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Hines v. Allbaugh

United States District Court, W.D. Oklahoma

September 5, 2019

JOE ALLBAUGH, et al., Defendants.



         Plaintiff Thurman Harvey Hines, a state prisoner appearing pro se and in forma pauperis, filed this action pursuant to 42 U.S.C. § 1983 on August 20, 2015, alleging violations of his constitutional rights. See Doc. 1. Of the numerous claims originally asserted by Plaintiff, only three remain:

• a First Amendment retaliation claim against Defendants Heather Hill and Mitzi Estraca in their individual capacities based on their alleged failure to provide Plaintiff with hygiene supplies;
• a First Amendment retaliation claim against Defendants Hill and Estraca in their individual capacities based on their alleged reclassification of Plaintiff s custody level; and
• state law claims for intentional and negligent infliction of emotional distress against Defendant Jennifer Morris in her individual capacity.

See Docs. 113, 160. Pursuant to 28 U.S.C. § 636(b)(1), the Court referred this matter to United States Magistrate Judge Shon T. Erwin. On April 30, 2018, Defendants Hill, Estraca, and Morris filed a Motion for Summary Judgment (Doc. 168), to which Plaintiff responded (Doc. 170) and Defendants replied (Doc. 171). On October 25, 2018, Plaintiff filed an Amended Motion for Summary Judgment (Doc. 188), to which Defendants responded (Doc. 195). On January 24, 2019, Judge Erwin issued his Report and Recommendation (Doc. 197), wherein he recommended that summary judgment be granted to Defendants on Plaintiff's First Amendment claims, and that the Court decline to exercise supplemental jurisdiction over Plaintiff's state law claims. Judge Erwin also recommended that Plaintiff's Amended Motion for Summary Judgment be denied as moot. Plaintiff timely objected to the Report and Recommendation, see Doc. 198, giving rise to the Court's obligation to undertake a de novo review of those portions of the Report to which Plaintiff makes specific objection. See Fed. R. Civ. P. 72(b)(3). Having conducted this de novo review, the Court ADOPTS Judge Erwin's Report and Recommendation, GRANTS summary judgment to Defendants on Plaintiff's First Amendment claims, DECLINES to exercise supplemental jurisdiction over Plaintiff's state law claims, and DENIES as moot Plaintiff's summary judgment motion.

         Judge Erwin recommends the Court grant summary judgment to Defendants based on Plaintiff's failure to exhaust administrative remedies before filing this action. See Doc. 197, at 17-18. The Prison Litigation Reform Act (“PLRA”) mandates that an inmate cannot bring an action “with respect to prison conditions under section 1983 . . . until such administrative remedies as are available are exhausted.” 42 U.S.C. 1997e(a); see also Jones v. Bock, 549 U.S. 199, 211 (2007) (“There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court.”). As failure to exhaust under the PLRA is an affirmative defense, “Defendants . . . bear the burden of asserting and proving that . . . [P]laintiff did not utilize administrative remedies.” Tuckel v.Grover, 660 F.3d 1249, 1254 (10th Cir. 2011). But “[o]nce a defendant proves that a plaintiff failed to exhaust . . ., the onus falls on the plaintiff to show that remedies were unavailable to him . . . .” Id. To “properly exhaust administrative remedies[, ] prisoners must ‘complete the administrative review process in accordance with the applicable procedural rules'-rules that are defined not by the PLRA, but by the prison grievance process itself.” Jones, 549 U.S. at 218 (quoting Woodford v. Ngo, 548 U.S. 81, 88 (2006)). Thus, “[a]n inmate who begins the grievance process but does not complete it is barred from pursuing a § 1983 claim under [the] PLRA for failure to exhaust his administrative remedies.” Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002).

         The Oklahoma Department of Corrections grievance process dictates the steps Plaintiff must have taken to exhaust his Section 1983 claims. See Doc. 78-7 (Oklahoma Department of Corrections offender grievance process). First, the offender, before submitting a Request to Staff, “must try to resolve the complaint by talking with the affected staff, supervising employee or other appropriate staff within three days of the incident.” Id. at 7. If this attempt at informal resolution fails, the offender must submit a Request to Staff “detailing the issue/incident completely but briefly.” Id. The Request to Staff “must be submitted within seven calendar days of the incident, and only one issue or incident is allowed per form.” Id. at 8. The staff member assigned to a particular Request to Staff “will respond in writing within ten working days of receipt . . . .” Id. If the Request to Staff has not been responded to within thirty days of submission, or if the matter addressed in the Request remains unresolved, the inmate “may file a grievance to the reviewing authority with a copy of the Request to Staff attached to the grievance form.” Id. at 8-9. The grievance shall raise only one issue or incident. Id. at 9. The reviewing authority will respond to a grievance within fifteen working days of receipt. Id. at 10. The offender may appeal this response to the Administrative Review Authority within fifteen days of the reviewing authority's decision. See id. at 12-15.[1] The Administrative Review Authority's ruling is final and constitutes exhaustion of an offender's administrative remedies.

