental
Aff., ¶ 3. Jail records show that Bailey was transferred from the jail infirmary to John Peter Smith
(JPS) Hospital on June 12, 2012, and returned that same day, after evaluation and treatment for blood
in his urine, scrotal edema and urethral trauma and insertion of a Foley catheter. DA 3, ¶ 72; DA 1416, 28-29, 34. Bailey was again transferred from the jail infirmary to JPS Hospital on June 22, 2012,
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and returned on July 10, 2012, after he was given treatment for a urinary tract infection. DA 3, ¶ 7;
DA 17-23, 32.
In the form complaint filed in this case, to the question “Have you exhausted both steps of
the grievance procedure in this institution?” Plaintiff checked “Yes.” Compl. § III. He did not,
however, attach copies of a grievance or appeal or any response from the Tarrant County Jail
administration showing a completely appealed grievance. Instead, he stated he “Completed 11.07
Habeas Appeal, See exhibit (1)(A).” But Plaintiff’s “exhibit (1)(A)” consists of two postcard notices
from the Clerk of the Texas Court of Criminal Appeals regarding Plaintiff’s Application for Writ
of Habeas Corpus filed in Case Number WR-79,708-01 pursuant to the Texas Code of Criminal
Procedure, Article 11.07. Compl. at 8; DA 52-54. Plaintiff referred to these same exhibits in
responding to the Court’s question in the Order for More Definite statement directing him to “state
what administrative steps [he] took to resolve any claim against Dee Anderson within the Tarrant
County jail administrative review process and the outcome.” September 5, 2013 Order, ¶ 5, ECF No.
9; September 26, 2013 More Definite Statement, ¶ 5, ECF No. 10. The procedure for filing a state
court application for a writ of habeas corpus under article 11.07 of the Texas Code of Criminal
Procedure, referenced by Plaintiff, is not a part of the Tarrant County Jail Inmate Grievance
Procedure and the denial by the Texas Court of Criminal Appeals of his article 11.07 application did
not fulfill the requirements of 42 U.S.C. § 1997e.
Instead, the defendant has provided evidence that at that time of the complained of events,
the Tarrant County Jail had an administrative inmate grievance process, as set forth in the Tarrant
County Jail Inmate Handbook. DA 2-3,4 ¶¶ 5-7, DA 011-12. The grievance procedure included an
appeal to an Inmate Grievance Appeal board, and then further to the Sheriff or his designee. DA 12.
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See generally Coffer v. Tarrant County, Texas, 2005 WL 1314000, at *2 (N.D. Tex. May 31, 2005)
(Means, J.) (holding that for a conditions of confinement claim arising in the Tarrant County Jail,
inmate must complete available appeal step beyond initial grievance). The procedure also included
a special provision for a grievance that could be deemed an emergency. The handbook provides:
To file a grievance you must send a written statement directly to the Grievance Unit
in a sealed envelope marked Grievance. You may obtain a Grievance Form and
envelope from the Housing Officer. Where undue delay could reasonably result
in inmate or staff members being subjected to personal injury or other damages,
you shall write “Emergency Grievance” on the face of the envelope. NOTE: A
grievance marked as “Emergency” shall be investigated by a supervisor to assess the
emergency and process accordingly.
DA 3, ¶ 6; DA 12 (emphasis in original). In his initial Affidavit, Knowles, referring to the Handbook
receipt form signed by Bailey when he was booked into the jail on May 30, 2012, explains: “Mr.
Bailey’s signature and thumb print on the receipt form documents that he was provided with a copy
of the inmate handbook on that date.” DA 2, ¶ 5; DA 9. Plaintiff was on notice and knew or should
have known that he could file and appeal grievances. Bailey also had the opportunity in face-to-face
contacts with corrections officers to ask any questions regarding grievance filing and appeal
procedure. DA 2, ¶ 5. Plaintiff never used or exhausted the Tarrant County Jail grievance procedure
by submitting a grievance to the Grievance Board or appealing a grievance concerning medical care
to the Grievance Appeal Board and the Sheriff (or his designee) before or after filing suit. DA 3, ¶
7.
In his response to Anderson’s motion for summary judgment, Bailey writes that as he was
in either the infirmary or at JPS hospital during the relevant time period, he should be allowed to
pursue his § 1983 claims even though he did not use or exhaust the Jail’s grievance procedures.
Bailey Resp. at 1. He writes that “if a prisoner does not file a grievance because he is unable to
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obtain grievance forms, no administrative remedy is in fact ‘available’”; and “the Plaintiff in a 1983
action is not required to exhaust the ‘available’ state remedies . . . if state remedies will not solve
issues or pre-determined responses that are set will hinder action.” Id.
The exhaustion requirement may be excused when administrative remedies are not available.
In Days v. Johnson, 322 F.3d 863, 867 (5th Cir. 2003), implicitly overruled on other grounds, Jones
v. Bock, 549 U.S. 199, 214-15 (2007), the Fifth Circuit excused the exhaustion requirement where
the inmate was unable to file grievances because of a broken hand (physical injury) and then had
later attempts to file grievances rejected as untimely. Id. at 866-67. The Fifth Circuit held that under
those circumstances, the exhaustion requirement was excused, but stated that “the holding was
limited to the narrow facts of this case.” Id. at 867. While it is a question of law whether
administrative remedies qualify as “available” under § 1997e(a), availability sometimes turns on
questions of fact. Dillon, 596 F.3d at 266.
