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Adkins v. Lewis

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

September 17, 2019

CARL LEE ADKINS, JR. PLAINTIFF
v.
LESTER LEWIS et al . DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          JOSEPH H. MCKINLEY JR., SENIOR JUDGE, UNITED STATES DISTRICT COURT

         This matter is before the Court on the motion for summary judgment filed by Defendants DeEdra Hart and Tina Moore (DN 18). Proceeding pro se, Plaintiff filed a response to the motion (DN 21). Defendants Hart and Moore filed a reply, in which they also move for summary judgment on behalf of Defendant Felicia Howard (DN 41), and Plaintiff filed a sur-reply (DN 44). For the reasons that follow, the motion for summary judgment will be denied.

         I. SUMMARY OF RELEVANT FACTS

         This action arises out of Plaintiff's incarceration at the Green River Correctional Complex (GRCC). Upon initial review of the complaint pursuant to 28 U.S.C. § 1915A, the Court allowed Plaintiff's individual-capacity claims alleging deliberate indifference to safety to proceed against Defendants GRCC Warden Hart; Case and Training Officer Moore; and Unit Administrator Howard based on the facts alleged that follow.[1]

         In the verified complaint, Plaintiff maintained that he previously had foot surgery which resulted in him “having a metal plate . . . screwed into the heel bone of [his] right foot.” Plaintiff stated that he was transferred to GRCC on September 20, 2017. He alleged that on November 29, 2017, Defendant Howard told him to move to a dorm on an upper floor. Plaintiff stated that he explained to Defendant Howard that using stairs caused him pain in his foot and further informed Defendant Howard that GRCC “medical staff prescribed Plaintiff a cane and restricted Plaintiff to bottom bunk.” Plaintiff stated that he “implored . . . Defendant Howard to not move Plaintiff to upper floor[]” but that she “refused to acknowledge Plaintiff's injury” and told him to move to the upper floor anyway.

         Plaintiff maintained that on December 6, 2017, he wrote a letter to Defendant Hart stating that he had been erroneously moved to the upper floor and that the constant use of stairs caused him pain in his foot. Plaintiff stated that he requested that Defendant Hart move him to a lower floor but that she “refused to acknowledge the severity of Plaintiff predicament and ignored Plaintiff's request.”

         Plaintiff further asserted that on December 25, 2017, he informed Defendant Moore of his medical condition and requested that he be housed on a bottom floor. Plaintiff stated that Defendant Moore told him to “wait until after the holidays to be moved.”

         Plaintiff alleged that on December 31, 2017, he fell down the stairs and “was rushed to the facility's medical unit” where he was “treated for head, foot, and leg injuries.” He stated that his right foot is “permanently bruised, swollen, and stiff” and that “the pain becomes so unbearable that he usually cannot walk.” Plaintiff stated that “when he has severe pain, he becomes unable to flex his foot and when the pain lessens it can take up to an hour before he can walk again.” Plaintiff maintained that, after his fall, he was moved to the bottom floor.

         In their motion, Defendants Hart and Moore argue that they are entitled to summary judgment on grounds that Plaintiff failed to exhaust his administrative remedies as required under the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e, with respect to his claims against them. They point to the Kentucky Department of Corrections (KDOC) inmate grievance procedure under Corrections Policy and Procedure (CPP) 14.6, attached to the motion. They maintain that Plaintiff stated in the complaint that he filed a grievance but failed to attach any documentation indicating that he fully exhausted his administrative remedies against Defendants. They state that Plaintiff filed a grievance on December 4, 2017, Grievance #17-12-03, regarding his housing assignment, in which he requested to be moved to a lower level where he did not have to navigate stairs. Defendants state, “However, in his grievance, Plaintiff only identified Defendant Howard and made no mention of Defendant Hart or Defendant Moore. Plaintiff did not file any additional grievances naming Defendant Hart or Defendant Moore in reference to his housing assignment on an upper level dorm while at GRCC.” They continue, “Ultimately, Plaintiff failed to file any grievance identifying Defendant Hart or Defendant Moore regarding any action or inaction taken by either of these Defendants involving his placement on an upper level at GRCC.” In support of this assertion, Defendants rely on an affidavit by GRCC Grievance Coordinator Brandon Stewart. They also attach Plaintiff's December 4, 2017, grievance; the grievance committee findings and recommendations and Warden's review; the grievance appeal filed by Plaintiff; and the Commissioner's review.

