Opinion
Case No. CIV-19-885-D
03-18-2020
EDWARD LORENZO RICKETTS, Plaintiff, v. CLIFFORD DARRINGTON, et al., Defendants.
REPORT AND RECOMMENDATION
Plaintiff Edward Ricketts, a state inmate appearing pro se and in forma pauperis, has filed a lawsuit under 42 U.S.C. § 1983, alleging constitutional violations. (ECF No. 1). Chief United States District Judge Timothy D. DeGiusti has referred this matter to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B)-(C). Defendants Clifford Darrington and Diana Ortega have filed: (1) a Motion to Dismiss or, in the Alternative, Motion for Summary Judgment (ECF No. 20); and (2) a Motion to Strike (ECF No. 26). The Court should GRANT both motions.
I. FACTUAL BACKGROUND
Mr. Ricketts is a pretrial detainee in the custody of the Comanche County Detention Center (CCDC) and the factual allegations in his Complaint relate to his incarceration at that facility.
On January 23, 2019, Mr. Ricketts alleges that he was assaulted by four inmates after "jail staff" unlocked his cell door, despite Plaintiff's warning to Defendant Darrington not to unlock or open the cell door because Plaintiff's "life [was] in danger." (ECF No. 1:7). Following the assault, Plaintiff complained to jail officials about pain in his right wrist. (ECF No. 1:9). On February 5, 2019, Plaintiff was taken to Comanche County Memorial Hospital and diagnosed with a closed displaced fracture in his right wrist. (ECF No. 1:9). On February 11, 2019, Plaintiff underwent wrist surgery and his arm was stabilized in a splint. (ECF No. 1:9). During recovery, CCDC officials allegedly denied Plaintiff pain medication and the use of a "bone stimulator" which had been prescribed. (ECF No. 1:9).
On March 17, 2019, Mr. Ricketts alleges that he was the victim of a second assault which caused further injury to his wrist which was still in a cast. (ECF No. 1:10). Despite Plaintiff's requests, he was not seen by a doctor until March 26, 2019. (ECF No. 1:10). At that appointment, the doctor stated that the wrist fracture was not healing and again prescribed the bone stimulator, which Plaintiff alleges was again denied by jail officials. (ECF No. 1:10).
On or about April 1, 2019, Plaintiff states that his cast was broken, but jail officials ignored his requests to go to the hospital for a replacement cast. (ECF No. 1:10). Plaintiff was finally seen by a physician on April 15, 2019, and by that time, a yeast infection had developed inside the cast. (ECF No. 1:11). On April 18, 2019, Mr. Ricketts alleges that a jailer pepper sprayed him "for no reason," and that he was "not properly cleaned and detoxed" following the incident. (ECF No. 1:11). Due to "skin abrasions under the cast," Plaintiff had to remove the cast to clean the area, which "exacerbated further injury to the wrist." (ECF No. 1:11). Despite multiple requests, Plaintiff was not seen by a doctor until nearly two weeks later. (ECF No. 1:11). At that appointment, Plaintiff told the physician he had not been receiving the antifungal or anti-inflammatory medication which had been prescribed. (ECF No. 1:11). Plaintiff's wrist was placed in a soft cast and he was referred to a hand surgeon in Oklahoma City. (ECF No. 1:11-12).
As of September 23, 2019, Mr. Ricketts stated that he had not been evaluated by the hand surgeon and continued to have "unmitigated pain." (ECF No. 1:12). Citing "the State's duty to keep [him] safe [and] ... to provide adequate and appropriate medical care," Plaintiff alleges: (1) he has "not been kept safe from harm from other inmates in Comanche County Detention Center" and (2) has received "constitutionally deficient medical care which rises to the level of deliberate indifference due to delays or denials of necessary treatments." (ECF No. 1:12). Specifically, Plaintiff alleges liability against: (1) Defendant Darrington under a theory of failure to protect and (2) Defendant Ortega for a denial of adequate medical care (ECF No. 1:6-14).
