Opinion
CIV-20-678-SLP
03-02-2021
ERIC RYAN BECK, Plaintiff, v. FNU DARRINGTON, et al., Defendants.
REPORT AND RECOMMENDATION
Plaintiff, an Oklahoma prisoner appearing pro se and in forma pauperis, brings this civil rights action under 42 U.S.C. §1983 challenging the conditions of his confinement at the Comanche County Detention Center ("CCDC") where he was formerly incarcerated as a pretrial detainee. The matter has been referred to the undersigned Magistrate Judge for proceedings consistent with 28 U.S.C. §636(b)(1)(B).
Before the Court is an alternative Motion to Dismiss or Motion for Summary Judgment filed on behalf of the named Defendants: Lt. Clifford Darrington, Sgt. Michael Friel, and Cpl. Adrian Savage, (collectively the "CCDC Defendants"). Doc. No. 22. Plaintiff has filed a Response, Doc. No. 36, and the CCDC Defendants have replied. Doc. No. 37. Because Plaintiff did not exhaust his administrative remedies before filing this case, it is recommended summary judgment be granted to the CCDC Defendants.
In their motion, the CCDC Defendants identified the correct spelling of each Defendant's name.
I. Factual Background and Issue Presented
Based upon the Special Report, the Amended Complaint, and the evidentiary material appended to the various responses, the following material facts underlying this case are uncontroverted, deemed admitted, or, where disputed, are identified as such, and viewed in the light most favorable to Plaintiff. Immaterial facts and facts not properly supported by the record are omitted.
This case stems from the CCDC Defendants' use of alleged excessive force on March 18, 2020. Doc. No. 7 at 11. Plaintiff was booked into the CCDC on January 13, 2020, having been charged with possession of drugs and firearms. Doc. No. 21-1 at 1. On January 18, 2020, Plaintiff was assigned to the general population, specifically cell 363 in Pod 258. Pod 258 is an open pod consisting of an open day room and cells 259 and 260 on the lower level and cells 363 and 364 on an upper level. Doc. No. 21-4.
Schematic representations showing the pods and cells are filed under seal at Doc. No. 24-1.
On March 16, 2020, Defendant Augusto Porras-Marin, Shift Supervisor, moved Plaintiff to cell 357 in Pod 251. Pod 251, like Pod 258, has an open day room and two cells on each level. Doc. Nos. 21-4, 24-1. Shortly after his move to Pod 251, Plaintiff was involved in a verbal altercation with another inmate and then, when ordered, refused to exit his assigned cell so that the incident could be investigated by CCDC staff. Plaintiff had to be forcibly removed from the cell by detention officers at which point he resisted being removed from the pod. Ultimately, staff members moved Plaintiff to administrative segregation, Pod 241. Defendant Porras-Marin issued a Rule Violation Report and Plaintiff signed the form, waiving his right to a hearing and acknowledging his understanding that the waiver would be considered as a guilty plea. Doc. Nos. 21-8, 21-9.
The sanctions resulting from this Rule Violation Report included thirty days of commissary restriction, thirty days of visitation restriction, and thirty days in administrative segregation. According to the declarations of William Hobbs, Administrator of the CCDC, and the declarations of the CCDC Defendants, however, staff members decided on March 18, 2020, to move Plaintiff out of segregation and back into the general population because the segregation cell was needed for a more serious offender. Doc. No. 21-15 at 4. The CCDC Defendants escorted Plaintiff back to the general population pods where Defendant Darrington told Plaintiff that he would be housed in Pod 258. Doc. Nos. 21-10, 21-15, 21-16, 21-17, 21-18. Plaintiff refused to enter Pod 258, however, insisting instead that he be returned to Pod 251, the same pod where two days earlier, he had been involved in the verbal altercation resulting in a rule violation. Id.