         In response to the motion, Plaintiff states that he filed a grievance concerning Defendant Hart, which was rejected because “he could not file more than one grievance involving one issue.” Plaintiff attached a declaration signed under penalty of perjury to his response. In the declaration, Plaintiff maintains that he wrote a letter to Defendant Hart explaining that he had been moved to a walk where he had to use stairs constantly and that he had an injury that caused him pain when using stairs. He states, “Because that letter to Defendant Hart was ignored, I filed an inmate grievance pursuant to Kentucky [CPP] 14.6 . . . on December 11, 2017.” He further states that on December 13, 2017, he “received a ‘grievance rejection' notice; such grievance was rejected due to there being ‘already a grievance on this matter.' . . . It was also documented in such grievance rejection notice that I could ‘not rewrite' the grievance.”

         In his response, Plaintiff also maintains that he did not attempt to re-write the grievance because he had already filed a grievance concerning the matter. In the declaration, he states, “Because I was informed by grievance coordinator, Jim Yates, that I could ‘not rewrite' a grievance because there was ‘already a grievance on this matter' . . ., I complied with the instructions in CPP 14.6 and sought administrative remedial attention via the already pending grievance against Defendant Howard's[] appeals stages.”

         Further, in his response to the motion, Plaintiff argues that the exhaustion requirement “hinges on the []availability[] of administrative remedies[.]” Plaintiff states that in the first stage of the appeal he “specifically addressed the issue where he ‘wrote a letter to Warden Hart[] explaining to her I was moved to a walk where I had to constantly use stairs.'” He states that at that stage of the appeal he also stated that Defendant Hart had ignored his letter. Plaintiff also states, “In regards to the second stage of appeal, the Plaintiff exhausted administratively, seeking remedy for Defendant Moore's deliberate indifference towards the Plaintiff's safety. Such appeal was the last stage of the grievance process . . . .” Plaintiff further argues, “Defendants, Hart and Moore, failed to produce full copy of Plaintiff's grievance and/or specify details in grieva[n]ce's appeals. The grievance included all the issues about which Plaintiff is suing. Defendants Hart and Moore have not provided proof that the Plaintiff failed to raise issues concerning their acts and omissions alleged in this suit . . . .”

         Defendants filed a reply in which they argue that Plaintiff failed to exhaust his administrative remedies against Defendants Hart and Moore because he did not identify them in his grievance. Defendants argue, “the appeal processes in CPP 14.6 are not provided so that an inmate may identify additional staff members and allegations not stated in step one.”

         Defendants further argue in their reply for the first time that the grievance Plaintiff filed “complained that because he was not housed on a bottom floor he had to navigate stairs.” They maintain “Conspicuously missing from his Grievance is the crux of his Eighth Amendment claim as set out in his complaint-that he was injured when he fell down the stairs.” Defendants point out that this is because the fall had not occurred yet on the date Plaintiff filed his grievance, November 29, 2017, and that the fall occurred on December 21, 2017. Defendants maintain, “Thus, Adkins failed to ‘include all aspects of the issue' in his Grievance at step one of the grievance process that now forms the basis of his Eighth Amendment claim for damages against Hart, Moore, and Howard-his alleged fall down the stairs.” They state that he never grieved the fall down the stairs and that “[a]dding the allegation that he fell down the stairs in his appeal to the Commissioner dated January 8, 2018 . . . does not satisfy the mandate to ‘include all ...


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