United States District Court, N.D. Alabama, Eastern Division
Kenneth A Gardner, Sr, Plaintiff, Pro se, Anniston, AL.
For Calhoun County Sheriff's Office, Williams, Officer, Lt Abernathy, Star, Sgt, Garlike, Sgt, Defendants: Fred Lee Clements, Jr, LEAD ATTORNEY, WEBB & ELEY PC, Montgomery, AL.
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
T. MICHAEL PUTNAM, UNITED STATES MAGISTRATE JUDGE.
The plaintiff, Kenneth Allen Gardner, Sr., was incarcerated in the Calhoun County Jail when he filed this pro se action pursuant to 42 U.S.C. § 1983 on November 30, 2012. (Doc. 1). He alleges that at that facility, defendants Officer Williams, Lt. Abernathy, Sgt. Starr, and Sgt. Garlike subjected him to cruel and unusual punishment. (Id. at 3-5). As compensation for the alleged constitutional violations, the plaintiff seeks monetary and injunctive relief. (Id. at 5). In accordance with the usual practices of this Court and 28 U.S.C. § 636(b)(2), the complaint was referred to the undersigned magistrate judge for a preliminary report and recommendation. See McCarthy v. Bronson, 500 U.S. 136, 111 S.Ct. 1737, 114 L.Ed.2d 194 (1991).
I. Procedural History
On April 1, 2013, an Order for Special Report was entered directing the defendants to respond to the allegations in the plaintiff's complaint. (Doc. 5). On August 1, 2013, the defendants filed a special report accompanied by copies of applicable portions of the plaintiff's inmate file and the affidavit of Jail Administrator Eric Starr. (Doc. 22). The defendants also filed an answer. (Doc. 23). On October 1, 2013, the undersigned entered an order construing the defendants' special report as a motion for summary judgment, and instructed the plaintiff to respond to the motion within twenty (20) days from the entry date of the order. (Doc. 24). The plaintiff filed no response. On May 29, 2014, the undersigned entered a report and recommendation, recommending that summary judgment be granted in favor of the defendants. (Doc. 26). The plaintiff was afforded twenty (21) days to object to the recommendation. (Id. at 11). The plaintiff filed no objections.
The defendants' special report, the order construing the report as a motion for summary judgment, and the summary judgment report and recommendation were mailed to the plaintiff at the Calhoun County Jail. However, according to exhibits submitted by the defendants in their special report, he was released from that facility on April 11, 2013. See supra , n.1. Since the plaintiff provided a home address in his complaint, on July 1, 2014, the summary judgment report and recommendation was withdrawn, and the clerk was directed to send a copy of the defendants' motion for summary judgment (docs. 22 & 23) to the plaintiff at his home address. (Doc. 28). The plaintiff was notified he would have thirty days to respond to the motion for summary judgment, filing affidavits or other material if he chose. (Id. at 3). He also was advised of the consequences of any default or failure to comply with Fed.R.Civ.P. 56. (Id. at 2-3) (citing Griffith v. Wainwright, 772 F.2d 822, 825 (11th Cir. 1985)). The plaintiff has not responded.
II. Standard of Review
Because the special report of the defendants is being considered a motion for summary judgment, the court must determine whether the moving parties, the defendants, are entitled to judgment as a matter of law. Summary judgment may be granted only if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Federal Rule of Civil Procedure 56(e) . In making that assessment, the court must view the evidence in a light most favorable to the non-moving party and must draw all reasonable inferences against the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden of proof is upon the moving party to establish his prima facie entitlement to summary judgment by showing the absence of genuine issues and that he is due to prevail as a matter of law. See Clark v. Coats & Clark, Inc., 929 F.2d 604 (11th Cir. 1991). Once that initial burden has been carried, however, the non-moving party may not merely rest upon his pleading, but must come forward with evidence supporting each essential element of his claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Barfield v. Brierton, 883 F.2d 923 (11th Cir. 1989). Unless the plaintiff, who carries the ultimate burden of proving his action, is able to show some evidence with respect to each element of his claim, all other issues of fact become immaterial, and the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Bennett v. Parker, 898 F.2d 1530 (11th Cir. 1990). As the Eleventh Circuit has explained:
Facts in dispute cease to be " material" facts when the plaintiff fails to establish a prima facie case. " In such a situation, there can be 'no genuine issue as to any material fact, ' since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial." [citations omitted]. Thus, under such circumstances, the public official is entitled to judgment as a matter of law, because the plaintiff has failed to carry the burden of proof. This rule facilitates the dismissal of factually unsupported claims prior to trial.
