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Smith v. Drawbridge

United States District Court, W.D. Oklahoma

May 22, 2018

FRED SMITH, Plaintiff,
v.
JAMES DRAWBRIDGE et al., Defendants.

          REPORT AND RECOMMENDATION

          CHARLES B. GOODWIN, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Fred Smith, a state prisoner appearing pro se, filed this civil rights action alleging violations of federal law. See Compl. (Doc. No. 1) at 1-19. Chief United States District Judge Joe Heaton has referred the matter to the undersigned Magistrate Judge for initial proceedings in accordance with 28 U.S.C. § 636.

         Now before the Court is a Motion for Summary Judgment (Doc. No. 65), filed by Defendants James Drawbridge and Oklahoma Department of Corrections (“ODOC”). Plaintiff has filed a Response (Doc. No. 67) to the summary judgment motion, to which Defendants have replied (Doc. No. 69). In addition, a special report was prepared by relevant prison officials and filed in accordance with the Court's order and Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978). See S.R. (Doc. No. 42); S.R. Ex. 62 (Doc. No. 45). For the reasons set forth below, the undersigned recommends that Defendants' Motion for Summary Judgment be granted. Further, the undersigned recommends that pending motions filed by Plaintiff (Doc. Nos. 70, 71, 72, 73) be denied.

         PLAINTIFF'S CLAIMS AND RELIEF SOUGHT

         Plaintiff's 42 U.S.C. § 1983 claims arise from events alleged to have occurred beginning in April 2014, while Plaintiff was incarcerated at James Crabtree Correctional Center (“JCCC”). See Compl. (Doc. No. 1) at 6.[1] Following dismissal of several claims by the Court, two federal claims remain for disposition. See Smith v. Drawbridge, No. CIV-16-1135-HE, 2017 WL 4776758, at *3 (W.D. Okla. Oct. 23, 2017). First, Plaintiff asserts that Defendant ODOC violated Title II of the Americans with Disabilities Act (“ADA”)[2] by failing to accommodate his disability (the “ADA Claim”). See Compl. at 10, 21-22. Second, Plaintiff contends that JCCC Chaplain Defendant Drawbridge, acting in his individual capacity, violated Plaintiff's rights under the First Amendment's Free Exercise clause by denying “Plaintiff his right to the free exercise of his orthodox Jewish religion and/or substantially burden[ing] this right” (the “Free Exercise Claim”). Id. at 6-11.

         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 nonmoving 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, all parties must adhere to applicable procedural rules. 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 demonstrate that no disputed material fact exists regarding the affirmative defense asserted.” Hutchinson v. Pfeil, 105 F.3d 562, 564 (10th Cir. 1997). “If the defendant meets this initial burden, the plaintiff must then demonstrate with specificity the existence of a disputed material fact” as to one or more elements of the affirmative defense, absent which summary judgment must be granted in favor of the defendant. Id.

         When assessing Defendants' Motion, the undersigned has treated the factual allegations of Plaintiff's verified filings (e.g., the Complaint), and the affidavits submitted by Defendants, as affidavit or declaration evidence to the extent those allegations are sworn or declared under penalty of perjury and are “made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed.R.Civ.P. 56(c)(4); see Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991); see also 28 U.S.C. § 1746.

         ANALYSIS

         I. Whether Plaintiff Failed to Exhaust His Federal Claims

         Defendants first seek summary judgment on Plaintiff's claims on the basis of their affirmative defense of nonexhaustion of administrative remedies. Specifically, Defendants assert that Plaintiff did not, prior to bringing suit on his claims, exhaust his available administrative remedies as required by the Prison Litigation Reform Act of 1995 (“PLRA”), codified in pertinent part at 42 U.S.C. § 1997e(a). See Defs.' Mot. Summ. J. at 18-40; see also Answer (Doc. No. 51) at 14; Jones v. Bock, 549 U.S. 199, 219-20 (2007) (“All [courts] agree that no unexhausted claim may be considered.”).

         A. The PLRA

         The PLRA 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, 93-103 (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)” (internal quotation marks 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. The Oklahoma Department of Corrections' Grievance Process

         ODOC has adopted an offender Grievance Process, OP-090124, through which a prisoner in its custody at any prison facility may seek administrative decisions or answers to complaints. See OP-090124 (eff. Nov. 20, 2014), S.R. Ex. 8 (Doc. No. 42-8).[3] The ODOC Grievance Process requires an inmate initially to attempt informal resolution of his or her complaint by speaking to an appropriate staff member within three days of the relevant incident. See Id. § IV(B). If the inmate is dissatisfied after this initial attempt, then he or she may submit a written “Request to Staff” within seven days of the incident. Id. § IV(C). This first informal level may be bypassed only if the complaint involves a sensitive topic or an emergency. See Id. § VIII(A).

         The next level of the ODOC Grievance Process is the filing of a formal grievance. If dissatisfied with the response received from a Request to Staff, the inmate may file a grievance within fifteen days of the date of the response to a timely Request to Staff. See Id. § V(A)(1). The grievance is submitted to the facility's Reviewing Authority, defined as the “facility head or facility correctional health services administrator.” Id. §§ I(D), V(B)(1). This level may be bypassed only if the grievance involves a sensitive topic concerning the Reviewing Authority. See Id. § VIII(A)(4).