Plaintiff told the CCDC Defendants that he would fear for his life if he were housed in Pod 258, but he did not provide any explanation for his alleged fear, nor did he ever request to be placed in protective custody. Doc. Nos. 21-15, 21-16, 21-17. Because Plaintiff would not identify the source of his fear, the CCDC Defendants concluded that he was falsely claiming he was in fear for his life to manipulate the CCDC Defendants into placing him in Pod 251. Doc. Nos. 21-15; 21-16; 21-17; 21-18. When Defendant Darrington insisted Plaintiff enter Pod 258, Plaintiff threatened the CCDC Defendants. Defendant Darrington placed his hands on Plaintiff's shoulders and attempted to physically push him into Pod 258. Plaintiff would not budge, however, and physically resisted. Id. Defendants Friel and Savage assisted Defendant Darrington in attempting to force Plaintiff to enter Pod 258. In the ensuing struggle, Plaintiff and Defendants Darrington and Friel fell to the ground. Doc. Nos. 21-15, 21-16, 21-17, 21-18. Because Plaintiff sustained an abrasion above his left eye, the CCDC Defendants took him to the medical room where he was assessed by medical staff. CCDC medical staff determined that Plaintiff should be transported to Comanche County Memorial Hospital Emergency Room for stitches. Doc. Nos. 21-15, 21-16, 21-17, 21-18.
Plaintiff gives no explanation in his Amended Complaint or his Response as to the source of his alleged fear in being housed in Pod 258.
The CCDC Defendants took Plaintiff to the booking area to be transported to the hospital. According to the CCDC Defendants, however, Plaintiff began resisting again on the way to the booking area and again made threats of physical violence against Defendants. According to Defendant Darrington, it was necessary to push Plaintiff against the wall so that he could adjust his hold on Plaintiff. The CCDC Defendants allege Defendant Darrington placed Plaintiff's head against Defendant Darrington's shoulder and applied targeted pressure behind Plaintiff's right ear to make Plaintiff quit resisting. Doc. Nos. 21-15, 21-16, 21-17.
According to Plaintiff's Amended Complaint, however, Defendant Darrington had promised to slam Plaintiff's head into every wall on the way to the booking area. Plaintiff further alleges Defendant Darrington made good on his promise. Upon reaching the booking area, according to Plaintiff, Defendant Darrington choked him until he lost consciousness. Plaintiff was then transported to the hospital where his cut was sutured. Doc. No. 7 at 11-13; Doc. No. 24-4.
On March 22, 2020, Defendant Darrington submitted a Rule Violation Report against Plaintiff for the March 18, 2020 incident. Plaintiff's sanctions included fifteen days without telephone, recreation, visitation or commissary privileges in addition to "suspended segregation time," to be served when space was available in the administrative segregation pod. Doc. No. 21-16 at 6. Plaintiff signed this report and initialed the lines indicating that he received a copy of the report and that he waived his right to a hearing on the charge "with full knowledge that is considered a guilty plea" for which "allowable sanctions can be imposed with no right to appeal." Doc. No. 13-16.
Plaintiff contends his treatment at the hands of the CCDC Defendants rose to the level of excessive force in violation of his due process rights. Defendants seek summary judgment based on Plaintiff's failure to exhaust administrative remedies before filing this lawsuit. Plaintiff responds that, through no fault of his own, he was unable to exhaust his administrative remedies, making them "unavailable." Doc. No. 36 at 2. The CCDC Defendants point out the discrepancies in Plaintiff's Response and contend that Plaintiff could, and should, have exhausted his administrative remedies, and that because he did not, they are entitled to summary judgment. Doc. No. 37.
II. Standard of Review
Because this Court has considered materials attached to the Court-ordered Special Report, the Court must treat the CCDC Defendants' Motion as a Motion for Summary Judgment under Fed. R. Civ. P. 56. See Fed. R. Civ. P. 12(d) ("If, on a motion under Rule 12(b)(6) . . ., matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.").