Defendants have filed a Motion to Dismiss/Motion for Summary Judgment, arguing, in part, that they are entitled to summary judgment due to Plaintiff's failure to exhaust his administrative remedies. (ECF No. 20). Summary Judgment is appropriate.
Defendants have actually requested dismissal based on non-exhaustion of administrative remedies. (ECF No. 20:25-28). But in doing so, they relied on materials outside of the Complaint. (ECF Nos. 19-4, 19-6, 19-10, 19-20, 20:13-14, 18, 22, 23, 25-28). Plaintiff therefore was on notice to either present all material pertinent to Defendants' Motion or seek leave to conduct additional discovery before responding. See Fed.R.Civ.P. 56(c), (d). Plaintiff submitted no response to Defendants' motion and has offered no objection to the consideration of summary judgment under the current record. Accordingly, the undersigned has treated the Defendants exhaustion argument as one seeking summary judgment, as specifically outlined below. See Fed.R.Civ.P. 12(d), 56(c)(1); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) ("A motion for summary judgment that is supported by affidavits or other materials provided under oath gives the adverse party notice that summary judgment is possible; the adverse party must respond with affidavits or other evidence to show a genuine issue of material fact."); cf. Marquez v. Cable One, Inc., 463 F.3d 1118, 1121 (10th Cir. 2006) (holding that plaintiff had adequate notice of conversion of motion where motion was titled in the alternative with evidentiary materials attached).
Defendants have presented additional theories for dismissal and/or summary judgment. See ECF No. 20:28-49. But the Court need not consider these arguments, as summary judgment is appropriate based on non-exhaustion of administrative remedies. See Farris v. Frazier, No. CIV-12-1099-W, 2014 WL 3749142, at *13 (W.D. Okla. July 29, 2014), aff'd, 599 F. App'x 851 (10th Cir. 2015) (noting that in light of recommendation of summary judgment on grounds of nonexhaustion, "the undersigned need not address the MSJ Defendants' alternative arguments in support of summary judgment.").
II. STANDARD OF REVIEW
Summary judgment is a means of testing in advance of trial whether the available evidence would permit a reasonable jury to find in favor of the party asserting a claim. The Court must grant summary judgment when "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). When considering a motion for summary judgment, the Court views the evidence and the inferences drawn from the record in the light most favorable to the non-moving party. Pepsi-Cola Bottling Co. of Pittsburg, Inc. v. PepsiCo, Inc., 431 F.3d 1241, 1255 (10th Cir. 2005). While the Court construes a pro se litigant's pleadings liberally, such a litigant nevertheless is held to the same rules of procedure as are binding on other litigants. See Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007).
A party that moves for summary judgment has the burden of showing that the undisputed material facts require judgment as a matter of law in its favor. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). To defeat summary judgment, the nonmovant need not convince the Court that it will prevail at trial, but it must cite sufficient evidence admissible at trial to allow a reasonable jury to find in the nonmovant's favor, i.e. to show that there is a question of material fact that must be resolved by the jury. See Garrison v. Gambro, Inc., 428 F.3d 933, 935 (10th Cir. 2005). Parties may establish the existence or nonexistence of a material disputed fact through:
• citation to "depositions, documents, electronically stored information, affidavits or declarations, stipulations ..., admissions, interrogatory answers, or other materials" in the record; or
• demonstration "that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact."Fed.R.Civ.P. 56(c)(1)(A)-(B).
A defendant seeking summary judgment on the basis of an affirmative defense must show that the undisputed material facts establish all of the elements of the defense. See Hutchinson v. Pfeil, 105 F.3d 562, 564 (10th Cir. 1997) ("The defendant ... must demonstrate that no disputed material fact exists regarding the affirmative defense asserted."). If the defendant meets this burden, the burden shifts to the plaintiff to cite evidentiary material that shows there is a genuine factual dispute as to one or more elements of the affirmative defense, absent which summary judgment should be granted in favor of the defendant. Id.
