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Hines v. Allbaugh

United States District Court, W.D. Oklahoma

August 2, 2019

JOE ALLBAUGH, et al., Defendants.



         Plaintiff filed this action pursuant to 42 U.S.C. § 1983 alleging violation of his constitutional rights with regard to certain conditions of confinement at two facilities where he has been housed while an inmate in the custody of the Oklahoma Department of Corrections. Pursuant to 28 U.S.C. § 636(b)(1)(B), the matter was referred to United States Magistrate Judge Shon T. Erwin for consideration. The Court has previously reviewed certain Reports and Recommendations issued by Judge Erwin, and the issues remaining in the case for resolution revolve around Plaintiff's incarceration at the Davis Correctional Facility (“DCF”).[1] Currently before the Court is a February 12, 2019 Report and Recommendation wherein Judge Erwin recommends that the Motion for Summary Judgment filed by Defendants Yates, Robinson, Stanley, Costello, Underwood, Burney, Berry, and Johnson be granted.[2] The matter is currently before the Court on Plaintiff's timely objection to the Report and Recommendation, which gives rise to the Court's obligation to conduct a de novo review of those portions of the Report and Recommendation to which Plaintiff makes specific objection. Having conducting this de novo review, the Court finds as follows.

         The Report and Recommendation addresses Counts 3, 4, 5, 6, and 8 of Plaintiff's Amended Complaint and recommends that summary judgment be granted to the moving Defendants on Claims 3, 4, and 8 because Plaintiff did not exhaust his administrative remedies prior to filing suit.[3] Judge Erwin recommends that Counts 5 and 6 be dismissed without prejudice for failing to state a clam.

         In Objection No. One, Plaintiff challenges the finding at page 10 of the Report and Recommendation wherein Judge Erwin concluded that Count 5 was exhausted in part, but only with respect to a defendant voluntarily dismissed by Plaintiff, Ms. Bailey. (Doc. No. 169, p. 6). In Claim No. Five, labeled “Failure to Protect, ” Plaintiff asserts his belief “that the following prison officials has violated [his Eighth Amendment] rights: and/or acquiesced in the violations/deprivations: Shauna Baily, Antwan Berry, Joe Allbaugh, and Mark Knutson, and Marty Garrison.” (Doc. No. 45, p. 39).[4] In his objection Plaintiff argues:

The documents attached to Plaintiff's pleadings demonstrate not only alleged Destiny Bailey's involvement in the failure to Protect Claim No. Five - but also Berry, yates, Allbaugh/Knutson through their failure to adequate train, supervise, and discipline Ms. Bailey. (Claim No. Six).

Doc. No. 169, p. 6. The Court does not construe this argument as directly challenging Judge Erwin's conclusion that Claim No. Five is subject to dismissal. Accordingly, the Objection provides no basis for modification or rejection of the Report and Recommendation as to Claim No. Five.

         In Objection No. Two, Plaintiff seemingly acknowledges that he did not fully exhaust any of his grievances. He asserts that he “filed all of his complaints- under the Emergency or Sensitive Grievance Procedure O90124(VIII)(A)(1) and (2), as they relate to Plaintiff's Denial of Access to the Courts Claim.” (Doc. No. 169, p. 7. Plaintiff thereafter asserts that the improper denial of his emergency or sensitive grievances as allegedly not emergency or sensitive, both at the administrative review level by Underwood and Yates or at the administrative review authority by Allbaugh or Knutson, was in violation of Department of Corrections policy because the grievances were indeed emergency or sensitive. Plaintiff argues, “[t]he next question is, was the grievances that Yate/Underwood rejected truly emergency sensitive in nature[?]” (Id.).

         As noted in the Report and Recommendation and acknowledged by Plaintiff, the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a), requires “proper exhaustion of administrative remedies, ” Woodford v. Ngo, 548 U.S. 81, 84 (2006). Proper exhaustion means that an inmate must use “all steps that the agency holds out, and do[] so properly.” Id. at 90 (internal quotation marks and citation omitted). Recently the Supreme Court held that exhaustion under the PLRA is mandatory, and the Court may not excuse a failure to exhaust, even in “special circumstances.” Ross v. Blake, __ U.S. __, 136 S.Ct. 1850, 1857 (2016). Thus, all available prison remedies must be exhausted before a plaintiff may proceed with his claims.

         Both Judge Erwin and Plaintiff set forth the steps for exhaustion delineated in the Department of Corrections policy, specifically OP-090124, which addresses both regular and emergency/sensitive grievance procedures. However, for ease of reference, the Court summarizes the grievance process again.

