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Trecker v. Kalinch

United States District Court, E.D. Oklahoma

September 30, 2019

CHAZZLYN KALINCH, a.k.a. Chazzlyn Kalinich, and JAMES YATES, Defendants.


          Ronald A. White United States District Judge

         Plaintiff, an inmate in the custody of the Oklahoma Department of Corrections (DOC) who is incarcerated at Oklahoma State Penitentiary, brings this action under the authority of 42 U.S.C. § 1983. He is seeking relief for alleged constitutional violations during his incarceration at Davis Correctional Facility (DCF), a private prison in Holdenville, Oklahoma. The defendants are DCF Correctional Officer Chazzlyn Kalinch, a.k.a. Chazzlyn Kalinich, and DCF Warden James Yates. The Court has before it for consideration Plaintiff’s complaint (Dkt. 1), a special report prepared by DCF officials at the direction of the Court, in accordance with Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978) (Dkt. 21), and Defendants’ motion for summary judgment (Dkt. 26). Plaintiff has not filed a response to the motion.

         Plaintiff alleges Defendant Kalinich escorted him from his housing unit to medical for an examination after Plaintiff was sprayed with OC spray. Following the exam, Plaintiff and his cellmate, Darrell Whitaker, were taken to the maximum security segregation building. Whitaker and Plaintiff were placed in separate strip-out cages, and padlocks were used to secure the cages. Mechanical restraints also were applied for the safety and security of the facility. Officers escorted Whitaker to Cell 114, where they stripped him of his clothing and belongings. He was left with a just a mattress in an empty cell. (Dkt. 1 at 4).

         When Officers told Plaintiff he would be placed in Cell 113, he asked to speak to a supervisor, because he felt his life was in danger and he could not go into that cell. Defendant Kalinich said, “You can get dealt with we aren’t playing that bullshit today.” Kalinich then stood at the cage and harassed Plaintiff by calling him “punks” and “bitches” and saying he (Kalinich) had been waiting to beat on him. Plaintiff had “shouldered” the cage when the padlock was secured in an attempt to get another officer’s attention. Id.

         Approximately one or two minutes later, Defendant Kalinich opened the cage door, and Plaintiff went to the back of the enclosure. Kalich then delivered multiple blows to Plaintiff’s head while Plaintiff was restrained by handcuffs, until Plaintiff was bleeding and unconscious. Captain Gloria stopped the assault by telling Kalich that was enough. Id. at 4-5.

         Plaintiff was seen immediately in medical and then was transported to an emergency room in Holdenville, where he received seven staples in the right side of his head above his ear. Upon returning to the prison, he was housed in the main medical area. He claims he experienced nerve pain in the left side of his jaw and head and could not eat because of the pain in his jaw. Id. at 5.

         After 48 hours of observation, Plaintiff was returned to segregation where he began the grievance process regarding excessive force. He received ibuprofen for his pain. He wrote a sick call for dental services, because of the bruising under his jaw and in his face. The dentist referred him to a clinic in Oklahoma City, and he was transported there. He was diagnosed with severe bruising and pulled muscles in his jaw. Id. at 5-6.

         Plaintiff further alleges officers provoked, harassed, and retaliated against him for having filed paperwork about the incident. He was fed sack lunches for 25 days and claims he was deprived of proper nutrition, as evidenced by his 14-pound weight loss while eating the restricted meals. He claims he was afraid to leave his cell because of the officers’ threats, and he suffered severe mental trauma and emotional distress. His request to transfer to another facility was denied. He also complains that the same person who responded to his Request to Staff reviewed cameras with the reviewing authority, which he “feel[s] is not right.” Finally, Plaintiff alleges Warden Yates is listed as a defendant because Yates watched a recording of the incident, allowed the incident to occur, and failed to attempt to correct the officer’s misconduct. Id. at 6-7.

         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 allege, among other things, that Plaintiff has failed to exhaust the administrative remedies for any issue other than his claim of excessive force occurring on March 22, 2017. While Plaintiff outlines an Eighth Amendment excessive force claim, he also asserts he was retaliated against and harassed for filing grievances after the incident, and he was provided sack lunches instead of a regular food tray. He, however, did not file grievances about those issues.

         “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).

         Terry Underwood, DCF Grievance Coordinator, states by affidavit that at all times relevant to this action, an administrative remedies grievance policy was available for inmates at the facility. DCF utilizes Oklahoma DOC ...

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