III. UNCONTROVERTED FACTS
In their Motion, Defendants set forth a Statement of Material Facts as to which they contend there is no genuine dispute and supporting citations to evidentiary material, pursuant to Federal Rule of Civil Procedure 56(c)(1) and Local Civil Rule 56.1(b) and (d). See ECF Nos. 19; 20:11-23. Mr. Ricketts has not filed a response to Defendants' motion.
Considering Defendants' motion and Plaintiff's lack of response, the relevant uncontroverted facts are as follows:
1. Plaintiff has been incarcerated in the CCDC since January 12, 2019. (ECF Nos. 19-1; 20:12).
2. Defendant William Hobbs has been the Jail Administrator at CCDC at all times relevant to the allegations in Plaintiff's Complaint. (ECF Nos. 19-20:1; 20:11).
3. Defendants Darrington and Ortega worked at CCDC at times relevant to Plaintiff's allegations as, respectively, a detention officer and a licensed practical nurse. (ECF Nos. 19-15; 19-17; 20:11).
4. When a new inmate is booked into CCDC, he or she is given a copy of the Inmate Handbook which includes a copy of the "Inmate Grievance Procedures"—CCDC's mechanism for resolving inmate complaints. (ECF No. 19-20:1; 20:13; 22-3:16-21).
5. Pursuant to CCDC's Inmate Grievance Procedures, an inmate may file a written grievance "to bring a problem to staff's attention or to appeal a specific staff action." (ECF No. 22-3:16).
6. Grievances may be initiated regarding an alleged violation of rights or policy, an allegedly improper act by a staff member, to resolve an unsafe or unsanitary condition in the facility, or to appeal a decision of a staff member. (ECF Nos. 19-20:2; 20:13; 22-3:17).
7. The Inmate Grievance Procedure permits inmates to voice informal grievances and to submit formal (or "standard") written grievances. (ECF No. 22-3:17-18).
8. With respect to both types of grievances, the inmate must first attempt to resolve his or complaint informally through a written Request to Staff and must attach that Request to Staff to the grievance. (ECF Nos. 19-20:1; 20:13; 22-3:16).
9. A supervisor advised of an informal grievance may attempt to resolve the matter or may direct the inmate to initiate a "formal standard grievance." (ECF Nos. 19-20:2; 20:13; 22-3:18).
10.A standard grievance is submitted to a staff member for forwarding to a supervisor and the supervisor, within seven days, will answer the grievance either verbally or through a formal written response. (ECF Nos. 19-20:2; 22-3:18).
11.If the grievance is improperly filed or concerns an inappropriate issue, the grievance will be returned to the inmate. (ECF Nos. 19-20:2; 20:13; 22-3:17).
12.If the supervisor cannot resolve the grievance within seven days, the grievance will be forwarded to the Administrator who will resolve the issue. (ECF Nos. 19-20:3; 20:14; 22-3:20).
13.If the supervisor resolves the grievance, but the inmate is dissatisfied with the resolution, he or she has five working days after receipt of the notice of the supervisor's decision to appeal to the Jail Administrator. (ECF Nos. 19-20:3; 20:14; 22-3:20).
14.The Jail Administrator then has ten working days to determine the appeal and to reply in writing to the inmate. (ECF Nos. 19-20:3; 20:14; 22-3:20).
15.The Jail Administrator is the final arbiter of inmate grievances. (ECF Nos. 19-20:3; 20:14; 22-3:20).
16.On February 4, 2019, Plaintiff submitted a Request to Staff, alleging that Defendant Darrington had "put[ ] [Plaintiff's] life in danger" and had been harassing Plaintiff "[e]ver since this situation happened Jan. 23rd, 2019;" but the request did not specifically reference the January 23rd incident or make any request for redress regarding the alleged attack. (ECF Nos. 19-6:22; 19-20:4; 20:18).
17.On February 7, 2019, Sergeant Boone responded to the request, stating that he had talked with Captain Orr, who was "looking into the situation." (ECF Nos. 19-6:21; 19-20:4; 20:18).
