Davison v. Merritt

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HON. BARRY A. BRYANT UNITED STATES MAGISTRATE JUDGE.

         This is a civil rights action provisionally filed pursuant to 42 U.S.C. § 1983. Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3)(2011), the Honorable Robert T. Dawson, United States District Judge, referred this case to the undersigned for the purpose of making a Report and Recommendation.

         Currently before the Court is Defendant Merritt's Motion for Summary Judgment. (ECF Nos. 15, 16, 17).

         I. BACKGROUND

         Plaintiff filed his Complaint on October 16, 2018. (ECF No. 1). He is currently incarcerated in the Arkansas Department of Correction (“ADC”) Ouachita River Unit. He alleges his constitutional rights were violated by Defendant Merritt's use of excessive force against him in the chow hall on August 21, 2018. (Id. at 3). Plaintiff proceeds against Defendant Merritt in his personal capacity. (Id. at 4). He seeks compensatory and punitive damages. (Id. at 5).

         Defendant Merritt filed his Motion for Summary Judgment on December 11, 2018. (ECF Nos. 15, 16, 17). On December 12, 2018, the Court entered an Order directing Plaintiff to file his Response to the Motion. (ECF No. 20). Plaintiff did so on January 7, 2019. (ECF Nos. 23, 24, 25, 26).

         II. LEGAL STANDARD

         Summary judgment is appropriate if, after viewing the facts and all reasonable inferences in the light most favorable to the nonmoving party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986), the record "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). "Once a party moving for summary judgment has made a sufficient showing, the burden rests with the non-moving party to set forth specific facts, by affidavit or other evidence, showing that a genuine issue of material fact exists.” National Bank of Commerce v. Dow Chemical Co., 165 F.3d 602, 607 (8th Cir. 1999).

         The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. "They must show there is sufficient evidence to support a jury verdict in their favor." National Bank, 165 F.3d at 607 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). "A case founded on speculation or suspicion is insufficient to survive a motion for summary judgment." Id. (citing, Metge v. Baehler, 762 F.2d 621, 625 (8th Cir. 1985)). “When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007).

         III. ANALYSIS

         Defendant Merritt argues summary judgment in his favor is appropriate because Plaintiff failed to exhaust his administrative remedies against him for the incident on August 21, 2018, prior to filing this lawsuit. (ECF No. 15 at 1).

         Plaintiff admits he did not exhaust his grievance, but argues he filed an Informal Step One grievance about the incident and was told a disciplinary issue was a non-grievable matter, so he did not proceed further with the ADC grievance process. (ECF No. 26 at 1). He notes that he did not grieve the fact that he received a disciplinary because he did not know at the time that a disciplinary charge had been filed. The subject of his Step One Informal grievance was instead Defendant's actions against him. He further states that it is common procedure for ADC staff to deem any incident in which an inmate receives a disciplinary charge to be non-grievable. (ECF No. 24 at 2).

         The Prison Litigation Reform Act (“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.” 42 U.S.C. § 1997e(a). Exhaustion is mandatory. Porter v. Nussle, 534 U.S. 516, 524-25 (2002). “[T]o properly exhaust administrative remedies prisoners must complete the administrative review process in accordance with the applicable procedural rules.” Jones v. Bock, 549 U.S. 199, 218 (2007) (internal quotation marks and citation omitted). The “level of detail necessary in a grievance to comply with the grievance procedures will vary from system to system and claim to claim, but it is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion.” Id. A prisoner's remedies are exhausted “when [the] inmate pursues the prison grievance process to its final stage and receives an adverse decision on the merits.” Hammett v. Cofield, 681 F.3d 945, 947 (8th Cir. 2012).

         The Eighth Circuit Court of Appeals has recognized only two exceptions to the PLRA exhaustion requirement: (1) when officials have prevented prisoners from utilizing the grievance procedures; or (2) when the officials themselves fail to comply with the grievance procedures. See Gibson v. Weber,431 F.3d 339, 341 (8th Cir. 2005) (citing Miller v. Norris, 347 F.3d 736 (8th Cir. 2001) (explaining that a prisoner is only required to exhaust those administrative remedies that are available and any remedies that prison officials prevent a prisoner from utilizing are not considered available)). It is not Plaintiff's subjective belief regarding whether he had any administrative remedies remaining that should be considered, but whether any administrative remedies were in fact still available. See Gibson v. Weber,431 F.3d 339, 340 (8th Cir. 2005) (incorrect advice from medical staff and officers that medical complaints should be done informally and not to the prison administration under its grievance procedure did not excuse failure to exhaust); Lyon v. VandeKrol, 305 F.3d 806, 809 (8th Cir. 2002) (the court ...