The Fifth Circuit has applied the ordinary dictionary definition of “‘available’ as, among
other things, ‘immediately utilizable,’ and ‘that is accessible or may be obtained: personally
obtainable.’” Days v. Johnson, 322 F.3d 863, 867 (5th Cir. 2007) (quoting Webster’s New
International Dictionary 150 (3d ed. 1981)); see also Manemann v. Garrett, 484 F. App’x 857, 858
(5th Cir. 2012) (dismissing claims under § 1983 for lack of exhaustion where Llano County
defendants “met their burden of showing that a grievance policy existed and that it was accessible”
to inmate plaintiff claiming inadequate medical care). And, in Ferrington v. La. Dept. Of
Corrections, 315 F.3d 529 (5th Cir. 2002), an inmate alleged he should be excused from exhausting
his administrative remedies because he was blind. Id. at 529. The Fifth Circuit concluded that his
alleged blindness did not prevent him from filing his lawsuit, appealing a disciplinary hearing or
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filing other grievances, and thus determined his blindness could not have prevented him from
exhausting his available administrative remedies. Id. at 532. An administrative remedy is not
“unavailable simply because a prisoner has not timely or properly filed a grievance and is
consequently later bared from seeking further administrative relief.” Dillon, 596 F.3d at 267 n. 1
(citing Woodford, 548 U.S. at 843-84).
The undisputed facts establish that administrative remedies were available to Plaintiff.
Plaintiff offers no explanation as to why he could not pursue those remedies while in the infirmary
or hospital. Moreover, there is nothing in the record to suggest that exhaustion would have been
futile, or that the grievance procedure was unavailable to Bailey due to his illness, his hospitalization
or any other reason. Chief Deputy Knowles’s supplemental affidavit provides:
Jail records show that Mr. Bailey was hospitalized at John Peter Smith Hospital for
19 days of the total 47 days of his confinement in the Tarrant County Jail in 2012.
During his confinement, Mr. Bailey was not in isolation at any time and when not
hospitalized at JPS, he was assigned to the Jail Infirmary located in the Corrections
Center. Inmates assigned to the Jail Infirmary or who are hospitalized have the same
rights and privileges as inmates assigned to general population areas with respect to
filing of grievances and are permitted to submit grievances concerning medical care
and treatment. An inmate’s assignment to the Infirmary is based on the
recommendation of medical personnel and allows more extensive medical care and
treatment than available to general population inmates. Inmates assigned to the
Infirmary have regular, daily contact with detention officers and may request a
grievance from directly from detention officers. Inmates who are hospitalized have
a detention officer assigned to guard them around the clock (24/7). My review of Mr.
Bailey’s jail records does not indicate that the circumstances of his confinement or
his physical or mental condition during the time that he was assigned to the Infirmary
or while hospitalized at John Peter Smith Hospital would have prevented him from
submitting grievances regarding his medical care or medical treatment. There is no
indication in Mr. Bailey’s jail records that he at any time requested a grievance form
and his request was refused or jail staff in any way interfered with his right to submit
a grievance.
Supplemental Knowles Aff., ¶ 3, ECF No. 20. The medical summary dated June 22, 2012, records
that Bailey was “oriented to person, place, and time.” DA 22. Bailey claims in his more definite
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statement that on June 19, 2012, “medical staff . . . used a ‘Foley Catheter’ [and] attempted to force
it into the urethra causing severe pain and bleeding . . . ”; and he further states that on June 20, he
was transported to JPS Hospital ER and remained there until July 10, 2012. Jail records also show
that during the period of hospitalization, Bailey had ten visits from family members. DA 40-41.
Nothing suggests that Bailey was unable or prevented during this same time from filing a grievance
concerning his medical care. See generally Manemann, 484 F. App’x at 858 (“Nothing in the record
before us suggests that Mannemann ever asked for information about filing a grievance and was
refused such information or was given incorrect information”).
Bailey was required, as an inmate in the Tarrant County Jail, to exhaust administrative
remedies on his claim through all levels of the Tarrant County jail inmate grievance procedure before
filing this suit in federal court. Defendant Anderson has come forward with evidence showing Bailey
did not initiate or complete the grievance process. Further, Anderson has presented evidence that
even while Bailey was in the infirmary or JPS Hospital, he could have initiated the grievance
process. A nonmoving party’s opposition to a motion for summary judgment must consist of more
than mere unsupported allegations or denials and must be supported by competent evidence, setting
forth specific facts. Fed. R. Civ. P. 56(e)(3); see Celotex Corp., 477 U.S. at 324. Bailey has not come
forward with evidence that meets this standard and would permit a reasonable fact finder to decide
in his favor. In sum, the Court concludes that Bailey has not completed the required administrativeremedy process before commencing this suit. Therefore, Defendant Anderson’s motion for summary
judgment must be granted on the basis of lack of exhaustion.
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ORDER
It is therefore ORDERED that defendant Anderson’s motion for summary judgment (ECF
No. 15) is GRANTED and plaintiff Eimajonone E. Bailey shall take nothing on his remaining
claims against defendant Dee Anderson, and such claims are DISMISSED WITH PREJUDICE.
SO ORDERED this 2nd day of September, 2014.
_____________________________________
Reed O’Connor
UNITED STATES DISTRICT JUDGE
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