Opinion
Civil Action 4:20-cv-3113-JFA-TER
10-29-2021
JAMARV PAREMORE HAMMOND, #112950, a/k/a Jamarv P. Hammond, #265009, Plaintiff, v. LIEUTENANT BURNS, SERGEANT CHRISTOPHER COONS, CORPORAL COOPER, and CORPORAL JULIUS BEAN, Defendant.
REPORT AND RECOMMENDATION
THOMAS E. ROGERS, III UNITED STATES MAGISTRATE JUDGE.
I. INTRODUCTION
Plaintiff, who is proceeding pro se, brings this action alleging that Defendants violated his constitutional rights by using excessive force while he was detained at the Dorchester County Detention Center (DCDC). Presently before the court is Defendants' Motion to Dismiss, or in the Alternative, for Summary Judgment (ECF No. 47). Because Plaintiff is proceeding pro se, he was advised pursuant to Roseboro v. Garrison, 528 F.3d 309 (4th Cir. 1975), that a failure to respond to Defendants' motions could result in dismissal of his Complaint. After receiving two extensions of time to respond to Defendants' motion, Plaintiff has failed to file a response. All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(d), DSC. This report and recommendation is entered for review by the district judge.
Because Defendants have included matters outside the pleadings in support of this motion, it will be treated as one for summary judgment pursuant to Fed.R.Civ.P. 56.
II. FACTUAL ALLEGATIONS
Plaintiff alleges that on August 27, 2018, he was taking a bowel movement on the toilet in his cell and had covered the window, which he was allowed to do, since it was in direct view of the toilet. While using the toilet, he heard a commotion outside his cell. He could hear other pretrial detainees through the ventilation system yelling that detention center officers had equipped themselves with assault tactical gear and stormed the unit.
Plaintiff subsequently heard knocking on his cell door and heard officers telling him to take the covering off of his window. He informed the officers that he was using the toilet. Plaintiff heard Defendants Coons and Cooper talking outside of his cell and then heard a key unlocking the cell's security food flap. Plaintiff then observed the muzzle of an automatic rifle entering the flap. Plaintiff began experiencing symptoms of Post-Traumatic Stress Disorder as a result of being shot and left for dead in the past.
He jumped off of the toilet, grabbed a blanket and began pushing the muzzle of the weapon outside the cell's security food flap. He then blocked the flap with his blanket. Because he did not know what to expect next, he grabbed several towels to wrap his face and hands. Defendants Coons and Cooper again instructed Plaintiff to remove the covering from his window and he complied.
Officers then opened the cell door without any explanation for the reason for the forced entry and stormed his cell while pointing an assault rifle at Plaintiff's face. The officers instructed Plaintiff to get on his knees. Plaintiff asserts that such an instruction was unreasonable since he was in his assigned living quarters and had not violated any policy. Plaintiff was then shot in the left eye with “rifle projectiles.” The officers then released pepper spray and gas into his cell and shot Plaintiff with multiple taser projectiles. Plaintiff collapsed on the ground and lie motionless and Defendant Bean and another officer got on top of Plaintiff and obstructed his breathing. Plaintiff was assaulted and tased multiple times by Defendant Bean.
Following the assault, Plaintiff was dragged to the shower to wash away evidence of the assault. He sustained injuries to his eye, neck, back, and head. Following a hearing in December of 2018, Plaintiff was exonerated of any wrongdoing. Compl. pp. 9-12.
III. STANDARD OF REVIEW
Under Fed.R.Civ.P. 56, the moving party bears the burden of showing that summary judgment is proper. Summary judgment is proper if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is proper if the non-moving party fails to establish an essential element of any cause of action upon which the non-moving party has the burden of proof. Id. Once the moving party has brought into question whether there is a genuine dispute for trial on a material element of the non-moving party's claims, the non-moving party bears the burden of coming forward with specific facts which show a genuine dispute for trial. Fed.R.Civ.P. 56(e); Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). The non-moving party must come forward with enough evidence, beyond a mere scintilla, upon which the fact finder could reasonably find for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The facts and inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). However, the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Barber v. Hosp. Corp. of Am., 977 F.2d 874-75 (4th Cir. 1992). The evidence relied on must meet “the substantive evidentiary standard of proof that would apply at a trial on the merits.” Mitchell v. Data General Corp., 12 F.3d 1310, 1316 (4thCir. 1993).
To show that a genuine dispute of material fact exists, a party may not rest upon the mere allegations or denials of his pleadings. See Celotex, 477 U.S. at 324. Rather, the party must present evidence supporting his or her position by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1)(A); see also Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390 (4th Cir. 1994); Orsi v. Kickwood, 999 F.2d 86 (4th Cir. 1993); Local Rules 7.04, 7.05, D.S.C.
