George v. Snearly et al

Filing 56

MEMORANDUM OPINION AND ORDER granting 52 MOTION for Summary Judgment for Failure to Exhaust Administrative Remedies, denying 53 MOTION to Enforce To Comply with a Full Disclosure. This action is dismissed with prejudice. (Signed by Judge Sim Lake) Parties notified.(gclair, 4)

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United States District Court Southern District of Texas ENTERED IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION TYRONE EUGENE GEORGE, TDCJ #1905218, § § § § § § § § § § § Plaintiff, v. JUSTIN L. SNEARLY and STACY W. STEWART, Defendants. February 02, 2017 David J. Bradley, Clerk CIVIL ACTION NO. H-15-3092 MEMORANDUM OPINION AND ORDER State inmate Tyrone Eugene George (TDCJ #1905218) has filed an amended complaint under 42 U.S. C. § 1983 ("Amended Complaint") (Docket Entry No. 10), alleging that his civil rights were violated at the Ellis I Unit of the Texas Department of Criminal Justice ( "TDCJ") . The only claims that remain in this case concern allegations that Officer Justin L. Snearly and Sergeant Stacy W. Stewart used occasions. excessive force against George on two separate Pending before the court is Defendants Snearly and Stewart's Motion for Summary Judgment for Administrative Remedies ("Defendants' MSJ") Failure to Exhaust (Docket Entry No. 52) . George has filed Plaintiff's Response to Defendants['] Motion for Summary Judgment No. 54). are ("Plaintiff's Response to MSJ") (Docket Entry George has also filed Plaintiff's Demand that Defendants Ordered, Disclosure and (Docket Enforced, Entry By No. Court 53), to which Comply seeks With a Full discovery of disciplinary, classification, and grievance records associated with the entire length of George's incarceration by TDCJ. After considering all of the pleadings, the court will grant Defendants' MSJ and will dismiss this case for the reasons explained below. I. As noted above, Background the only defendants who remain in this case are Officer Snearly and Sergeant Stewart. 1 George contends that Officer Snearly used excessive force against him in May of 2015 2 by grabbing him around the neck in a "choke hold," slamming him on his bunk, and punching him in the face and head. 3 As a result of this incident George reportedly suffers from "neck aches" and "dizzy spells." 4 1 Claims lodged by George initially against Sergeant C. Gaylord, Medical Supervisor P. Pace, and Officer L. Uche were severed and transferred to another district (Docket Entry No. 11). Claims against Physician's Assistant Brenda Armstrong were dismissed under Rule 12(b) (1) and 12(b) (6) of the Federal Rules of Civil Procedure (Docket Entry No. 44). 2 The pleadings do not clearly establish when the alleged use of force occurred. See Amended Complaint, Docket Entry No. 10, p. 4; Plaintiff's More Definite Statement for Defendant B. Armstrong, Docket Entry No. 37, p. 1 (estimating that George was denied medical care after the assault in or around July or August of 2015) . A grievance submitted by George following the incident indicates that it happened, if at all, in May of 2015. See Step 1 Grievance #2015149188, Exhibit A to Defendants' MSJ, Docket Entry No. 52-1, pp. 9-10. 3 Plaintiff's More Definite Statement, pp. 1-2. 4 Id. at 4. -2- Docket Entry No. 17, George contends that Sergeant Stewart used excessive force against him in June of 2015 by slamming his hand in the food tray slot of his cell door. 5 As a result of this incident George reportedly sustained an injury to his left wrist and the index and middle fingers of his left hand. 6 George seeks monetary damages for violation constitutional rights under the Eighth Amendment. 7 of his Snearly and Stewart move for summary judgment on the grounds that George did not exhaust available administrative remedies before filing suit as required by the Prison Litigation Reform Act, 42 U.S.C. II. The defendants' § 1997e(a). Standard of Review motion for summary judgment is governed by Rule 56 of the Federal Rules of Civil Procedure. Under this rule a reviewing court "shall grant summary judgment 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 also Celotex Corp. v. Catrett, 106 S. Ct. 2548, 2552 (1986). A fact is "material" if its resolution in favor of one party might affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 106 S. Ct. 2505, 2510 (1986). 5 Id. at 2. 6 Id. at 4-5. 