Davis v. Watson

          ORDER

          SUSAN O. HICKEY CHIEF UNITED STATES DISTRICT JUDGE

         Before the Court is the Report and Recommendation filed June 26, 2019, by the Honorable James R. Marschewski, United States Magistrate Judge for the Western District of Arkansas. (ECF No. 56). Judge Marschewski recommends that the Court grant Defendants Jason Watson and Derrick Barnes' motion for summary judgment (ECF No. 49) and dismiss Plaintiff Larry David Davis' claims with prejudice. Plaintiff has filed objections. (ECF No. 57). The Court finds the matter ripe for consideration.

         I. BACKGROUND

         On January 12, 2018, Plaintiff filed this case pursuant to 42 U.S.C. § 1983, alleging that Defendants violated his constitutional rights while he was incarcerated in the Clark County Detention Center (“CCDC”) from May 19, 2017, through December 29, 2017. After pre-service screening, two official capacity claims remained: a deliberate indifference claim related to Defendants' alleged failure to provide him a diabetic diet and a conditions of confinement claim related to allegations that, during the winter, Plaintiff was forced to sleep in a cell with an open window covered only by bars.

         On December 19, 2018, Defendants filed a motion for summary judgment. Plaintiff responded to the summary judgment motion on January 19, 2019. On June 26, 2019, Judge Marschewski issued the instant report and recommendation. Judge Marschewski finds that Plaintiff failed to produce evidence that any injury he suffered related to a diabetic diet was the result of a policy, practice, or custom of CCDC. Judge Marschewski also finds that Plaintiff failed to exhaust his administrative remedies with respect to his conditions of confinement claim prior to bringing this action and, alternatively, that Plaintiff failed to produce evidence establishing a genuine dispute of material fact related to this claim. Accordingly, Judge Marschewski recommends that the Court grant Defendants' summary judgment motion and dismiss Plaintiff's remaining claims with prejudice. On July 11, 2019, Plaintiff filed objections.

         II. DISCUSSION

         The Court may designate a magistrate judge to hear pre- and post-trial matters and to submit to the Court proposed findings of fact and recommendations for disposition. 28 U.S.C. § 636(b)(1). Within fourteen days of receipt of a magistrate judge's report and recommendation, “a party may serve and file specific written objections to the proposed findings and recommendations.” Fed.R.Civ.P. 72(b)(2); accord Local Rule 72.2(VII)(C). After conducting an appropriate review of the report and recommendation, the Court may then “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge . . . or recommit the matter to the magistrate judge with instructions.” 28 U.S.C. § 636(b)(1).

         “[T]he specific standard of review depends, in the first instance, upon whether or not a party has objected to portions of the report and recommendation.” Anderson v. Evangelical Lutheran Good Samaritan Soc'y, 308 F.Supp.3d 1011, 1015 (N.D. Iowa 2018). Generally, “objections must be timely and specific” to trigger de novo review. Thompson v. Nix, 897 F.2d 356, 358-59 (8th Cir. 1990). However, the Court may, in its discretion, conduct a de novo review of any issue in a report and recommendation. Thomas v. Arn, 474 U.S. 140, 154 (1985). The Court must apply a liberal construction when determining whether pro se objections are specific. Hudson v. Gammon, 46 F.3d 785, 786 (8th Cir. 1995).

         The Court will separately address Plaintiff's objections as to each of the two claims.

         A. Conditions of Confinement Claim

         Plaintiff claims that he was kept in a cell with an open window covered only by bars, exposing him to the outside air during the winter. Judge Marschewski made two findings on this claim. First, Judge Marschewski found that Plaintiff failed to exhaust his administrative remedies related to his cell's conditions before bringing this action. Second, Judge Marschewski found alternatively that Plaintiff failed to show a genuine dispute of material fact as to the claim. For both reasons, Judge Marschewski recommends that summary judgment is proper on this claim. Plaintiff objects, arguing that Defendants did not respond to any grievance he filed while at the CCDC and that they would “sometimes” tell him that they were out of grievance forms. Plaintiff also argues that Defendants knew that he was locked in a cell with no glass on the window, exposing him to the elements during winter. The Court will first take up Judge Marschewski's findings on failure to exhaust and, if necessary, the Court will then proceed to Judge Marschewski's findings on the merits.

         1. Failure to Exhaust

         Judge Marschewski found that Plaintiff has produced no evidence that he filed and fully exhausted a grievance with respect to the cell window or the temperature in his cell. From that, Judge Marschewski reasoned that Plaintiff failed to exhaust his administrative remedies and, thus, summary judgment is proper on this claim. For the following reasons, the Court respectfully disagrees.

         The Prison Litigation Reform Act (“PLRA”) mandates exhaustion of available administrative remedies before an inmate files suit under section 1983. 42 U.S.C. § 1997e(a). “[R]eliance upon the PLRA exhaustion requirement is an affirmative defense under [Federal Rule of Civil Procedure] 8(c).” Foulk v. Charrier, 262 F.3d 687, 697 (8th Cir. 2001). In other words, the burden is on Defendants to plead and show that administrative remedies were available to Plaintiff and that he did not properly exhaust them before filing suit. Lyon v. Vande Krol, 305 F.3d 806, 809 (8th Cir. 2002).

         Although Defendants pleaded failure to exhaust as an affirmative defense in their answer to Plaintiff's complaint, they did not assert a failure to exhaust argument in their underlying summary judgment motion. Although Defendants state in their summary judgment motion that Plaintiff did not file a grievance related to his cell window or the temperature in the cell, they do so in the context of arguing that Plaintiff had not put Defendants on notice of his cell conditions. At no time do Defendants argue that Plaintiff's conditions of confinement claim should be ...