18.On April 25, 2019, Plaintiff submitted a Request to Staff alleging that he was being denied medical care for his "severely injured" wrist and "broken hand" and requested to be taken to the emergency room for x-rays. (ECF Nos. 19-6:35; 19-20:4; 20:21).
19.Defendant Ortega responded to the request, explaining to Plaintiff that he had an appointment with his doctor. (ECF Nos. 19-6:35; 19-20:4; 20:21).
20.On May 10, 2019, Plaintiff filed a second Request to Staff concerning his hand pain, again, requesting to be taken to the emergency room. (ECF No. 19-6:25).
21.Sergeant Boone response to the second request, telling Plaintiff to file a "sick call slip form" regarding his request. (ECF No. 19-6).
22.On August 31, 2019, Mr. Ricketts filed a Request to Staff which outlined the January 23rd assault and blamed Defendant Darrington for allowing the alleged assailants into Plaintiff's cell, when he had specifically warned jail staff that his life was in danger. (ECF Nos. 19-6:1, 18; 19-20:5; 20:22).
23.Plaintiff did not file a follow-up grievance to the August 31, 2019 Request to Staff specifically discussing the January 23rd incident or attributing any liability for the same to Defendant Darrington. (ECF Nos. 19-20:5; 20:22).
24.On September 19, 2019, Plaintiff filed a grievance which stated: "Jail officials have a duty to protect pretrial detainees from violence at the hand of other prisoners and can be subject to liability on a Fifth Amendment failure to protect claim and a deliberate indifference to Due Process Claim when Jail officials fail to protect pretrial detainees from said violence." (ECF No. 19-4:1).IV. SUMMARY JUDGMENT—NON-EXHAUSTION OF ADMINISTRATIVE REMEDIES
25.The September 19, 2019 grievance did not specifically refer to any action or event, nor did the grievance request any specific action or seek redress of any specific issue. (ECF Nos. 19-4:1; 19-20:3-4; 20:22).
26.Jail Administrator Hobbs returned the September 19, 2019 grievance to Plaintiff, citing his failure to properly utilize the grievance form. (ECF Nos. 19-4:1; 19-20:4; 20:23).
27.The September 19, 2019 grievance was the only grievance form ever received from Plaintiff. (ECF No. 19-20:4; 20:23).
28.Mr. Hobbs never received either: (1) a grievance from Plaintiff which specifically addressed the claims in the Complaint or (2) an appeal of any grievance. (ECF Nos. 19-20:4; 20:23).
In part, the Defendants argue that they are entitled to summary judgment due to Plaintiff's failure to exhaust his administrative remedies on both claims. (ECF No. 20:25-28). The Court should agree.
A. The Exhaustion Requirement
The Prison Litigation Reform Act of 1995 (PLRA) requires a prisoner to exhaust all available administrative remedies before resorting to a § 1983 action in federal court. Specifically, 42 U.S.C. § 1997e(a) provides: "No action shall be brought with respect to prison conditions under § 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. "[E]xhaustion is mandatory under the PLRA and ... unexhausted claims cannot be brought in court." Jones v. Bock, 549 U.S. 199, 211 (2007).
An inmate such as Plaintiff, successfully exhausts his administrative remedies by completing the administrative review process established by the facility grievance policy. Id. at 218. Exhaustion must occur prior to the prisoner bringing a lawsuit on his claims. See 42 U.S.C. § 1997e(a), (h); Porter v. Nussle, 534 U.S. 516, 532 (2002); Woodford v. Ngo, 548 U.S. 81, 90, 93-103 (2006). "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.
"An inmate who begins the grievance process but does not complete it is barred from pursuing a § 1983 claim under PLRA for failure to exhaust his administrative remedies." See Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002); see also Fields v. Okla. State Penitentiary, 511 F.3d 1109, 1112 (10th Cir. 2007) (noting that "substantial compliance [with the exhaustion process] is insufficient." However, courts "are obligated to ensure that any defects in exhaustion were not procured from the action or inaction of prison officials." Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007).
