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Nunez v. Heimgartner

United States District Court, D. Kansas

March 22, 2018

EDDIE NUNEZ, Plaintiff,
v.
JAMES HEIMGARTNER, ET AL., Defendants.

          NUNC PRO TUNC MEMORANDUM AND ORDER

          ERIC F. MELGREN, UNITED STATES DISTRICT JUDGE

         Plaintiff Eddie Nunez, an inmate at the El Dorado Correctional Facility, claims several of his constitutional rights were violated while in the custody of the Kansas Department of Corrections (“KDOC”), and brings this action under 42 U.S.C. § 1983 against various Defendants for said violations. Defendants argue that Nunez failed to exhaust his administrative remedies under the Prison Litigation Reform Act (“PLRA”) prior to bringing this action, and thus, seek dismissal of Nunez' claims. The Court held an evidentiary hearing on March 9, 2018, relating to whether Nunez exhausted his administrative remedies as argued in Defendants' Motion for Summary Judgment (Doc. 55), and after considering Defendants' motion, as well as the evidence and argument presented at the hearing, the Court is now prepared to rule. For the reasons identified below, the Court denies Defendants' requests for summary judgment on the basis that Nunez failed to exhaust administrative remedies.[1]

         I. Factual and Procedural Background

         Nunez has been an inmate in the custody of the KDOC at all times relevant to this lawsuit. In January 2015, he battered a female corrections officer at the Hutchinson Correctional Facility. Following that incident, KDOC personnel seized him, placed him in a holding cell, and transferred him to the El Dorado Correctional Facility, where he was placed on restricted status. Nunez filed this action claiming that Defendants subjected him to excessive force and mistreated him in various ways following the battery. The Court provided a detailed summary of the allegations in Nunez' Complaint in its prior Order (Doc. 62), and incorporates that summary here.

         Defendants James Heimgartner, Tammy Martin-Mosley, Roland Potter, Kevin Vick, William Widener, and Allison Plett (the “KDOC Defendants”) filed a Motion for Summary Judgment (Doc. 55), on January 9, 2017. The KDOC Defendants presented numerous arguments in favor of dismissal, including that Nunez failed to exhaust administrative remedies. Defendant Morris filed a Motion for Summary Judgment (Doc. 59) on April 25, 2017, but did not set forth any arguments regarding exhaustion of administrative remedies. On May 24, 2017, the Court denied Morris' motion and granted in part and denied in part the KDOC Defendants' motion.

         The Court determined that factual questions existed regarding whether Nunez properly exhausted his administrative remedies as to his § 1983 claims, appointed Nunez counsel, and ordered an evidentiary hearing to resolve the factual questions.[2] In its decision, the Court simultaneously ordered an evidentiary hearing regarding exhaustion under the PLRA and denied the KDOC Defendants' motion for summary judgment on the same issue. The Court acknowledges this inconsistency and issues this Order nunc pro tunc, to the extent the prior Order mistakenly disposed of the entire motion for summary judgment rather than taking the exhaustion issue under advisement pending the outcome of the evidentiary hearing.

         The evidentiary hearing regarding exhaustion of administrative remedies took place on March 9, 2018. The Court received testimony from two witnesses during the hearing-Nunez and his unit team manager, Tammy Martin-Mosley-and heard arguments from the parties. Morris orally moved to join in the KDOC Defendants' motion for summary judgment and Nunez did not object. The Court summarizes the evidence introduced below. Testimony of Tammy Martin-Mosley (“Martin”)

         Martin testified that she served as Nunez' unit team manager at all times relevant to this action. She testified as to the grievance procedure, noting that prior to utilizing the grievance process inmates must attempt to work out their issues on an informal basis with the security staff, unit team staff, mental health staff, medical, or whoever the inmate has an issue with. She explained that inmates typically do this by filing a Form 9, but also noted that inmates commonly utilize a sick call slip to document informal attempts to resolve disputes with private health care employees. Martin testified that the Form 9 is a form provided to inmates that allows them to submit requests to staff members. The Form 9 includes a tear-off portion that serves as a receipt for inmates and includes sections for the name and title of the person given the form, the date, and a unit team member's signature.