Summary judgment is appropriate only if "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). A fact is "material" if, under the governing law, it could have an effect on the outcome of the lawsuit. Adamson v. Multi Community Diversified Servs., Inc., 514 F.3d 1136, 1145 (10th Cir. 2008) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A dispute over a material fact is "genuine" if a rational jury could find in favor of the nonmoving party on the evidence presented. Id.
The burden of showing that no genuine issue of material fact exists is borne by the moving party. Id. (citing Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998). In considering a motion for summary judgment, this Court draws all reasonable inferences in favor of the nonmoving party. Curtis v. Oklahoma City Pub. Sch. Bd. of Ed., 147 F.3d 1200, 1214 (10th Cir. 1998).
III. Exhaustion of Administrative Remedies
As discussed in further detail below, Plaintiff has failed to exhaust his administrative remedies as to the claim he raises in his Amended Complaint. As there was an administrative process available to him that he failed to use, Plaintiff's futility argument, asserted in his Response to the Motion for Summary Judgment, has no merit.
A. Requirement for Exhaustion
The Prison Litigation Reform Act provides that no action under 42 U.S.C. § 1983 may be brought by a prisoner regarding conditions of confinement "until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a); see also Woodford v. Ngo, 548 U.S. 81, 90' (2006) (explaining that § 1997e(a) requires "proper exhaustion"—i.e., "using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits)" (quotations omitted)). "Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings." Ngo, 548 U.S. at 90-91.
B. CCDC Offender Grievance Process
The CCDC has an offender grievance process outlined in the Comanche County Detention Center Inmate Handbook, Doc. No. 21-7 at 10-12, through which a prisoner or pre-trial detainee in its custody may seek administrative decisions or answers to complaints. A document entitled "The Comanche County Detention Center Inmate Grievance Procedures," filed under seal in this case as Doc. No. 24-2, contains a much more thorough description of the grievance process than the description in the Inmate Handbook.
As described in the Inmate Handbook, the CCDC grievance process requires an inmate initially to file a request to staff in an attempt to quickly reach resolution of his or her complaint. Doc. No. 21-7 at 10. Despite the requirement to file a request to staff before a grievance, however, a grievance must be filed within 48 hours of the event giving rise to the grievance. A copy of the request to staff, whether or not answered, must be attached to the grievance. Id. at 11.
When an inmate completes a grievance form, a "staff member" will forward the grievance to the on-duty supervisor who will review policies and procedures to determine whether the grievance is "valid." Id. at 12. The supervisor will then answer the grievance within seven days. The appeal process as outlined in the Inmate Handbook is vague, but a grievance filed "to appeal a decision of a staff member" is listed as a proper use of the grievance system. Id. at 11. When the supervisor who first received the grievance answers the grievance, a copy is forwarded to the CCDC Administrator where it is tracked and logged. Id. at 12-14. If a "Standard Grievance" is filed, the "staff member" will accept it and "forward it to the Administrator or his designee." Id. at 15. The Administrator or his designee will answer the grievance within seven days either by "informally or verbally reaching an agreement with the inmate" or "through a formal written response on the original standard form[.]" Id.
C. Plaintiff's Use of Grievance Procedure
The CCDC Defendants contend that Plaintiff filed no requests to staff, no grievances, and, obviously, no grievance appeals concerning the alleged excessive force that is the subject of his Amended Complaint. Doc. No. 22 at 21. Mr. Hobbs, the CCDC Administrator, states in the second of two Declarations attached to the Special Report that he is responsible for maintaining records of grievances. Doc. No. 21-21 at 2. He describes the three requests to staff forms Plaintiff submitted while incarcerated at CCDC. None has anything to do with the allegations in Plaintiff's Amended Complaint. Id. at 3-4.
