United States District Court, D. Kansas
MEMORANDUM AND ORDER
Thomas Marten, Judge.
Montee Ray Iverson, an inmate in the custody of the Kansas
Department of Corrections, filed this lawsuit pro se claiming
violations of his First and Eighth Amendment rights pursuant
to 42 U.S.C. § 1983. Plaintiff alleges that defendants
retaliated against him by housing him in a More Restricted
Area (“MRA”) for discussing two guards'
misconduct with healthcare providers. Plaintiff further
alleges that he was kept in unsanitary conditions and certain
defendants battered and/or sexually assaulted him. Defendants
move for summary judgment claiming plaintiff failed to
exhaust mandatory administrative remedies (Dkts. 56 and 62).
For the reasons provided below, the court grants
relevant times, plaintiff was housed at the Hutchinson
Correctional Facility (“HCF”). Defendant Jordan
Bell was a unit team supervisor at HCF at that same time.
Defendant Dustin Davis is an HCF corrections officer.
Defendant Misty Keolavone is a licensed specialized clinical
social worker employed by Corizon, LLC as the Mental Health
Coordinator at HCF.
claims defendants retaliated against him for making
threatening statements about HCF officers to his therapist,
FNU Schroder. Plaintiff also alleges Keolavone was
responsible for placing plaintiff in an MRA cell due to his
contends that he was kept in kept in unsanitary conditions
because the MRA cells are not regularly cleaned, the toilets
do not flush manually, and the “walls are stained with
human excrement from inmates that are mentally ill.”
(Dkt. 66, at 37). Plaintiff alleges that defendants Karen
Barnt, Keolavone, and Bell were aware of the unsanitary
further complains that Bell made plaintiff's conditions
harsher by terminating his ability to purchase stamps and
envelopes through Restricted Housing Rules. Plaintiff
contends that Bell told plaintiff he needed to appear in
person at the Segregation Review Board meeting even though
Bell was aware of plaintiff's fears of mistreatment from
indicates that on July 18, 2016, he was mentally ill and
displayed suicidal tendencies. A cell extraction team was
assembled to move plaintiff. During the forced removal,
plaintiff alleges that Davis sexually assaulted him and other
HCF correctional officers battered him.
the screening of the Second Amended Complaint,
plaintiff's retaliation claim (Count I) was dismissed.
(Dkt. 32). Plaintiff's allegations of battery and sexual
assault (Count II) and being housed in unsanitary conditions
(Count III) were permitted to proceed.
Summary Judgment Standards
judgment is appropriate if the moving party demonstrates 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). A fact is “material” when it
is essential to the claim, and the issues of fact are
“genuine” if the proffered evidence permits a
reasonable jury to decide the issue in either party's
favor. Haynes v. Level 3 Communs., 456 F.3d 1215,
1219 (10th Cir. 2006). The movant bears the initial burden of
proof and must show the lack of evidence on an essential
element of the claim. Thom v. Bristol-Myers Squibb
Co., 353 F.3d 848, 851 (10th Cir. 2004) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986)). The nonmovant must then bring forth specific facts
showing a genuine issue for trial. Garrison v. Gambro,
Inc., 428 F.3d 933, 935 (10th Cir. 2005). The court
views all evidence and reasonable inferences in the light
most favorable to the nonmoving party. LifeWise Master
Funding v. Telebank, 374 F.3d 917, 927 (10th Cir. 2004).
Prison Litigation Reform Act of 1995 (“PLRA”), 42
U.S.C. § 1997e(a), provides that a prisoner may not
bring an action under any federal law regarding prison
conditions “until such administrative remedies as are
available are exhausted.” See also Simmons v.
Stus, 401 F. App'x 380, 381 (10th Cir. 2010).
“[T]he PLRA exhaustion requirement applies to all
inmate suits about prison life, whether they involve general
circumstances or particular episodes, and whether they allege
excessive force or some other wrong.” Porter v.
Nussle, 534 U.S. 516, 532 (2002). An inmate must not
only start the grievance process but also complete the
grievance process before filing his complaint. See
42 U.S.C. § 1997e(a) (stating “[n]o action shall
be brought . . . until such administrative remedies as are
available are exhausted”); see also Jernigan v.
Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002)
(“An inmate who begins the grievance process but does
not complete it is barred from pursuing a § 1983 claim
under PLRA for failure to exhaust his administrative
grievance procedure for Kansas state prisoners is detailed in
Kansas Administrative Regulation (“K.A.R.”)
§§ 44-15-101 and 102, which includes three levels:
submission of the grievance first to a unit team member, then