         If informal means do not successfully resolve the inmate's dispute, then the inmate may engage in a three-level grievance process that includes the following steps: (1) the inmate files a grievance with the unit team, (2) if unresolved at the unit team level, the inmate submits the grievance to the warden, and (3) if still unresolved, the inmate appeals to the Secretary of Corrections (“SOC”).[3] At the first level, the unit team manager provides a written response on the grievance form. This form, containing the unit team manager's response, may be submitted to the warden if the dispute remains unresolved. Upon submission to the warden, a member of the warden's office typically assigns the grievance a serial number. Circumstances exist, however, where a grievance may not be assigned a number, such as when it does not comply with the applicable K.A.R. requirements. Grievance forms, like the Form 9, also include a tear-off portion that serves as a receipt to inmates. It states, “[t]ear off and give to inmate when submitted to Unit Team through receiving staff, ” and contains blanks for the inmate's name, inmate's number, receiving staff signature, and date.

         Once detached from the form, whether from a grievance form or Form 9, a tear-off receipt cannot be traced to the specific form to which the receipt was originally affixed. Thus, if an inmate submits multiple Form 9s or grievance forms in one day, there is no way to tell which receipt corresponds with which form. Although technically inmates may only receive up to five Form 9s and three grievance forms on any given day, blank forms are widely available to inmates, and the correctional facility does not record or track how many forms an inmate requests or receives. Accordingly, an inmate could take a blank form, fill out and tear off the receipt, and destroy the original form. As noted above, however, the tear-off receipt includes space for the signature of a prison official.

         Martin testified that she did not timely receive the grievance form allegedly filed by Nunez on February 4, 2015. Rather, she first received the grievance after the SOC forwarded it to the warden because it did not appear that Nunez had followed the grievance policy when submitting his appeal to the SOC, and the warden sent it to Martin for response. Martin did not recall when exactly she received the grievance from the SOC, but testified that she responded to the grievance after the SOC rerouted it to the warden. She testified that she received the grievance form along with a letter from Douglas Burris with the SOC's office dated March 13, 2015, sometime in April 2015. The letter includes a date-received stamp indicating that the “Wardens Office” received the letter on April 6, 2015. Martin's response to the grievance is dated April 3, 2015-before the warden's office date stamp. Nunez did not seek further review of Martin's response or otherwise attempt to appeal it. Testimony of Nunez Nunez testified that he complied with each step in the grievance process. He stated that he submitted a Form 9 as part of the informal process on January 23, 2015, seeking access to his legal materials. Form 9 is titled “Inmate Request to Staff Member, ” and directs inmates to, “[s]tate completely but briefly the problem on which you desire assistance. (Be specific.).” Nunez testified that he sought access to his legal work in order to prepare his grievance report form, and that without his legal work he did not have access to proper documentation as to his restrictions and privileges, policies, and general orders to enable him to articulate his complaint. Nunez received an undated response from an unidentified individual. The Court did not receive testimony regarding who provided the response; nor did either party submit evidence regarding the conversation, if any, had between Nunez and the person responding to the Form 9 request.

         After informally seeking resolution, Nunez filed a grievance form on February 4, 2015, to which he did not receive a timely response. On February 19, 2015, Nunez sent a letter to the warden attaching a copy of the grievance and Form 9 and stating that he “tried having an informal resolution but request forms go totally un-answered with no receipts and [unit team] manager Martin out-right refuses to speak to me.” After not receiving a response from the warden, Nunez sent an appeal to the SOC on March 10, 2015, attaching the Form 9, grievance form, tear-off receipts, and letter to the warden, and explaining why he was appealing an unanswered grievance with no serial number. Nunez produced two receipts, allegedly signed by the cell house sergeant in charge of the segregation unit, dated February 4, 2015, and February 20, 2015. These receipts purportedly correspond to the grievance form submitted to the unit team and to the letter sent to the warden. Nunez testified that the unit team counselor provided Nunez with copies of his prior filings to enable Nunez to attach these filings to his second and third level appeals.

         At some point after March 13, 2015, Nunez received a letter from Douglas Burris on behalf of the SOC. The letter states that it is a response to Nunez' unnumbered grievance report, and informs Nunez that he failed to provide evidence that he sought “information, advice, or assistance from the unit team before filing a formal grievance, ” or that he “file[d] a formal grievance with the principal administrator of the facility before appealing to the Secretary.” It also stated that the grievance was being forwarded to the warden and carbon copied the warden.

         Nunez testified that he did not receive a response after initially submitting his first and second level grievances, and that he only received a response after appealing to the SOC. He testified that it is fairly routine to have grievances go unanswered. On April 3, 2015, Martin provided him with a response to his February 4, 2015, grievance. Nunez testified that he considered his grievance exhausted as of the time he received the April 3, 2015, response, and accordingly, did not appeal the response. Instead, he filed this lawsuit.