         The final level of the ODOC Grievance Process is the filing of a grievance appeal. If dissatisfied with the response to a grievance, the inmate may file a grievance appeal within fifteen days of the date of that response. See Id. § VII(A), (B). The grievance appeal is submitted to the Administrative Review Authority (“ARA”), defined as the ODOC Director's designee or the ODOC Chief Medical Officer's designee. See Id. §§ I(E), VII(B). A grievance appeal may be filed only upon the following grounds: (1) newly discovered/available evidence not considered by the Reviewing Authority; or (2) probable error committed by the Reviewing Authority such as would be grounds for reversal. Id. § VII(A). The ruling of the ARA is final and concludes the administrative remedy procedures available through ODOC. Id. § VII(D)(1).

         C. Plaintiff's Efforts to Exhaust His ADA Claim

         In Plaintiff's ADA Claim against Defendant ODOC, he asserts that he is “disabled” and “is 70 years old and walks with the assistance of a walker.” Compl. at 6, 21. He further asserts that upon arriving at JCCC on or about April 14, 2014, “he was assigned to an upstairs bunk” in a housing unit that “has stairs outside when entering.” Id. at 21. Plaintiff “was not moved to a downstairs bunk until 2 ½ months later, after he had fallen coming down the stairs and injured himself.” Id. Plaintiff also alleges that “the bathroom and shower” at JCCC are “not properly handicapped accessible.” Id. at 22.

         The undisputed factual record reflects that Plaintiff did not seek administrative relief on his complaint about the JCCC bathroom and shower. Plaintiff did make one relevant grievance attempt regarding his request to be housed on the first floor. On April 21, 2014, Plaintiff submitted an Emergency Grievance asking to be moved “to a bottom run, bottom bunk in an air conditioned unit.” S.R. Ex. 13 (Doc. No. 42-13) at 2. Plaintiff's submission was returned unanswered on the following basis: “Complaint is not of a sensitive and/or emergency nature as described in OP-090124; consequently, the standard grievance process outlined in OP-090124 must be followed.” Id. at 3.

         There is no indication from the record that Plaintiff resubmitted his request through the standard grievance process, as instructed by the Reviewing Authority and as required by OP-090124. See id.; OP-090124 § VIII(C) (“When the appropriate reviewing authority determines that a grievance is not of an emergency or sensitive nature, the grievance will be returned to the offender with notification that the grievance is not of an emergency or sensitive nature and that the standard grievance process must be followed.”); Brewer v. Mullin, 130 Fed.Appx. 264, 265-66 (10th Cir. 2005) (“Mr. Brewer may believe that prison officials erred in deciding his issues were not emergencies, but that does not mean he can simply ignore their determination and opt out of the grievance procedure.”).

         D. Plaintiff's Efforts to Exhaust His Free Exercise Claim

         In his Free Exercise Claim, Plaintiff asserts that Defendant Drawbridge infringed upon Plaintiff's free exercise rights in various ways, including denying Plaintiff “a diet consistent with his . . . religious scruples, ” failing to accommodate Plaintiff's requests for religious services and religious events, denying Plaintiff's request to possess and wear a Katan, and denying Plaintiff's request to have a nonwool blanket. Compl. at 6-11 (internal quotation marks omitted); see also R. & R. (Doc. No. 46) at 30-32.

         1. Complaint That Was Exhausted by Plaintiff

         Defendant concedes, and the record likewise reflects, that Plaintiff fully exhausted the complaint, alleged now in support of his Free Exercise Claim, that Defendant Drawbridge-after issuing a memo in July 2016 stating that for the Fast of Tammuz Plaintiff was to receive a hot meal after 8:30 p.m.-purposely failed to send this memo to the relevant prison official, which caused Plaintiff on that day to be given a cold sack meal. See Defs.' Mot. Summ. J. at 21 & n.6; see S.R. Ex. 55 (Doc. No. 42-55) at 16 (response from ARA denying relief on the merits of Plaintiff's grievance appeal); Compl. at 10; Compl. Ex. 16 (Doc. No. 1-16) at 1.

         2. Complaints for Which Plaintiff Sought No Relief

         As noted by Defendants, undisputed by Plaintiff, and reflected in the record before the Court, Plaintiff failed to seek any administrative relief at all as to the following allegations:

• Defendant Drawbridge poured out kosher grape juice that was sent to Plaintiff by Aleph, an outside nonprofit organization;
• Defendant Drawbridge denied Plaintiff's proposal for observance of Rosh Hashanah on September 24, 2015;
• Defendant Drawbridge denied Plaintiff's February 2016 proposal regarding Passover observance in the JCCC visiting room;
• Defendant Drawbridge refused to request food items from Aleph “even when they are offered free”;
• Plaintiff was not allowed “to consume matzah or challah bread for Sabbath and other observances”;
• Plaintiff “is forced to mix wool with linen, violating Shatnez by being denied a ...

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