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MICHALEK v. LUNSFORD, 4:11CV00685-JMM-JTR. (2012)

Court: District Court, E.D. Arkansas Number: infdco20120425c07 Visitors: 13
Filed: Apr. 05, 2012
Latest Update: Apr. 05, 2012
Summary: PROPOSED FINDINGS AND RECOMMENDATIONS INSTRUCTIONS J. THOMAS RAY, Magistrate Judge. The following recommendation has been sent to United States District Judge James M. Moody. Any party may serve and file written objections to this recommendation. Objections should be specific and should include the factual or legal basis for the objection. If the objection is to a factual finding, specifically identify that finding and the evidence that supports your objection. An original and one copy of you
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PROPOSED FINDINGS AND RECOMMENDATIONS INSTRUCTIONS

J. THOMAS RAY, Magistrate Judge.

The following recommendation has been sent to United States District Judge James M. Moody. Any party may serve and file written objections to this recommendation. Objections should be specific and should include the factual or legal basis for the objection. If the objection is to a factual finding, specifically identify that finding and the evidence that supports your objection. An original and one copy of your objections must be received in the office of the United States District Clerk no later than fourteen (14) days from the date of the findings and recommendations. The copy will be furnished to the opposing party. Failure to file timely objections may result in waiver of the right to appeal questions of fact.

If you are objecting to the recommendation and also desire to submit new, different, or additional evidence, and to have a hearing for this purpose before the United States District Judge, you must, at the same time that you file your written objections, include a "Statement of Necessity" that sets forth the following:

1. Why the record made before the Magistrate Judge is inadequate. 2. Why the evidence to be proffered at the requested hearing before the United States District Judge was not offered at the hearing before the Magistrate Judge. 3. An offer of proof setting forth the details of any testimony or other evidence (including copies of any documents) desired to be introduced at the requested hearing before the United States District Judge.

From this submission, the United States District Judge will determine the necessity for an additional evidentiary hearing, either before the Magistrate Judge or before the District Judge.

Mail your objections and "Statement of Necessity" to:

Clerk, United States District Court Eastern District of Arkansas 600 West Capitol Avenue, Room A149 Little Rock, AR 72201-3325

I. Introduction

In this pro se § 1983 action, Plaintiff alleges that, while he was a pretrial detainee in the Saline County Detention Facility (SCDF), Defendant Patrick Lunsford used excessive force against him. Specifically, Plaintiff asserts that Lunsford struck him on the left side of the head, pushed him down toward the floor, and slammed his knee into Plaintiff's shoulder and the side of his face, causing "rip[p]ing of the skin" and bruising of the shoulder and face. He also asserts a claim against Defendant Sheriff Bruce Pennington because, when he heard about what had happened to Plaintiff, he said he "couldn't control what his deputies did when he wasn't there." (Docket entry #2, at 5.)

Defendants have filed a Joint Motion for Summary Judgment, a Brief in Support, and a Statement of Undisputed Facts. (Docket entries #33, #34, #35.) On January 27, 2012, the Court entered an Order directing Plaintiff to file a Response within thirty days.1 (Docket entry #36.) He elected not to do so.2

For the reasons that follow, the Court recommends that: (1) Defendants' Joint Motion for Summary Judgment be denied; and (2) counsel be appointed to represent Plaintiff and file an Amended Complaint clarifying his claims.

II. Discussion

A. Failure to Exhaust Administrative Remedies.

In Defendants' Joint Motion for Summary Judgment and Brief in Support, they argue that they are entitled to judgment, as a matter of law, because Plaintiff failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act (PLRA).3 In pertinent part, the PLRA provides that: "No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). A prisoner's failure to exhaust administrative remedies is an affirmative defense which Defendants must plead and prove. Jones v. Bock, 549 U.S. 199, 204, 216 (2007).

According to the Affidavit of Sgt. Michael Richards, Plaintiff was incarcerated in the SCDF from January 27, 2011, to July 12, 2011.4 (Richards Aff. ¶ 2 & Ex. C.) Plaintiff alleges that the excessive force incident occurred the third weekend in February, or sometime in March, 2011. (Docket entries #2, at 5; #21, at 1.) The SCDF grievance policy requires that a grievance be filed "promptly" after an incident. (Richards Aff. ¶ 4 & Ex. B.) Sgt. Richard states that Plaintiff's inmate file and grievance file contain no record of him filing any grievances during his detention in the SCDF. (Id. ¶ 5 & Ex. C.)

On July 12, 2011, Plaintiff was transferred from the SCDF to the Arkansas State Hospital (ASH) "to be held without bond." (Id. ¶ 2 & Ex. C.) On September 15, 2011, Plaintiff filed this § 1983 action. At that time, he had been confined in the ASH for over sixty days.5 (Docket entry #2, at 3.)