         II. Legal Standard

         Summary judgment is appropriate if the moving party demonstrates that there is no genuine issue as to any material fact, and the movant is entitled to judgment as a matter of law.[4] A fact is “material” when it is essential to the claim, and issues of fact are “genuine” if the proffered evidence permits a reasonable jury to decide the issue in either party's favor.[5] When the party moving for summary judgment bears the burden of proof, as opposed to the nonmoving party, “a more stringent summary judgment standard applies.”[6] Thus, in order to obtain summary judgment on a moving party's affirmative defense, the moving party “must establish, as a matter of law, all essential elements of the issue before the nonmoving party can be obligated to bring forward any specific facts alleged to rebut the movant's case.”[7] Only if the moving party meets this burden must the nonmoving party come forward and “demonstrate with specificity the existence of a disputed material fact.”[8] The Court views all evidence and reasonable inferences in the light most favorable to the party opposing summary judgment.[9]

         III. Analysis

         The PLRA provides that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner . . . until such administrative remedies as are available are exhausted.”[10] Although exhaustion of administrative remedies is mandatory under the PLRA, the failure to exhaust administrative remedies is an affirmative defense.[11] Thus, Defendants bear the burden of asserting and proving that Nunez did not exhaust his administrative remedies.[12] If they meet his burden, however, Nunez may continue this action if he shows that administrative remedies were unavailable to him.[13]

         “To exhaust administrative remedies an inmate must properly comply with grievance procedures; substantial compliance is insufficient.”[14] “The ‘applicable procedural rules' that a prisoner must properly exhaust are defined not by the PLRA, but by the prison grievance process itself.”[15] Article 15 of the KDOC regulations (the “KDOC regulations”) details the grievance process applicable here.[16]

         Under the KDOC regulations, an inmate must first seek an “informal resolution of the matter with the personnel who work with the inmate on a direct or daily basis.”[17] If informal means fail, the inmate may resort to the three-level formal grievance procedure.[18] At level one, the inmate must submit a “grievance report form to an appropriate unit team member of the facility.”[19] At level two, the inmate submits “the grievance report form to the warden of the facility.”[20] And, if the matter remains unresolved, the inmate may proceed to the third level and submit an appeal to the SOC.[21]

         The KDOC regulations include specific deadlines applicable to the grievance procedure. A level-one grievance “shall be filed within 15 days from the date of the discovery of the event giving rise to the grievance, excluding Saturdays, Sundays and holidays.”[22] If the unit team does not respond within 10 calendar days, the inmate may proceed to the second level-submission of the grievance to the warden.[23] At the second level, “[e]ach inmate grievance shall be returned to the inmate, with an answer, within 10 working days from the date of receipt, ” and if the warden fails to provide a timely response, the inmate may appeal to the SOC.[24] An appeal to the SOC must be made within the earlier of (a) three calendar days of receipt of the warden's decision or (b) three calendar days of the deadline for the warden's decision.[25]

         The KDOT Defendants advance three arguments in favor of dismissal for failure to exhaust administrative remedies: (1) Nunez never submitted a first or second level grievance, (2) Nunez failed to appeal Martin's April 3, 2015, response to his level-one grievance, and (3) Nunez' Form 9 does not address the claims asserted in this lawsuit, and thus, Nunez failed to satisfy the requirement to seek informal resolution of his claims prior to engaging in the three-level grievance process. Morris joined in these arguments and further argued that Nunez failed to submit a sick call request form as is typically used to informally resolve disputes with private medical contractors, and thus, failed to exhaust administrative remedies as to his claims against Morris.[26]

         Nunez argues that he complied with all steps required under Kansas law to exhaust administrative remedies, that the law did not require him to continue at the administrative level after receiving his unit team leader's response over two months after filing his first level grievance, and that Defendants did not preserve their final argument-that the Form 9 did not encompass the claims in this lawsuit-or alternatively, that Defendants deprived him of the ability to include the allegations of this lawsuit in his Form 9 by denying him access to legal materials.

         A. Defendants have failed to establish that Nunez did not submit his grievance at either the first or second level.

         Defendants argue that Nunez did not file a first or second level grievance prior to appealing his grievance to the SOC. They submit affidavits from KDOC administrative assistants claiming that Nunez' appeal records do not include the grievance Nunez claims he filed, and Martin testified that she did not receive a grievance from Nunez until April 2015, when the SOC forwarded Nunez' grievance to the warden. Nunez, on the other hand, testified that he complied with each requirement of the grievance process, including timely submitting the first and second level grievances, and that he ...


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