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Balcar v. Smith

United States District Court, W.D. Kentucky, Louisville

March 22, 2018




         This matter is before the Court upon a motion for summary judgment by Defendants for Plaintiffs' failure to exhaust available administrative remedies (DN 23) and duplicate cross-motions for summary judgment by Plaintiffs (DNs 31 & 34). For the following reasons, the Court will grant in part and deny in part Defendants' motion for summary judgment, deny Plaintiffs' first cross-motion for summary judgment, and strike Plaintiffs' duplicate second motion for summary judgment from the record.


         Pro se Plaintiffs Yale L. Balcar and Clarence Russell initiated this 42 U.S.C. § 1983 prisoner civil rights action on February 16, 2017.[1] Plaintiffs are inmates at Kentucky State Reformatory (KSR). In their complaint, Plaintiffs sue KSR Warden Aaron Smith, KSR Captain Michael Williams, and Kentucky Department of Corrections (KDOC) Commissioner Rodney Ballard, in their official and individual capacities.

         Plaintiffs allege that on February 8, 2017, while Plaintiff Russell was pushing Plaintiff Balcar in his wheelchair, the two were attacked by three other inmates. Plaintiffs claim that these inmates pushed Plaintiff Russell “around” so that they could get to Plaintiff Balcar, and then stabbed Plaintiff Balcar in the eye and face. Plaintiffs further allege that Plaintiff Balcar was “taken to medical” for treatment of his stab wound and sent to an eye doctor “for the damage to the eye.” Plaintiffs seem to allege that Defendants Smith and Williams witnessed this assault on camera but did nothing to stop it. Plaintiffs then claim that these Defendants violated their constitutional rights by failing to protect them from other inmates. Plaintiffs further claim that Defendant Smith was negligent by failing “to keep prisoners safe and protect them from harm” and that Defendant Ballard was negligent “for letting Warden Smith for his breach of duty to keep prisoners safe and protect from assault and not having enough guards to protect the unreasonable harm.” The Court conducted its initial review of Plaintiffs' complaint pursuant 28 U.S.C. § 1915A on May 5, 2017 (DN 10). In that Memorandum Opinion and Order, the Court dismissed the official-capacity claims against all Defendants, but allowed Plaintiffs to proceed with their Eighth Amendment failure-to-protect claims against Defendants Smith and Williams in their individual capacities, as well as their state-law negligence claims against Defendants Smith and Ballard.

         On May 17, 2017, Plaintiffs filed a motion for leave to file a supplemental complaint (DN 15), which the Court granted (DN 18). In the supplemental complaint, Plaintiffs made the same legal claims against the same Defendants based upon allegations of a subsequent attack by another inmate.

         On June 9, 2017, Defendants filed a motion to dismiss this action for failure to exhaust administrative remedies (DN 16). The Court entered a Memorandum and Order denying this motion for several reasons (DN 21). However, the Court provided Defendants 30 days to file a properly supported dispositive motion regarding the exhaustion issue.

         On September 8, 2017, Defendants filed a renewed motion to dismiss based upon Plaintiffs' failure to exhaust available administrative remedies (DN 23). On October 30, 2017, the Court entered a Memorandum Opinion and Order stating that it was construing Defendants' renewed motion to dismiss as one for summary judgment and providing Plaintiffs 30 days to file a response to Defendants' motion (DN 28). Following entry of that Memorandum and Order, Plaintiffs filed duplicate cross-motions for summary judgment (DNs 31 & 34).[2] No. subsequent responses or replies were filed by either party.


         Before the Court may grant a motion for summary judgment, it must find that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party bears the initial burden of specifying the basis for its motion and identifying that portion of the record that demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the moving party satisfies this burden, the non-moving party thereafter must produce specific facts demonstrating a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

         The evidence of the non-moving party is to be believed, Anderson, 477 U.S. at 255, and all reasonable inferences that may be drawn from the facts placed before the Court must be drawn in favor of the opposing party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Nevertheless, the non-moving party must do more than merely show that there is some “metaphysical doubt as to the material facts.” Id. at 586. Instead, the Federal Rules of Civil Procedure require the non-moving party to present specific facts showing that a genuine factual issue exists by “citing to particular parts of materials in the record” or by “showing that the materials cited do not establish the absence . . . of a genuine dispute[.]” Fed.R.Civ.P. 56(c)(1). “The mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party].” Anderson, 477 U.S. at 252. It is against this standard that the Court reviews the facts presented.


         Defendants attach KDOC's Inmate Grievance Procedure, Corrections Policies and Procedures (CPP) 14.6, to their motion. This procedure sets forth the four steps of KDOC's inmate grievance process: Step 1 - Filing the Grievance and Informal Resolution, Step 2 - Grievance Committee Hearing, Step 3 - Appeal to the Warden, Step 4 - Appeal to the Commissioner (DN 23-1, KDOC Inmate Grievance Procedure, CPP 14.6, pp. 7-13). The procedure also clarifies the types of issues that are considered grievable versus non-grievable. Id. at p. 2. The procedure specifically states that “a grievable issue” may include “personal action by staff.” Id. Defendants also attach the affidavit of John M. Dunn, KDOC's grievance custodian, who avers that KDOC's records contain only one grievance filed by Plaintiff Balcar and that this grievance concerns a missing television. Dunn further avers that KDOC's records contain no grievances filed by Plaintiff Russell.

         Plaintiffs attach no exhibits to either their complaint or cross-motion for summary judgment, but they signed their cross-motion under penalty of perjury.[3] In their cross-motion, which predominantly addresses the merits of Plaintiffs' underlying claims in this action, they nonetheless state the following in regard to Defendants' arguments that they failed to exhaust their administrative remedies. First, they state that they “filed a complaint in Oldham County Attorney and the Oldham County Attorney and they was denied because of [Defendant] Williams' refuse to call Kentucky State Police to report the assault and stabbing on [Plaintiff] Balcar.” ...

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