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Womble v. Harvanek

United States District Court, E.D. Oklahoma

September 26, 2019

JOSEPH Z. WOMBLE, Plaintiff,
v.
KAMERON HARVENEK, Defendant.

          OPINION AND ORDER

          Ronald A. White United States District Judge

         Plaintiff Joseph Z. Womble, a pro se state prisoner who is incarcerated at Lexington Correctional Center in Lexington, Oklahoma, appealed the dismissal of this civil rights action. The Tenth Circuit Court of Appeals reversed this Court’s judgment and remanded for further proceedings. Womble v. Harvanek, 739 F. App’x 470 (10th Cir. 2017) (Dkt. 32). The appellate court held that this Court erred in granting Defendant Kameron Harvanek’s motion to dismiss Plaintiff’s allegations concerning his lack of access to a sufficient supply of uncontaminated drinking water at Mack Alford Correctional Center (MACC) during a time of high cell temperatures. Id. at 473-75.

         Following the remand, and at the direction of the Court, Defendant filed a special report in accordance with Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978) (Dkt. 92) and a motion for summary judgment (Dkt. 93). Plaintiff has filed a response to the motion (Dkt. 97).

         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.

         Facts

         The Tenth Circuit summarized the facts of the case as follows:

In his complaint, Womble alleged that Harvanek “is wholly responsible for the day to day operations of the [MACC] and is responsible for Plaintiff’s injury.” Womble explained that in August 2015, the ice machine and water fountain in his housing unit at MACC stopped working and neither was replaced.
He alleged that the temperatures in his cell exceeded 90 degrees over 15 times in June 2016 and that he became severely dehydrated on three different occasions that month. He asserted that he filed a complaint with the warden on two different occasions that month and that “[t]he complaint was regarding the heat and lack of cold[, ] uncontaminated drinking water.”
Harvanek responded to Womble’s initial complaint (also called a “request to staff”) by “telling Plaintiff to drink the water from his cell sink.” But Womble alleged that the water from his cell sink “is contaminated, brown in color, and often made Plaintiff sick from drinking [it]. Plaintiff would vomit many times after drinking this water.”
In his next complaint/request, Womble “complained that because the temperature was so high on Plaintiff’s cellblock, and in Plaintiff’s cell, Defendant must provide cold[, ] uncontaminated drinking water by providing a water fountain.” He alleged that “Defendant responded denying relief stating ‘You have [enough] ice and water to prevent dehydration.[’]” But Womble alleged that “the cell water was contaminated and warm, and ice was being provided once per day. Plaintiff received one 6 oz scoop of ice per day, half-melted because of the heat.”

         He further alleged:

By subjecting Plaintiff to extreme conditions of confinement, specifically excessive heat, forcing Plaintiff to choose between drinking warm, contaminated drinking water or no water at all with full knowledge that this was causing Plaintiff injury and that these conditions are extremely dangerous, Defendant has acted with deliberate indifference to Plaintiff’s health and safety needs, in violation of his rights under the Eighth and Fourteenth Amendments to the United States Constitution.

Womble, 739 F. App’x at 471-72 (emphasis in original).

         Exhaustion of Administrative Remedies

          Defendant alleges Plaintiff has failed to exhaust the administrative remedies for his claims.[1] “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).

         According to the DOC Offender Grievance Process, OP-090124, an inmate first must attempt to resolve his complaint informally by communicating with appropriate staff within three days of the incident. (Dkt. 92-2 at 6). 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. Id. at 6-7. 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. Id. at 7-8. If the complaint is not resolved after the response to the RTS, the offender then may file a grievance. Id. at 8. If the complaint is medical, the grievance must be submitted to the facility Correctional Health Services Administrator (CHSA). Id. Grievances that are an emergency or of a sensitive nature can be submitted directly to the reviewing authority without informal resolution. Id. at 14. This is appropriate where the inmate faces a substantial risk of personal injury, sexual harm, or other irreparable harm. Id. If the grievance also does not resolve the issue, the inmate may ...


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