United States District Court, W.D. Arkansas, Hot Springs Division
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 ...