7 Id. -3- An issue is "genuine" if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party. In deciding a summary judgment motion, Id. the reviewing court must "construe all facts and inferences in the light most favorable to the nonmoving party." Cir. 2010) However, (internal Dillon v. Rogers, 596 F.3d 260, 266 (5th citation and quotation marks omitted) . the non-movant cannot avoid summary judgment simply by presenting "' [c]onclusional allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation. '" Jones v. Lowndes County, Mississippi, 344, 348 (5th Cir. 2012) 678 F.3d (quoting TIG Ins. Co. v. Sedgwick James of Washington, 276 F.3d 754, 759 (5th Cir. 2002)); see also Little v. Liguid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en bane) (a non-movant cannot demonstrate a genuine issue of material fact with conclusory allegations, scintilla of evidence) . a genuine issue of unsubstantiated or only a If the movant demonstrates the absence of material non-movant to provide assertions, fact, the burden shifts to the "'specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp,, 106 S. Ct. 1348, 1356 (1986). The plaintiff proceeds pro se in this case. Courts construe pleadings filed by pro se litigants under a less stringent standard than those drafted by lawyers. 5941 596 (2007) (1972); ( "A See Haines v. see also Erickson v. document filed pro -4- se Kerner, Pardus, is 92 S. Ct. 551 U.S. 'to be 89, 94 liberally construed [.] '") (quotation omitted) . Nevertheless, "pro se parties must still brief the issues and reasonably comply with procedural rules] " 1995). Grant v. Cuellar, 59 F.3 523, 524 [federal (5th Cir. The Fifth Circuit has held that "[t]he notice afforded by the Rules of Civil Procedure and the local rules" is "sufficient" to advise a pro se party of his burden in opposing a judgment motion. summary See Martin v. Harrison County Jail, 975 F.2d 192, 193 (5th Cir. 1992). III. Exhaustion of Administrative Remedies This case is governed by the Prison Litigation Reform Act (the "PLRA"), which requires prisoners to exhaust administrative remedies before § 1997e (a) . § 1997e(a) filing suit in federal The Supreme Court has court. See 42 U.S.C. repeatedly emphasized that mandates exhaustion of all administrative procedures before an inmate can file any suit challenging prison conditions. See Booth v. Nussle, 2378, 122 S. Ct. 2382-83 918-19 Churner, (2007) 121 S. 983, (2006); 988 Ct. 1819, (2001); (2002); Woodford v. Ngo, see also Jones v. (confirming 1825 that "[t] here Bock, is Porter v. 126 S. Ct. 127 S. no Ct. 910, question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court"). TDCJ has a formal two-step administrative grievance process. See Johnson v. Johnson, 385 F.3d 503, 515 (5th Cir. 2004); see also Wendell v. Asher, 162 F.3d 887, 891 (5th Cir. 1998) -5- (outlining the two-step procedure, which at Step 1 entails submitting an administrative grievance at the institutional level followed by a Step 2 appeal if the result is unfavorable) . A Step 1 grievance, which is reviewed by officials at the inmate's assigned facility, must be filed within challenged event. fifteen See Johnson, days of the alleged 385 F.3d at 515. incident or Once an inmate receives a response to his Step 1 grievance, he then has ten days to file a Step 2 grievance to appeal an unfavorable result at the state level. See id. Substantial compliance with this process is not enough to exhaust remedies under the PLRA. 596 F.3d 260, 268 (5th Cir. 2010) Dillon v. Rogers, ("Under our strict approach, we have found that mere 'substantial compliance' with administrative remedy procedures does not satisfy exhaustion.") . A Texas prisoner must to pursue a grievance exhaustion requirement. through both See Johnson, 385 Wright v. Hollingsworth, 260 F.3d 357, 358 The defendants have a provided steps F. 3d at satisfy 515 the (citing (5th Cir. 2001)). record of George's administrative grievances for the period of time relevant to his claims in this case. 8 On May 27, 2015, George filed a Step 1 Grievance to challenge a disciplinary conviction that he received for assaulting Officer Snearly. 9 In that grievance, which 8 Business Records Affidavit of Manager of Offender Grievance Kelli Ward, Exhibit A to Defendants' MSJ, Docket Entry No. 52-1, p. 2. 9 Step 1 Grievance #2015149188, Exhibit A to Defendants' MSJ, Docket Entry No. 52-1, pp. 9-10. -6- primarily challenged the result of the disciplinary proceeding, George alleged that Snearly placed George in a choke hold and dragged him to the medical department while George was in a semiconscious state. 