According to OP-090124(IV), an offender must first attempt to informally resolve his complaint by talking with the appropriate staff member. See OP-090124(IV). If unsuccessful, then the offender must submit a Request to Staff (“RTS”) to the appropriate staff member. Id. at (IV)(C). If the offender's complaint remains unresolved, the offender may begin the formal grievance procedure by submitting a Grievance to the Reviewing Authority. Id. at (V). If the complaint is medical related, the offender must submit the Grievance to the facility Correctional Health Services Administrator (“CHSA”). Id. at (V)(B)(1). Grievances that are an emergency or of a sensitive nature can be submitted directly to the Reviewing Authority without informal resolution. This is appropriate where the inmate faces a substantial risk of personal injury, sexual harm or other irreparable harm. Id. at (VIII). If a grievance response fails to resolve the issue, the inmate should appeal to the Administrative Review Authority (“ARA”), or if the complaint is medical related, to the Chief Medical Officer. Id. at (VII).

Johnson v. Marlar, No. CIV-16-440-JHP-SPS, 2019 WL 1756288, *5 (E.D. Okla. Apr. 19, 2019). If an inmate designates a grievance as emergency or sensitive and submits it directly to the reviewing authority, the reviewing authority may reject the grievance because it is neither emergency nor sensitive. An inmate's recourse is either to appeal to the administrative review authority or to utilize the “standard” grievance procedures. If the administrative review authority rejects the issue on the grounds that it is not an emergency or sensitive, the inmate should utilize the standard grievance process.

         Plaintiff herein filed a number of grievances labeled as emergency/sensitive, most of which were rejected by the reviewing authority or administrative review authority, or both, on the basis that they did not raise emergency or sensitive issues. Plaintiff did not re-submit any of these grievances through the standard non-emergency grievance process. In certain circumstances he also approached the Administrative Review Authority directly, which rejected the emergency or sensitive designation affixed by Plaintiff. Plaintiff's objection to the Report and Recommendation is largely directed at what he considers the improper determination by the Reviewing Authority and/or Administrative Review Authority that his grievances were not sensitive or emergency. He contends that these improper decisions regarding the nature of his grievances thwarted his efforts to exhaust, because the issues raised therein constituted emergencies or were sensitive issues, often times because the person about whom Plaintiff was complaining was Defendant Burney, who directly supervised Mr. Hines in his role as inmate legal assistant.

         Plaintiff first addresses Grievance 2017-169, which he submitted as Emergency or Sensitive on July 12, 2017. (Doc. No. 117-4, p. 21)). Warden Yates returned the Grievance unanswered, because he did not perceive it to be an Emergency or Sensitive. (Id., p. 20). Plaintiff does not contend that he resubmitted the grievance via the standard process; rather, he filed an appeal to the administrative review authority. Mark Knutson rejected the appeal as improperly filed because it was received out of time from the date of the facility head response. Pursuant to OP-090124, Plaintiff had fifteen days from the date he received his rejection to lodge his appeal. Plaintiff does not challenge Knutson's ability to reject his appeal as untimely or the calculation of the time by Mr. Knutson. Rather, he asserts that the error was in the determination that it did not raise an emergency or sensitive issue. (Doc. No. 169, p. 8).[5]

         To the extent Plaintiff complains that emergency grievances were improperly rejected as such by the reviewing authority or administrative review authority, DOC policy grants to those bodies the discretion for making such a decision. “When the appropriate reviewing authority determines that a grievance is not of an emergency or sensitive nature, the inmate/offender will be provided written notification that the grievance is not of an emergency or sensitive nature and that the standard grievance process must be followed. OP-090124(VIII)(D)(eff. dates 07-19-2016 and 10-18-2017). Plaintiff's disagreement regarding the emergency/sensitive nature of his grievances does not support a cause of action against any Defendant, nor does it excuse exhaustion. As stated by the Court in Thomas v. Parker, 609 F.3d 1114 (10th Cir. 2010), “Plaintiff's disagreement with prison officials as to the appropriateness of a particular procedure under the circumstances, or his belief that he should not have to correct a procedural deficiency does not excuse his obligation to comply with the available process.” Id. at 1119 (internal quotation marks and citation omitted); Rachel v. Trout, 764 Fed.Appx. 778 (10th Cir. 2019); Brewer v. Mullin, 130 Fed.Appx. 264, 265-66 (10th Cir. 2005) (“Mr. Brewer may believe that prison officials erred in deciding his issues ...

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