898 F.2d at 1532.
III. Undisputed Facts
Applying the above standard to the facts before the court, the following facts are undisputed or, if disputed, are taken in a light most favorable to the plaintiff. On August 10, 2012, the plaintiff was arrested for Domestic Violence, Unlawful Manufacture of Methamphetamine, Possession of a Controlled Substance, and Possession of Drug Paraphernalia. (Doc. 22-1, Ex. A at 1-9). At his preliminary hearing on September 10, 2012, the plaintiff was in the courtroom and asked Officer Williams to take him to the restroom. (Doc. 1 at 3, 5). Officer Williams refused the request and when the plaintiff could no longer wait, he urinated on the floor. (Id. at 3). The plaintiff was removed from the courtroom and returned to the jail where he was stripped naked, put in a " turtle suit" in the suicide room, and given only a blanket made of the same material as the turtle suit. (Id. at 3-4). The suicide room is " a room about 4 feet wide and 9 feet long, " containing only " an overhead bright light[.]" (Id. at 4). Therefore, the plaintiff had no way " to wash [his] hands or . . . " use the bathroom." (Id.).
The plaintiff alleges he was " almost forgotten about a few times" during the eight-day period. (Id.). As a result, he did not get fed on a few occasions, and had to beg for water, a shower, and to use the restroom. (Id.). The plaintiff declares that he " had to hold on to [his] drink carton so [he] could relieve himself most of the time" because " most of the time [he] would ask to go to the restroom . . . they would tell [him] in a min[ute], " but would not reappear " 2 or 3 hours" and by then it was " too late." (Id.).
Based upon these facts, the plaintiff maintains he was subjected to cruel and unusual punishment while in the Calhoun County Jail. (Id. at 5). He wants " to [e]nsure no one else has to endure" what he did, demands $50, 000 for his pain and suffering, and that the charges against him be " abolished." (Id.).
Pursuant to a plea agreement, on April 11, 2013, the plaintiff pleaded guilty to felony possession of drug paraphernalia and assault second degree. (Doc. 22-5 at 5-8). He received two concurrent 15 year sentences, split, with time served on the split. (Id. at 5, 7). Two other charges, possession of controlled substance and possession of drug paraphernalia, were dismissed nolle prosequi. (Id. at 3). The plaintiff was placed on probation and released to " APD." (Id. at 4). The inmate release form reads that " APD will extradite." (Id. at 2).
The plaintiff admits Calhoun County Jail has a " prisoner grievance procedure." (Id. at 2). He declares he " asked for a form to file a gr[ie]vance but was told [he] couldn't wasn't [sic] allowed to file a complaint." (Id.). All defendants are deputies in the Calhoun County Jail.
A. Exhaustion of Administrative Remedies
1. The defendants' motion to dismiss
The defendants move to dismiss the plaintiff's case on the basis that he failed to exhaust the administrative remedies available to him at the Calhoun County Jail. (Doc. 22 at 6-9; Doc. 22-5 at, 4-6). In support of their motion, the defendants submitted the affidavit of Jail Administrator Eric Starr. (Doc. 22-5, Ex. E). Starr attests the jail " has a procedure for handling requests and grievances from inmates." (Id. at 4). The grievance procedure is set out in the Inmate Handbook, a copy of which is given to an inmate " at booking." (Id. at 5). The Jail has separate forms for requests, grievances and medical matters. (Id. at 4).
" It is the policy of the Calhoun County Sheriff's Office that members of the Calhoun County Jail staff receive and answer any written grievances or requests by inmates to any employee of the Calhoun County Sheriff." (Id.). Moreover,
[a] cart is pushed through the jail by a corrections officer twice daily and inmates may place their grievance or request form in the boxes on this cart. The cart has two locked boxes with an opening in the top for the forms, one is labeled for Inmate Request Forms and the other is labeled for grievances. All grievances and inmate requests are routed to the Jail Administrator or the Lieutenant and, if necessary, forwarded by him or her to the proper authority.
The Inmate Handbook instructs inmates to " address grievances to the Jail Administrator or Lieutenant." (Id. at 5). Jail officials must respond to the grievance " as soon as possible" and " write their response on an inmate form, giving findings regarding approval or disapproval of a complaint, then sign and date their response, return a copy to the inmate, and place a copy in the inmate's jail file." (Id.). " If an inmate is unsatisfied with the response to a grievance, the inmate may appeal the decision to the Sheriff within five days of the decision by the jail administrator or the Lieutenant." (Id.).
Starr declares that the plaintiff's inmate file only displays two inmate request forms, neither of which are related to the allegations of his complaint. (Id. at 4-6). He also states the plaintiff's inmate file does not contain any other Inmate Request Forms or any Grievance Forms. (Id.).
The plaintiff did not respond to the defendants' motion. Nonetheless, in his 42 U.S.C. § 1983 complaint, which was signed under penalty of perjury, the plaintiff alleges he was told he was not allowed to file a ...