The Court has electronically accessed the records of Plaintiff's relevant criminal proceedings in Saline County Circuit Court. See State v. Michalek, No. 63CR-10-525.6 On November 9, 2010, the Saline County Circuit Court ordered Plaintiff to undergo a mental evaluation. (See Court Ex. 1.) On March 24, 2011 — only a short time after the alleged excessive-force incident giving rise to this § 1983 action -Plaintiff underwent a forensic evaluation by Dr. Nicholaus Paal.7 (See Court Ex. 2, at 3.) In that evaluation, Dr. Paal noted that Plaintiff's "reality contact appeared tenuous at times," his thought processes were "frequently rather unusual and difficult to follow," and he "verbalized some delusional beliefs." Dr. Paal diagnosed Plaintiff with a psychotic disorder, and expressed the opinion that Plaintiff was not fit to proceed with his pending criminal proceedings "due to his delusional beliefs and his erratic behavior."8 (Id.)

On April 6, 2011, the Saline County Circuit Court entered a "Not Fit to Proceed Commitment Order." (Court Ex. 3.) The court determined that, based on Dr. Paal's evaluation, Plaintiff lacked the fitness to proceed with his criminal proceedings, suspended the proceedings, and committed him to the ASH for "detention, care and treatment until restoration of fitness to proceed." (Id. ¶ 2.) Thus, at the time of the alleged excessive-force incident and during the weeks that followed, it seems clear that Plaintiff was suffering from psychotic disorders, which caused him at times to have only tenuous contact with reality and to express delusional beliefs.

On July 12, 2011, Plaintiff was admitted to the ASH. On September 7, 2011, Michael J. Simon, Ph.D., Supervising Forensic Psychologist, prepared a "Forensic Reevaluation," based on Plaintiff's treatment records, a clinical interview, and other materials. (Court Ex. 2, at 1-2.) According to Dr. Simon's report, Plaintiff was "quite suspicious and oppositional" upon admission to the ASH and exhibited "grandiose delusions." He was placed on anti-psychotic medication9 (Id. at 4-5.)

Dr. Simon diagnosed Plaintiff with schizoaffective disorder (bipolar type) and personality disorder NOS (antisocial traits). (Id. at 1-2, 6.) He found that Plaintiff now had the capacity to understand the criminal proceedings against him and to assist effectively in his own defense, but, at the time of the charged offenses, he lacked the capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. (Id. at 6-7.)

On September 20, 2011, the Saline County Circuit Court entered a "Judgment of Acquittal Because of Mental Disease or Defect." The Judgment also committed Plaintiff to the ASH for further treatment and evaluation. (Court Ex. 4.) Thus, at the time of the alleged excessive-force incident, Plaintiff had long-standing, serious mental health issues.

The PLRA requires exhaustion of administrative remedies "as are available."10 42 U.S.C. § 1997e(a). Although the PLRA does not provide a definition, "the plain meaning of the term `available' is `capable of use for the accomplishment of a purpose: immediately utilizable . . . accessible.'" Miller v. Norris, 247 F.3d 736, 740 (8th Cir. 2001) (citation omitted). Courts have held that, to satisfy the burden of showing that a § 1983 complaint should be dismissed for non-exhaustion of "available" remedies, an incarcerating facility's officials must demonstrate "not only that [a prisoner] had access to [the facility's] administrative grievance process but also that he was actually capable of filing such a grievance." Braswell v. Corrections Corp. of America, 419 F. App'x 622, 625 (6th Cir. 2011) (emphasis in original); Jenkins v. Federal Bureau of Prisons, No. CA3:10-1968-CMC-JRM, 2011 WL 4482074, at *3 (D.S.C. Sept. 26, 2011); see also Days v. Johnson, 322 F.3d 863, 867 (5th Cir. 2003) ("[O]ne's personal inability to access the grievance system could render the system unavailable."), overruled by implication on other grounds, Jones, 549 U.S. at 216.