10 After finding that there was sufficient evidence to support the hearing officer's decision, upheld the conviction without addressing an assistant warden George's claim that unnecessary force was used. 11 On June 26, 2015, George filed a Step 1 Grievance alleging that Sergeant Stewart slammed his left hand repeatedly in the food tray slot of his cell. 12 This grievance was returned to George unprocessed because he did not comply with prison procedures. 13 On July 29, 2015, and August 5, 2015, George filed additional Step 1 Grievances that contain vague references to his claims that Defendants Snearly and Stewart used excessive force against him. 14 However, these grievances were also returned to George unprocessed because he failed to submit them in compliance with prison procedures. 15 10Id. 12 Step 1 Grievance #2015168676, Exhibit A to Defendants' MSJ, Docket Entry No. 52-1, pp. 7-8. 14 Step 1 Grievances #2015185830 and #2015190344, Exhibit A to Defendants' MSJ, Docket Entry No. 52-1, pp. 5-6 and 3-4. 15 Id. at 6, 4. -7- There is no evidence in the administrative record showing that George filed a Step 2 Grievance in connection with any of the claims that he raises in this case. The Fifth Circuit has made clear that a prisoner does not exhaust available administrative remedies as required by the PLRA where he has only completed one step of a two-step grievance process. See Wright, 260 F.3d at 358 (concluding that a prisoner's lawsuit was precluded by the PLRA where he "did not pursue the grievance remedy to conclusion"). Pointing Original to a Step Complaint, 2 Grievance George appears that to was attached to his argue that this was sufficient to exhaust administrative remedies in this case. 16 In response an to this contention, the defendants have provided affidavit from Misti Sorenson, who serves as a Program Supervisor for the TDCJ Administrative Review and Risk Management Division. 17 Sorenson notes that the Step 2 Grievance proffered by George is not signed by any indication that reviewing it was official and ever formally that there is no other submitted or processed. 18 Thus, it is not sufficient to satisfy the exhaustion requirement. See Johnson, 385 F.3d at 518 (noting that a grievance which fails 16 Step 2 Grievance, attached to Prisoner's Civil Rights Complaint ("Original Complaint"), Docket Entry No. 1-1, pp. 10-11; Plaintiff's Response to MSJ, Docket Entry No. 54, pp. 1-2. 17 Affidavit of Misti Sorenson, Exhibit B to Defendants' MSJ, Docket Entry No. 52-2, pp. 2-3. 18 Id. -8- to provide facts giving notice of a problem is insufficient to exhaust) . In Plaintiff's Demand that Defendants are Ordered, and Enforced, By Court to Comply With a Full Disclosure (Docket Entry No. 53), George seeks discovery of disciplinary, classification, and grievance records from the entire length of his incarceration. To the extent that this demand could be construed as a motion for a continuance to conduct discovery under Rule 56(d) of the Federal Rules of Civil Procedure, the request will be denied because George fails to provide any facts would raise a genuine showing how the requested discovery issue of material fact or defeat defendants' properly supported motion for summary judgment. Stearns Airport Equipment Co., Inc. v. FMC Corp., the See 170 F.3d 518, 534-35 (5th Cir. 1999) (interpreting former Fed. R. Civ. P. 56(f)). Based on the uncontradicted summary-judgment record, George did not complete both steps of the two-step TDCJ grievance process before filing suit in this case. As the Supreme Court has clarified, prisoners may not deliberately bypass the administrative process by flouting or failing to comply with an institution's procedural rules where the exhaustion of remedies is concerned. See Woodford, 126 S. Ct. at 2389. available § 1997e(a), administrative Because George failed to exhaust remedies as required by 42 U.S.C. the defendants are entitled to summary judgment and this case must be dismissed. See Wright, 260 F.3d at 359. -9- IV. Conclusion and Order Based on the foregoing, the court ORDERS as follows: 1. Defendants Snearly and Stewart's Motion for Summary Judgment for Failure to Exhaust Administrative Remedies (Docket Entry No. 52) is GRANTED. 2. Plaintiff's Demand that Defendants are Ordered, and Enforced, By Court to Comply With a Full Disclosure (Docket Entry No. 53) is DENIED. 3. This action will be dismissed with prejudice. The Clerk is directed to provide a copy of this Memorandum Opinion and Order to the parties. SIGNED at Houston, Texas, on this 2nd day of February, 2017. SIM LAKE UNITED STATES DISTRICT JUDGE -10-

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