B. Defendants' Motion
Defendants seek summary judgment on the basis of their affirmative defense that Plaintiff's claims are barred because he did not comply with the PLRA's exhaustion requirement. See ECF No. 20:25-28; see generally Jones v. Bock, 549 U.S. 199, 219-20 (2007) ("All [courts] agree that no unexhausted claim may be considered."). Defendants must establish this defense by showing that "administrative remedies were, in fact, available" to Mr. Ricketts when his claims arose and that he "failed to exhaust these remedies." Purkey v. CCA Det'n Ctr., 263 F. App'x 723, 726 (10th Cir. 2008). If Defendants make this showing, the burden shifts to Plaintiff to show a genuine dispute over whether "an administrative remedy, although officially on the books, [was] not capable of use to obtain relief." Ross v. Blake, 136 S. Ct. 1850, 1859 (2016); accord Tuckel v. Grover, 660 F.3d 1249, 1254 (10th Cir. 2011).
C. Plaintiff's Failure to Exhaust Administrative Remedies
The undisputed factual record before the Court, viewed in the light most favorable to Plaintiff as the nonmoving party, demonstrates that administrative remedies were "available to" Plaintiff in the form of CCDC's Inmate Grievance Procedure and that Plaintiff "failed to exhaust these remedies." Purkey, 263 F. App'x at 726; see supra, ECF Nos. 19-6; 19-10; 19-20; 20; 22-3.
As outlined above, Plaintiff failed to appeal the August 31, 2019 Request to Staff related to the January 23rd incident for which he blames Defendant Darrington. See ECF No. 20:22; 19-20:5. And the September 19, 2019 grievance which generally complained of Plaintiff's constitutional rights as a pretrial detainee did not mention the January 23rd incident or Defendant Darrington. See ECF Nos. 19-4:1; 19-20:3-4; 20:22. And although Plaintiff submitted two Requests to Staff alleging a denial of medical care regarding his hand/wrist pain, he did not file any grievances related to this issue. See ECF No. 19-20:4; 20:23. Defendants therefore have met their burden to show that the undisputed material facts establish that Plaintiff failed to exhaust his available administrative remedies as required by the PLRA. See Hutchinson, 105 F.3d at 564; Purkey, 263 F. App'x at 726.
(ECF No. 19-6:25, 35; 19-20:4; 20:21).
Court records indicate that Defendant mailed Plaintiff a copy of the Motion to Dismiss/Motion for Summary Judgment to the address on file for Mr. Ricketts. See ECF No. 20:50. To date, however, Mr. Ricketts has not filed a response or otherwise responded to the allegations and evidence presented by Defendants regarding his failure to exhaust CCDC's administrative remedies. Thus, the Court should conclude: (1) Plaintiff has failed to demonstrate a genuine issue of material fact contrary to Defendants' assertion that Mr. Ricketts has not exhausted his administrative remedies and (2) summary judgment for Defendants is appropriate.
V. MISCELLANEOUS
Mr. Ricketts filed a one-page untitled document with attached "witness statements" which he requested the Court to "add[ed] to the case as evidence." (ECF No. 14). Defendants have filed a motion to strike ECF No. 14 as improper. (ECF No. 26). If the Court adopts the forgoing recommendation, the Court should also grant ECF No. 26.
VI. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
The Court should GRANT: (1) Defendants' dispositive motion (ECF No. 20) on grounds of non-exhaustion of administrative remedies on both of Plaintiff's claims and (2) Defendants' motion to strike (ECF No. 26).
Plaintiff is hereby advised of his right to object to this Report and Recommendation. See 28 U.S.C. § 636. Any objection must be filed with the Clerk of the District Court by April 6, 2020. See 28 U.S.C. § 636(b)(1); and Fed. R. Civ. P. 72(b)(2). Failure to make timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal questions contained herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
VII. STATUS OF THE REFERRAL
This Report and Recommendation terminates the referral. ENTERED on March 18, 2020.
/s/_________
SHON T. ERWIN
UNITED STATES MAGISTRATE JUDGE