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Ainsworth v. Droz

United States District Court, D. South Dakota, Southern Division

April 11, 2017

JAY ALAN AINSWORTH, Plaintiff,
v.
B. DROZ, and A. WILLIAMS, Defendants.

          ORDER DENYING MOTION FOR SUMMARY JUDGMENT AND GRANTING AND DENYING VARIOUS OTHER MOTIONS

          KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE

         Plaintiff, Jay Alan Ainsworth, is an inmate at the South Dakota State Penitentiary in Sioux Falls. He filed a pro se lawsuit under 42 U.S.C. § 1983. Docket 1. Ainsworth has filed multiple motions including motion to withdraw, to add discovery, for medical records, to compel discovery, for reconsideration, for default judgment, and for a jury trial. Dockets 31, 33, 36, 46, 48, 50, 57, 58, 60, 62, 66). Defendants move for summary judgment. Docket 38. For the reasons stated below, Ainsworth's motions are granted and denied, and defendants' motion for summary judgment is denied.

         FACTUAL BACKGROUND

         On October 11, 2015, Ainsworth did not receive his lunch. Docket 41 ¶ 3. Ainsworth became upset and began kicking the door of his cell. Id. A call was made to Correctional Officer Bryan Droz, who came to Ainsworth's cell, gave him a sack lunch, and told him to stop kicking his cell door. Id. ¶ 4. Most of the contents of the sack lunch were missing. Docket 31 at 1. Ainsworth continued to kick the door. Docket 41 ¶ 4. The milk from his lunch spilled on the floor, whether it was intentional or not is disputed by the parties. Docket 64 at 6. Droz then sprayed Cap Stun gas into Ainsworth's cell. Docket 41 ¶ 5.

         At this point, Correctional Officer Brian Gengler came to help Droz cuff Ainsworth. Id. ¶ 6. Ainsworth put his hands out of the cell to be cuffed. Id. ¶ 7. Defendants aver that after one of Ainsworth's hands was cuffed, he pulled his hands back into his cell, giving him control of the cuffs, a dangerous situation for the officers. Id. ¶¶ 7-8. Ainsworth avers that after his left hand was cuffed, one of the officers bent his right thumb back, attempting to break it, and that was why Ainsworth pulled his hands back into the cell. Docket 56 ¶ 9. Droz ordered Ainsworth to come to the front of his cell and threatened to spray him again. Docket 41 ¶ 8. Ainsworth complied and was cuffed. Id. ¶ 9. At around this time, Correctional Officer Andrew Williams arrived. Id. ¶ 8.

         After the cell door was opened, defendants aver that Ainsworth began to resist again. Id. ¶ 9. Ainsworth avers that he did not resist at any time. Docket 56 ¶ 2. Williams tackled Ainsworth to the ground. Docket 41 ¶ 9. Defendants aver that Williams slipped in the spilled milk, fell to the ground, and in the scuffle, was trapped under Ainsworth. Id. ¶ 10. Gengler jumped on Ainsworth's legs and punched his upper thigh multiple times. Docket 43 ¶ 9. Ainsworth avers that defendants punched him in the head with closed fists. Docket 56 ¶ 1. After Gengler and Droz got Williams out from under Ainsworth, he stopped resisting. Docket 41 ¶ 12.

         Ainsworth was put in leg irons and taken to a holding cell. Docket 41 ¶ 13. While taking him away, Droz and Williams aver that they did not notice any obvious physical injury suffered by Ainsworth or blood on him. Docket 41 ¶ 16; Docket 42 ¶ 14. Gengler avers that at the same time he noticed a lump on Ainsworth's head. Docket 43 ¶ 13. Ainsworth avers that he had a two-inch knot on his forehead and another knot on the back of his head that later split open due to swelling. Docket 56 ¶ 6.

         Ainsworth avers that he filed an Informal Resolution Request (IRR) on October 14, 2015, and gave it to Sargent Day, a prison official in the Segregated Housing Unit (SHU). Docket 56 ¶ 5. Day told Ainsworth he would turn the IRR into the unit coordinator. At that point, Ainsworth was incarcerated in the SHU, and he could not walk to the unit coordinator and turn it in himself. Docket 54 at 3. A couple days later, Ainsworth asked Day where his copy of the IRR was, and Day told Ainsworth he would get back to him. Id. Ainsworth tried to get another IRR form but was denied. Id. Ainsworth claims that no one responded to his IRR. Docket 72 at 4.