IV. DISCUSSION
Plaintiff brings this action pursuant to 42 U.S.C. § 1983, arguing that Defendants violated his constitutional rights by using excessive force. Section 1983 “‘is not itself a source of substantive rights,' but merely provides ‘a method for vindicating federal rights elsewhere conferred.'” Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144, n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979)). A legal action under § 1983 allows “a party who has been deprived of a federal right under the color of state law to seek relief.” City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 707, 119 S.Ct. 1624, 143 L.Ed.2d 882 (1999). To be successful on a claim under § 1983, a plaintiff must establish two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). The parties do not dispute that they were acting under color of state law in their individual capacities at all times relevant to this action.
Defendants argue that summary judgment is appropriate because Plaintiff failed to exhaust his administrative remedies. The Prison Litigation Reform Act (PLRA) requires that a prisoner exhaust the available administrative remedies before filing a 1983 action concerning conditions of his confinement. 42 U.S.C.1997e(a). In enacting the PLRA, Congress carved out an exception to the general rule that exhaustion of state remedies is not a prerequisite to filing a civil rights suit. The PLRA amended section 1997e so that it now provides, “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 administrative remedies as are available are exhausted.” Id. § 1997e(a). Accordingly, before Plaintiff may proceed with his claims in this Court, he must first exhaust his administrative remedies. The United States Supreme Court has held that “Congress has mandated exhaustion clearly enough, regardless of the relief offered through administrative procedures.” Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001); see Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002); Jones v. Smith, 266 F.3d 399 (6th Cir.2001) (exhaustion required even though Plaintiff claimed futility); Larkin v. Galloway, 266 F.3 d 718 (7th Cir.2001) (exhaustion required even though Plaintiff claimed he was afraid); see also Claybrooks v. Newsome, 2001 WL 1089548 (4th Cir., September 18, 2001) (unpublished opinion) (applying Booth v. Churner to affirm district court's denial of relief to Plaintiff). A failure to exhaust all levels of administrative review is not “proper exhaustion” and will bar actions filed by inmates under any federal law, including § 1983. Woodford v. Ngo, 548 U.S. 81, 126 S.Ct. 2378, 2386, 165 L.Ed.2d 368 (2006).
The DCDC provides inmates with a procedure through which they may file grievances on issues related to conditions that directly affect an inmate. Inmate Handbook pp. 12-13 (ECF No. 47-12). An inmates can access grievance forms on the commissary kiosks, and must complete and submit a grievance within 72 hours of the incident he is grieving. Id. The Team Lieutenant has five working days to investigate the grievance and provide the inmate with a written answer. Id. If the inmate is not satisfied with the response from the Team Lieutenant, he can appeal the response to either the Administrative Captain or the Operations Captain within two working days using the commissary kiosks. Id. The Captain will have five days to provide a written response. Id. The inmate then has two working days to file an appeal with the Detention Center Director. Id. The decision from the Director is considered final and no further appeals will be allowed. Id. The Inmate Handbook states that an inmate's grievance will be considered satisfactorily resolved if the inmate fails to meet any required time frames for filing the grievance or appeal. Id. The Inmate Handbook also discusses request forms and specifically states that “request forms should not be used to file grievances and complaints. Grievances/complaints must be submitted through the grievance process described above.” Id. at p. 13.
In his complaint, Plaintiff asserts that he filed a grievance, but was transferred four days after the assault occurred and thus was not able to appeal the grievance decision. Compl. pp. 15-16. However, Corporal Tori Stokes-Riley, Grievance Coordinator for the DCDC, avers that Plaintiff did not file a grievance regarding the use of force alleged in this action. Stokes-Riley Aff. ¶¶ 1, 4-5 (ECF No. 47-3). Stokes-Riley avers that while he did submit a “request” regarding this issue on August 27, 2018, he did not complete a grievance as required by the grievance policy set forth in the Inmate Handbook. Stokes-Riley Aff. ¶ 3-5. Stoke-Riley avers that Lt. Burns responded to the request on August 31, 2018, denying the facts alleged by Plaintiff. Stokes-Riley Aff. ¶ 4. Defendants submitted Plaintiff's grievance records, which all include the heading “Inmate Grievance/Request Record.” Pl. Grievance Records (ECF No. 47-13). Thus, the difference between a grievance form and a request form as set forth in the Inmate Handbook is not clear.
There is no Inmate Grievance/Request Record dated August 27, 2018, but there is one dated August 29, 2018, which states
To whom it may concern,
On 27Aug18, I was gang-styled assaulted by several member's of this facility in a combat-styled operation conducted on behalf of Lt. Burns, and spearheaded by Sgt.
Coontz, and Cpl. Cooper. Cpl. Huber, Ofc. Graham, and Ofc. Poland were also participants as I was assaulted, shot several times from point blank range with an assault rifle by Sgt. Coontz directly in my face and left eye which has left my vision damaged.
Additionally I was tased several times by two different weapons discharged against me and also pepper sprayed directly in my face.
After I was immobilized I was then thrown to the ground and then further assaulted and hit repeatedly. ...
