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Cosey v. Ross

United States District Court, E.D. Arkansas, Western Division

November 30, 2017

ARTHUR LEE COSEY PLAINTIFF
v.
ROSS, et al. DEFENDANTS

          MEMORANDUM AND ORDER

          JEROME T. KEARNEY, UNITED STATES MAGISTRATE JUDGE.

         I. Introduction

         Plaintiff Arthur Cosey filed this pro se action pursuant to 42 U.S.C. § 1983, alleging improper conditions of confinement, inadequate medical care, failure to protect, and denial of equal protection, while incarcerated at the White County Detention Center (Jail) (Doc. No. 2). Defendants Brawn, Vaughn, Lacy, and Hawk were dismissed on February 2, 2017 (Doc. No. 15).

         Pending before the Court is the Motion for Summary Judgment, Brief in Support, and Statement of Facts filed by remaining Defendants Ross and Grimes (Doc. Nos. 17-19). By Order dated August 17, 2017, this Court directed Plaintiff to respond to the Motion within fifteen days, and cautioned him that failure to respond would result in all of the facts set forth in Defendants' summary judgment papers deemed admitted by him, or the dismissal of his complaint, without prejudice, for failure to prosecute (Doc. No. 20). The Court then granted Plaintiff's Motion to Extend Time to respond on September 11, 2017, giving him an additional thirty days (Doc. No. 22). The Court granted a second thirty-day extension on October 18, 2017, noting that no additional extensions would be granted (Doc. No. 24). As of this date, Plaintiff has not responded to Defendants' Motion.

         II. Complaint

         Plaintiff alleged he was arrested following a traffic accident on March 12, 2016, and that the Jail refused to provide him medical attention. (Doc. No. 2, p. 5) Defendant Ross ignored his requests for help and to make a telephone call, and initially he was not provided a mat on which to sleep. (Id.) Plaintiff lost control of his bowels and soiled himself but was not permitted to shower until March 14, 2016, and Ross again denied Plaintiff's requests to be taken to the hospital (Id.) Plaintiff was seen by a nurse on March 14, but she failed to examine his arm or treat him for pus-filled sores. (Id.) Two white inmates were taken to the emergency room during the time that officials refused Plaintiffs requests. (Id.)

         On July 7, 2016, Plaintiff complained to a nurse about a boil, and he was sent to the emergency room for treatment. (Id., p. 6) He was not given his medication until July 8, 2016, and he was only allowed two puffs every four hours with his asthma inhaler. (Id.) Defendant Ross failed to address Plaintiff's harassment by other inmates and on July 23, 2017, Plaintiff and others were assaulted. (Id.) Although Plaintiff was taken to the emergency room, Defendant Grimes never investigated the incident or questioned Plaintiff about his injuries. Plaintiff claimed he was denied proper medical attention or medications and was neglected while he was incarcerated. (Id.)

         III. Summary Judgment

         Pursuant to FED.R.CIV.P. 56(a), summary judgment is appropriate if the record shows that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Dulany v. Carnahan, 132 F.3d 1234, 1237 (8th Cir. 1997). "The moving party bears the initial burden of identifying 'those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.'" Webb v. Lawrence County, 144 F.3d 1131, 1134 (8th Cir. 1998) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (other citations omitted)). "Once the moving party has met this burden, the non-moving party cannot simply rest on mere denials or allegations in the pleadings; rather, the non-movant 'must set forth specific facts showing that there is a genuine issue for trial.'" Id. at 1135. Although the facts are viewed in a light most favorable to the non-moving party, "in order to defeat a motion for summary judgment, the non-movant cannot simply create a factual dispute; rather, there must be a genuine dispute over those facts that could actually affect the outcome of the lawsuit." Id.

         In addition, "[a]ll material facts set forth in the statement (of undisputed material facts) filed by the moving party...shall be deemed admitted unless controverted by the statement filed by the non-moving party...." Local Rule 56.1, Rules of the United States District Court for the Eastern and Western Districts of Arkansas. Failure to properly support or address the moving party's assertion of fact can result in the fact considered as undisputed for purposes of the motion. FED.R.CIV.P. 56(e)(2).

         A. Exhaustion

         Defendants first ask the Court to dismiss Plaintiffs equal protection, failure to protect, and denial of a mat claims for failure to exhaust his administrative remedies, as required by the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e. According to Defendant Grimes' affidavit, the detention center grievance policy provides for detainees to submit grievances through a computer kiosk system. (Doc. No. 19-1, p. 3; Doc. No. 19-7) Plaintiff utilized the grievance system on numerous occasions. (Doc. No. 19-6) Defendants claim, however, that Plaintiff never grieved the above-referenced claims; therefore, they should be dismissed.

         According to the PLRA,

No 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 ...

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