         When Ainsworth got out of the SHU, he filed another IRR. Docket 54 at 3; Docket 45-3. In this IRR, he claims that he filed a complaint a month earlier while in the SHU, but he never received a response. Docket 45-3. On November 24, 2015, the prison rejected his grievance. Docket 45-4. The merits were not considered because Ainsworth had thirty days to file an IRR, and his filing was found to be untimely. Id. Ainsworth did not file a Request for Administrative Remedy (RAR) within ten days, which is the next stage under South Dakota Department of Corrections policy. Docket 45 ¶ 11.

         On March 4, 2016, Ainsworth filed another IRR. Docket 45-5. In it, he again claimed that he filled out a grievance while he was incarcerated in the SHU, but he received no response. Id. His IRR was denied because he had already filed a grievance on this issue in November. Docket 45-6. On March 8, 2016, Ainsworth filed an RAR, again stating that he had filed an IRR while in the SHU but did not receive a response. Docket 45-7. This RAR was denied because Ainsworth “submitted multiple forms referencing a single issue or this issue has been previously addressed.” Docket 45-8.

         PROCEDURAL BACKGROUND

         On March 30, 2016, Ainsworth filed a complaint in federal court alleging that defendants had used excessive force against him. Docket 1. The court screened Ainsworth's complaint under 28 U.S.C. § 1915A and granted him leave to amend his complaint. Docket 8. Ainsworth filed an amended complaint. Docket 9. The court screened his amended complaint and directed it be served on defendants. Docket 10.

         After defendants answered Ainsworth's amended complaint, Docket 21, the court issued a scheduling order. Docket 22. On August 26, 2016, defendants moved to stay discovery. Docket 27. Defendants argued that they were entitled to qualified immunity and that they should not be subject to discovery until this issue was determined. Id. The same day, the court granted defendants' motion. Docket 29.

         On October 3, 2016, defendants moved for summary judgment. Docket 38. They argue that Ainsworth failed to exhaust his administrative remedies, and his claim should be dismissed under the Prison Litigation Reform Act (PLRA). Docket 39. They also argue that they are entitled to summary judgment based on qualified immunity because the force they used was reasonable. Id. Before and after defendants filed their motion for summary judgment, Ainsworth filed a number of motions raising a variety of issues.

         LEGAL STANDARD

         Summary judgment is appropriate if the movant “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party can meet this burden by presenting evidence that there is no dispute of material fact or by showing that the nonmoving party has not presented evidence to support an element of its case on which it bears the ultimate burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

         “A party opposing a properly supported motion for summary judgment may not rest on mere allegations or denials, but must set forth specific facts in the record showing that there is a genuine issue for trial.” Denn v. CSL Plasma, Inc., 816 F.3d 1027, 1032 (8th Cir. 2016) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986)). For purposes of summary judgment, the facts, and inferences drawn from those facts, are “viewed in the light most favorable to the party opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).

         DISCUSSION

         I. Motion for Summary Judgment

         Defendants argue that they are entitled to summary judgment on Ainsworth's excessive force claim. They argue that Ainsworth's claim should be dismissed because he failed to exhaust his administrative remedies. They also argue they are entitled to summary judgment based on qualified immunity because they applied force in a good faith effort to restore discipline.

         A. Exhaustion of Administrative Remedies

         Defendants argue that Ainsworth failed to exhaust his administrative remedies before filing his complaint. “An inmate must exhaust all available administrative remedies before bringing a § 1983 suit.” Porter v. Sturm, 781 F.3d 448, 450 (8th Cir. 2015) (citing 42 U.S.C. § 1997e(a); Jones v. Bock, 549 U.S. 199, 211 (2007); Burns v. Eaton, 752 F.3d 1136, 1141 (8th Cir. 2014)). “Available remedies are ‘capable of use for the accomplishment of a purpose: immediately utilizable [and] accessible.' ” Id. (quoting Miller v. Norris, 247 F.3d 736, 740 (8th Cir. 2001)).