I have never had one infraction against me for anything in over a year. This use of force was excessive, brutal, and unprovoked. I have permanent injuries I have sustained and I seek criminal prosecution.Pl. Grievance Records. Lt. Burns responded to this Grievance/Request on August 31, 2018, denying the allegations as set forth by Plaintiff and indicating that Plaintiff would have an opportunity to address his concerns at the disciplinary hearing on his charges for failing to comply. Pl. Grievance Records.
Assuming this form completed by Plaintiff was a grievance and not a “request” as characterized by Stokes-Riley, Plaintiff admits that he did not complete the grievance process by appealing Lt. Burns' response but asserts that he was unable to do so because he was transferred to a different facility four days after the assault. However, each of the Grievance/Request Records that received a response on August 31, 2018, or after indicates that the response came from the Charleston County Detention Center, not the DCDC. Thus, Plaintiff's transfer to a new facility did not prevent the detention center from responding to Plaintiff's Grievance/Request, and Plaintiff fails to show how his transfer prevented him from filing an appeal. Transfer to a new facility does not excuse or make moot an inmate's exhaustion requirement under the PLRA. See De La Cruz-Garcia v. Lucas, No. CV 1:16-05733, 2017 WL 944221, at *2 (S.D. W.Va. Mar. 10, 2017) (“Administrative remedies must be filed with the facility where the alleged injuries occurred and a transfer to another facility does not nullify this requirement.”); Zander v. Lappin, No. 5:08-CT-3117-FL, 2012 WL 3138012, at *5 (E.D. N.C. Aug. 1, 2012), aff'd, 509 Fed.Appx. 203 (4th Cir. 2013) (“To the extent plaintiff asserts that his transfer from Butner to Oakland prevented him from complying with the BOP's administrative remedy procedure, his duty to exhaust is not excused by transfer to another institution.”); see also Medina-Claudio v. Rodriguez-Mateo, 292 F.3d 31, 35 (1st Cir. 2002) (“The fact that [the plaintiff] happened to be a prisoner in various locations, and under the custody of different officials, does not affect his obligation to exhaust his administrative remedies before filing suit.”); Rodriguez v. Senkowski, 103 F.Supp.2d 131, 134 (N.D.N.Y. 2000) (“[T]he mere fact that [p]laintiff has been transferred to another prison facility does not necessarily render the exhaustion requirement moot.”); Santiago v. Meinsen, 89 F.Supp.2d 435, 440 (S.D.N.Y. 2000) (plaintiff's transfer did not excuse failure to exhaust); Kiro v. Moore, No. CV 03-1223 JB/ACT, 2005 WL 8163915, at *5 n.4 (D.N.M. Apr. 28, 2005) (same); Turrietta v. Barreras, 91 Fed.Appx. 640, 642 (10th Cir. 2004) (“The mere fact that [the plaintiff] was transferred and confined does not direct the conclusion that he was thereby prevented from filing a grievance”) (unpublished); Napier v. Laurel Cty., Ky., 636 F.3d 218, 223 (6th Cir. 2011) (“Generally, ‘[t]he transfer of a prisoner from one facility to another does not render the grievance procedures at the transferor facility ‘unavailable' for purposes of exhaustion.' ”) (quoting Blakey v. Beckstrom, No. 06-163-HRW, 2007 WL 204005, at *2 (E.D. Ky. Jan. 24, 2007)).
The PLRA provides only one exception to the exhaustion requirement-that inmates need not exhaust “unavailable” remedies. Ross v. Blake, 136 S.Ct. 1850, 1858 (2016). An exhaustion remedy is unavailable when, inter alia, prison administrators “thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. at 1860. There is no evidence in the record that Plaintiff was transferred to a new facility to thwart him from completing the grievance process or that the transfer in any way prevented him from doing so. See, e.g., Enow v. Dovey, No. CV PWG-16-615, 2017 WL 2537012, at *11 (D. Md. June 12, 2017) (dismissing claims for failure to exhaust despite plaintiff's claim that he could not exhaust because of a transfer to a new facility where there was no evidence in the record that the transfer was intended to thwart his efforts to exhaust); Lamerique v. United States, No. 3:18-CV-00532, 2019 WL 2932673, at *9 (S.D. W.Va. June 14, 2019), report and recommendation adopted, No. CV 3:18-0532, 2019 WL 2929035 (S.D. W.Va. July 8, 2019) (finding unavailing the plaintiff's argument that prison administrators conspired to repeatedly transfer him in order to “thwart” his attempts to avail himself of the grievance procedure).
The PLRA's exhaustion requirement is a robust one. See Ross, 136 S.Ct. at 1856-58. Prisoners must therefore diligently and properly follow the administrative procedures that are available. See Woodford, 548 U.S. at 90. Because Plaintiff failed to do so with respect to the issues raised herein, dismissal of this action is appropriate.
V. CONCLUSION
For the reasons discussed above, it is recommended that Defendants' Motion to Dismiss, or in the Alternative, for Summary Judgment (ECF No. 47) be granted pursuant to Fed.R.Civ.P. 56 as a result of Plaintiff's failure to exhaust his administrative remedies and this case be dismissed.
The parties are directed to the important information on the following page.