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Davis v. Gloria

United States District Court, E.D. Oklahoma

September 17, 2019

JERARD D. DAVIS, Plaintiff,
RAYMOND GLORIA, et al., Defendants.


          Ronald A. White, United States District Judge.

         Plaintiff, a pro se state prisoner who is incarcerated at Oklahoma State Penitentiary in McAlester, Oklahoma, filed this civil rights complaint pursuant to 42 U.S.C. § 1983 (Dkt. 1). He alleges his constitutional rights were violated while incarcerated at Davis Correctional Facility (DCF), a private prisoner in Holdenville, Oklahoma. The defendants are Raymond Gloria, DCF Shift Supervisor; DCF Correctional Officer Crowe; DCF Correctional Officer Hope; and DCF Correctional Officer Quiroz. Defendants have filed a motion for summary judgment (Dkt. 51), and Plaintiff has filed a response to the motion (Dkt. 59).


         Plaintiff alleges that on December 29, 2016, a five-man extraction team consisting of Defendants Crowe, Hope, and Quiroz, along with two additional unknown men, came to Plaintiff's cell and applied seven cans of Oleoresin Capsicum spray to Plaintiff. Defendant Gloria allegedly sprayed the Oleoresin Capsicum spray into Plaintiff's cell vent and door, and Gloria also punched, kicked, and choked Plaintiff. Two guards applied leg restraints to Plaintiff, and three guards applied wrist restraints. The defendants apparently claimed Plaintiff was resisting, however, Plaintiff contends he was protecting himself from further injury. (Dkt. 1 at 8-10).

         Plaintiff's medical report allegedly stated he received two lacerations to his right eye, one laceration to his left eye, and abrasions and active bleeding to his nose. Plaintiff maintains the defendants' acts were unnecessary and constituted an excessive use of force. Id. at 8.

         Plaintiff further complains that after he was restrained, viewed by medical, and decontaminated, he was placed on property restriction until January 3, 2017. During that time he allegedly was battered and bruised because he attempted to file a grievance over this incident. He, however, was denied forms for filing a grievance. He further claims he was denied medical treatment for his injuries, as well as treatment for his swollen feet, because all forms were denied. Finally, Plaintiff contends he repeatedly was threatened by unknown DCF guards “for no reason just to make their self feel big.” Id. at 15.

         Standard of Review

         Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). A dispute is genuine if the evidence is such that “a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material if it “might affect the outcome of the suit under the governing law.” Id. In making this determination, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255. A party opposing a motion for summary judgment, however, may not simply allege there are disputed issues of fact; rather, the party must support its assertions by citing to the record or by showing the moving party cannot produce admissible evidence to support the fact. Fed.R.Civ.P. 56(c). Thus, the inquiry for this Court is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-52.

         Exhaustion of Administrative Remedies

         Defendants have filed a motion for summary judgment for the limited purpose of resolving whether Plaintiff has exhausted the administrative remedies for his claims. The Prison Litigation Reform Act of 1995 (PLRA) requires prisoners to exhaust available administrative remedies before filing a lawsuit concerning prison conditions under 42 U.S.C. § 1983, including Eighth Amendment claims. “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.” 42 U.S.C. § 1997e(a). Inmates are required to exhaust available administrative remedies, and suits filed before the exhaustion requirement is met must be dismissed. Booth v. Churner, 532 U.S. 731, 740-41 (2001); Yousef v. Reno, 254 F.3d 1214, 1216 n.1 (10th Cir. 2001). “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.” Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002) (citation omitted). In deciding a motion to dismiss based on nonexhaustion, the Court can consider the administrative materials submitted by the parties. See Steele v. Fed. Bureau of Prisons, 355 F.3d 1204, 1212 (10th Cir. 2003), abrogated in part on other grounds, Jones v. Bock, 549 U.S. 199 (2007).

         According to the DOC Offender Grievance Process, OP-090124, an inmate first must attempt to resolve his complaint informally by communicating with staff within three days of the incident. If that is unsuccessful, he may submit a Request to Staff (RTS) within seven calendar days of the incident, alleging only one issue per form. If the offender does not receive a response to his RTS within 30 calendar days of submission, he may submit a grievance to the Review Authority (warden's office), asserting only the issue of the lack of response to the RTS. If the complaint is not resolved after the response to the RTS, the offender may file a grievance. If the grievance also does not resolve the issue, the inmate may appeal to the Administrative Review Authority (ARA) or the Chief Medical Officer. The administrative process is exhausted only after all of these steps have been taken. (Dkt. 51-3).

         Defendants allege Plaintiff did not exhaust any issue he has brought before this Court. Plaintiff contends his efforts to access the grievance process were thwarted, thus depriving him of “available” remedies and extinguishing the requirement that he must exhaust all available remedies. “The plain language of the PLRA requires that prisoners exhaust only available remedies. . . . It follows that if an administrative remedy is not available, then an inmate cannot be required to exhaust it.” Tuckel v. Grover, 660 F.3d 1249, 1252 (10th Cir. 2011) (emphasis in original). “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) (citation omitted). Defendants maintain that Plaintiff's allegation that he was unable to exhaust his administrative remedies is not accurate.

         As set forth above, OP-090124(IV)(C)(3) states that an RTS must be filed within seven days of an incident. (Dkt. 51-3 at 7). Plaintiff alleges he was on property restriction between December 29, 2016, which was the day of the incident, and January 3, 2017. During that time, he allegedly was denied the appropriate forms. Defendants assert that even if Plaintiff's claim is true, he nonetheless had two more days until January 5, 2017, to have filed an RTS.

         Terry Underwood, the DCF Grievance Coordinator, states by affidavit that a search of the administrative records showed Plaintiff did not file any grievances related to the December 29, 2016, incident. (Dkt. 51-2 at 3). All the appropriate administrative remedies forms were available to Plaintiff on his housing unit during the December 29-January 3 period. Id. at 4. Ms. Underwood also reviewed the facility's grievance records for that period and states ...

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