D. Plaintiff's Response to Motion to Dismiss and Defendant's Reply
Plaintiff does not contest the CCDC Defendants' contention that he did not exhaust administrative remedies before filing this lawsuit. Rather, Plaintiff contends his failure to exhaust should be excused because "Plaintiff was 'unable' to file a grievance through 'no fault of his own.'" Doc. No. 36 at 2 (citing Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007)).
According to Plaintiff, he was unable to file a grievance within the 48 hour limit for doing so because he "was placed in segregation pod 241 at 12:15 pm by Detention officer / shift supervisor Augusto Porras-Marin until 5:59 pm on March 18, 2020, over the 48 hour limit." Doc. No. 36 at 2. Plaintiff cites the Declaration of Augusto Porras-Marin in support of his argument. Doc. No. 21-19.
However, the Declaration of Defendant Porras-Marin does not support Plaintiff's argument. Defendant Porras-Marin's Declaration describes the first incident on March 16, 2020, after which Plaintiff received a Rule Violation and was briefly placed in administrative segregation from March 16, 2020 until March 18, 2020. Id. at 2-3. Plaintiff served his two-day stint in administrative segregation before the incident that is the basis of this lawsuit. In fact, the underlying incident involving the struggle between the CCDC Defendants and Plaintiff occurred on March 18, 2020, after Plaintiff was released from administrative segregation and was, in fact, being escorted to a cell in the general population that he refused to enter. Doc. No. 7 at 11. The March 18, 2020 incident resulted in a second Rule Violation being filed against Plaintiff, this time by Defendant Darrington. In his Declaration, Defendant Darrington states the sanctions against Plaintiff for the rule violation included suspended time in administrative segregation "to be served when space became available." Doc. No. 21-16 at 6.
Plaintiff's cell history demonstrates that on March 18, 2020, apparently after he returned from the emergency room, Plaintiff was first placed in cell "122 4" and later in cell "119 2." Doc. No. 21-4. The CCDC jail schematics demonstrate these cells are on the first floor near the booking area. Doc. No. 24-1 at 1. Neither of the two cells is designated as segregation cells, and Plaintiff does not contend they are. Moreover, nothing in the grievance procedure indicates an inmate cannot file a grievance while he is incarcerated in administrative segregation.
Thus, Plaintiff's Response is insufficient to demonstrate his inability to file a grievance regarding the actions of the CCDC Defendants occurring on March 18, 2020. Plaintiff's failure to exhaust administrative remedies is fatal to federal judicial review of his claims. Ngo, 548 U.S. at 90-92. Accordingly, the undersigned recommends Defendant's Motion, converted to one seeking summary judgment, be granted. See Calbart v. Sauer, 504 F. App'x 778, 784 (10th Cir. 2012) (affirming the district court's granting of summary judgment in favor of the defendants against the plaintiff's § 1983 claims based on the plaintiff's failure to exhaust administrative remedies).
Additionally, as Defendants note, CCDC is not a proper party under 42 U.S.C. § 1983. Thus, had Plaintiff exhausted his administrative remedies, CCDC would be subject to dismissal. Lindsey v. Thomson, No. 06-7114, 2007 WL 2693970 at *3 (10th Cir. Sept. 10, 2007) (affirming dismissal of § 1983 claims against police department and county sheriff's department because they are entities with no apparent legal existence); see e.g. White v. Utah, No. 00-4109, 2001 WL 201980 at *1 (10th Cir. March 1, 2001) (affirming dismissal of county jail because no state law supported directing a cause of action directly against a county's subdivisions, including its jails).
RECOMMENDATION
Based on the foregoing findings, it is recommended Defendants' Motion for Summary Judgment (Doc. No. 22) be granted. Plaintiff is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by March 22nd . 2021, in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. The failure to timely object to this Report and Recommendation results in waiver of appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) ("Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.").
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motion not specifically addressed herein is denied.
ENTERED this 2nd day of March, 2021.
/s/_________
GARY M. PURCELL
UNITED STATES MAGISTRATE JUDGE