         Offenders may also submit emergency or sensitive grievances, which have a shortened administrative process.[2] Emergency grievances “may be submitted directly to the reviewing authority” without attempts at informal resolution or requests to staff. Id. at 15. Upon receipt of the grievance, the reviewing authority must determine within twenty-four hours whether “it is in fact an emergency or sensitive grievance.” Id. at 16. If the reviewing authority determines that the grievance is in fact not of an emergency or sensitive nature, “the offender will be provided written notification” of this determination, and “the standard grievance process must be followed.” Id. at 17.

         Applying this grievance process to Plaintiff's actions, Judge Erwin found that Plaintiff had not exhausted his First Amendment retaliation claims. As to Plaintiff's First Amendment claim premised on alleged failure to supply hygiene products, Judge Erwin noted that Plaintiff raised this issue twice, first in grievance 15-64, dated July 7, 2015, and then in a Request to Staff dated August 24, 2015. See Doc. 197, at 9-10; see also Docs. 78-19, 78-32. The warden returned Grievance 15-64 unanswered on July 8, 2015, for two reasons: (1) “No informal action, ‘Request to Staff' response” and (2) “Other: More than one issue i.e. unanswered Request to Staff, hygiene supplies.” Doc. 78-19, at 3.[3] The notification informed Plaintiff that he would be afforded another attempt to properly submit his grievance within ten days. Id. There is no indication in the record that Plaintiff utilized this opportunity or took any other steps.

         As noted, on August 24, 2015, Plaintiff initiated an attempt at informal resolution by filing a Request to Staff, noting therein his previously filed grievance 15-64. Plaintiff stated that he had requested an indigent care package but was informed that he would not receive one until August 14, 2015. Doc. 78-32, at 2. He asserted that despite being told he would receive hygiene products on that date, none had been provided, and he was still without the items needed. On August 25, 2015, the request was answered by informing Plaintiff that his request for hygiene products was being processed and that he would receive such products that week. He was told that if he ran out between packages he should see his case manager, and that this procedure had been explained to him. Id. Plaintiff took no subsequent action on the Request to Staff.

         As to the First Amendment claim premised on alleged custody level reclassification, Judge Erwin noted that Plaintiff raised this issue in two grievances, 15-78 and 15-79, both filed on July 24, 2015 and identified by Mr. Hines as “Emergency or Sensitive.” See Doc. 197, at 10-11; see also Doc. 78-25.[4] The warden returned both grievances unanswered on July 31, 2015, for “[c]ontinued procedural defects.” Doc. 78-25, at 4. Additionally, Plaintiff was placed on a twelve-month grievance restriction for “continued abuse of the grievance process.” Id.[5] Reviewing the record, Judge Erwin concluded that Plaintiff had failed to follow the grievance process in seeking relief on these issues and, therefore, had not properly exhausted his First Amendment retaliatory reclassification claims. Doc. 197, at 9-11.

         Plaintiff's primary objection to Judge Erwin's Report is that he was thwarted from properly exhausting his administrative remedies through prison officials' improper screening of his grievances. See Doc. 198, at 6-7. “Where prison officials prevent, thwart, or hinder a prisoner's efforts to avail himself of an administrative remedy, they render that remedy ‘unavailable' and a court will excuse the prisoner's failure to exhaust.” Little v. Jones, 607 F.3d 1245, 1250 (10th Cir. 2010); see also Ross v. Blake, 136 S.Ct. 1850, 1860 (2016) (administrative remedies may be rendered unavailable “when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.”). But Plaintiff's thwarting arguments are unsupported by the record. Indeed, beyond mere conjecture and simple disagreement with the decisions of prison officials, Plaintiff offers no evidence that his grievances were improperly screened or rejected, or that he could not avail himself of the administrative grievance process at any juncture.

         Instead of offering evidence of thwarting, Plaintiff discusses in detail Sapp v.Kimbrell, a Ninth Circuit decision dealing with the thwarting exception to the PLRA's exhaustion requirement. See Doc. ...

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