         An inmate must pursue the “ ‘grievance process to its final stage' to ‘an adverse decision on the merits.' ” Id. (quoting Burns, 752 F.3d at 1141). The inmates' subjective belief that there is no point in pursuing the process is immaterial. Id. (quoting Lyon v. Vande Krol, 305 F.3d 806, 809 (8th Cir. 2002)). But “[i]nmates are excused from exhausting remedies ‘when officials have prevented prisoners from utilizing the procedures, or when officials themselves have failed to comply with the grievance procedures.' ” Id. at 452 (quoting Gibson v. Weber, 431 F.3d 339, 341 (8th Cir. 2005)). “ ‘[A] remedy that prison officials prevent a prisoner from utiliz[ing] is not an available remedy under § 1997e(a) . . . .' ” Id. (quoting Miller, 247 F.3d at 740). Finally, “[n]onexhaustion is an affirmative defense, and defendants have the burden of raising and proving the absence of exhaustion.” Id. at 450 (citing Jones, 549 U.S. at 211-12).

         The Eighth Circuit has stated that “[p]rison officials' failure to timely respond to a grievance could be a basis for a prisoner to show that he exhausted ‘available' administrative remedies.” Sergent v. Norris, 330 F.3d 1084, 1085 (8th Cir. 2003). In Foulk v. Charrier, 262 F.3d 687 (8th Cir. 2001), the Eighth Circuit denied defendants' argument that the district court erred by failing to dismiss Foulk's excessive force claim on the ground that he failed to exhaust his administrative remedies. Foulk claimed that he timely filed an IRR, but that prison officials failed to respond within the required time. Id. at 694-95. He argued that he did all he could to obtain administrative relief and thereby exhausted his administrative remedies. Id. at 695. It was established at trial that Foulk failed to file a grievance or grievance appeal. Id. at 698. It was also established that the prison's failure to respond to the IRR precluded Foulk from filing a grievance. Id. Therefore, “the district court lacked a sufficient factual basis on which to find that Foulk did, in fact, fail to exhaust his administrative remedies[, ]” and the Eighth Circuit held that “the district court did not err in declining to dismiss Foulk's excessive force claim for failure to exhaust administrative remedies, as required under the PLRA.” Id.

         Ainsworth makes the same arguments as Foulk. He provides evidence that he attempted to file an IRR while he was in the SHU immediately after he was attacked. He provided an affidavit stating that he filled out an IRR on October 14, 2015, and gave it to Day because he could not take it to his unit coordinator himself. Docket 56 ¶ 5. Defendants' evidence also supports this claim. In every grievance Ainsworth filed, he states that he filed an IRR while he was in the SHU but received no response. Docket 45-3; Docket 45-5; Docket 45-7.

         “Inmates are excused from exhausting remedies ‘when officials have prevented prisoners from utilizing the procedures, or when officials themselves have failed to comply with the grievance procedures.' ” Porter, 781 F.3d at 452 (quoting Gibson, 431 F.3d at 341). Here, prison officials did both. First, at the only point Ainsworth was allowed to file an IRR (within thirty days), prison officials denied him the ability to do so. He personally could not submit the IRR himself, and when he gave the IRR to a prison official, it was not submitted. Second, there was no response to this IRR, a violation of the prison's own policies. Under prison policy, officials must respond to the IRR within ten days and provide the inmate with copies of the IRR. Docket 42-5 at 5. This did not happen with Ainsworth's first IRR.

         Defendants argue that even if Ainsworth attempted to file an IRR in the SHU, once he got out, he did not appeal the IRR that he filed on November 23, 2015. But that IRR was denied for failing to file within thirty days of the attack and was not considered on the merits. Further, it is the burden of the defendant to show that a prisoner plaintiff failed to exhaust all available administrative remedies under the PLRA. Lyon, 305 F.3d at 809. Defendants did not respond to Ainsworth's evidence that he was prevented from filing an IRR in time for it to be considered on the merits or that the IRR was never responded to, which is required under prison policy.

         Evidence similar to that provided by Ainsworth has been used by other courts to deny dismissal for failure to exhaust. In Nixon v. Sanders, 243 F. App'x 197 (8th Cir. 2007), the Eighth Circuit concluded that Nixon, the prisoner plaintiff, had raised a factual dispute as to whether he was denied grievance forms, and the court reversed the district court's dismissal of Nixon's claims based on the ground that he had not fully exhausted his administrative remedies. Defendants supported their argument for dismissal or summary judgment with prison records and an attorney's declaration. Id. at 198. Nixon lacked “proof to the contrary[.]” Id. Still, in “various submissions, ” Nixon complained that prison officials ignored his grievances and refused to provide him with forms to proceed through the grievance system. Id. at 199. In Nixon, the Eighth Circuit found that a factual dispute existed after the parties presented similar evidence to the evidence presented here. See also Conner v. Doe, 285 F. App'x 304 (8th Cir. 2008) (finding that a jail's ...


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