United States District Court, D. South Dakota, Southern Division
ORDER DENYING MOTION FOR SUMMARY JUDGMENT AND
GRANTING AND DENYING VARIOUS OTHER MOTIONS
E. SCHREIER UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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).
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)).
Motion for Summary Judgment
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
Exhaustion of Administrative Remedies
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)).
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).
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.
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.
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.
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
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 ...