United States District Court, E.D. Oklahoma
JERARD D. DAVIS, Plaintiff,
RAYMOND GLORIA, et al., Defendants.
OPINION AND ORDER
A. White, United States District Judge.
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
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).
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.
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.
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.
of Administrative Remedies
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).
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.
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
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.
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