Physical or mental infirmities may render administrative remedies "unavailable," and excuse a prisoner from complying with the PLRA's exhaustion requirement. Braswell, 419 F. App'x at 625-26 (genuine factual dispute existed where inmate's mentally impaired condition raised "substantial doubt as to whether [he] was mentally capable of filing a grievance"); Pavey v. Conley, 544 F.3d 739, 740 (7th Cir. 2008) (factual issue existed regarding whether exhaustion was excused because prisoner with broken arm was unable to fill out a grievance form); Days, 322 F.3d at 867-68 (remedies were "unavailable" when inmate's grievance was rejected as untimely and untimeliness was due to a physical injury); Jenkins, supra at *5 (remedies were "unavailable" during inmate's hospitalization and incapacitation due to second and third degree burns over a significant portion of his body); Johnson-Ester v. Elyea, No. 07-CV-4190, 2009 WL 632250, at *6-*7, *9 (N.D. Ill. Mar. 9, 2009) (remedies were "unavailable" where prisoner's "physical and mental condition rendered him unable to invoke and exhaust any administrative procedures on his own"); Whitington v. Sokol, 491 F.Supp.2d 1012, 1019-20 (D. Colo. 2007) (refusing to dismiss for non-exhaustion where prisoner was transferred to mental institution shortly after alleged use of excessive force, remained in a psychiatric ward for six months, and alleged he was incompetent during the period for filing a grievance and mentally unable to complete the grievance process).

Based on the medical records in Plaintiff's Saline County Circuit Court criminal case, it seems very unlikely that Plaintiff was mentally capable of accessing SCDF's grievance procedures. At the very least, there is a "genuine dispute" about the "availability" of those grievance procedures to Plaintiff.

Defendants have failed to satisfy their burden of establishing that Plaintiff failed to exhaust available administrative remedies. Thus, they are not entitled to summary judgment on that issue.

B. Supervisory Liability of Defendant Pennington.

Defendants also argue that Defendant Pennington is entitled to summary judgment because he was not personally involved in the alleged incident and there is no evidence of a continuing violation. A supervising officer can be liable for an inferior officer's conduct only "if he directly participated in the constitutional violation, or if his failure to train or supervise the offending actor caused the deprivation." Parrish v. Ball, 594 F.3d 993, 1001 (8th Cir. 2010) (citations omitted).

Plaintiff's Complaint does not specify whether Defendant Pennington is being sued in his individual or his official capacity, nor does Plaintiff elaborate on the allegations against him.11 Given the serious questions surrounding Plaintiff's mental capacity at the time he initiated this action, the Court recommends that a ruling on Defendant Pennington's request for summary judgment be held in abeyance until counsel is appointed for Plaintiff and he or she has an opportunity to consider whether to amend this claim or abandon it.

C. Availability of Relief.

The only relief sought by Plaintiff is as follows: "I want Saline County Sheriff's office to drop the charges against me in exchange I will drop this case." (Docket entry #2, at 6.) Defendants argue that this request must be denied because any decisions about bringing or dropping charges are made by the prosecutors and the court system, not these Defendants.

The Court agrees that these Defendants cannot provide the specific relief requested. However, a pro se complaint and other pleadings must be liberally construed. Whitson v. Stone County Jail, 602 F.3d 920, 922 n.1 (8th Cir. 2010). Plaintiff's factual allegations are directed toward an alleged incident of excessive force while he was a pretrial detainee, not the validity of the criminal charges against him. Again, this is an issue that should be clarified and developed by appointed counsel.

D. Appointment of Counsel.

The record in this case strongly suggests that, at the time of the alleged incident and thereafter, Plaintiff was suffering from (and may still be suffering from) significant mental limitations due to diagnosed psychotic disorders. The nature and extent of these limitations is unclear.12 Thus, the Court believes that counsel should be appointed to represent Plaintiff and file an Amended Complaint on his behalf.

III. Conclusion

IT IS THEREFORE RECOMMENDED THAT:

1. Defendants' Joint Motion for Summary Judgment (docket entry #33) should be DENIED in its entirety, without prejudice to resubmission after the issues in this case have been further developed.

2. Plaintiff should be allowed to proceed with his claims. Counsel should be appointed to represent him and directed to file an Amended Complaint on his behalf.

FootNotes


1. The Order was mailed to Plaintiff at the address he had provided but was returned "undeliverable." On February 8, 2012, Plaintiff notified the Court that his address had changed. The same day, the Clerk mailed another copy of the Order to Plaintiff at his new address. (Docket entries #37-#40.)
2. The case is set for a bench trial, before United States District Judge James M. Moody, during the week of May 14, 2012. Judge Moody has referred all pretrial matters and decisions to the undersigned United States Magistrate Judge. (Docket entry #22.)
3. Summary judgment should be granted if the moving party 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).
4. Sgt. Richards' Affidavit and its exhibits appear at docket entry #41-1.
5. Once Plaintiff entered the ASH, psychologists adjusted and changed Plaintiffs medications for his psychotic disorders, which were causing him to lose contact with reality and experience "delusional beliefs." Plaintiffs ability to draft and file his § 1983 Complaint, after being in the ASH for sixty days, suggests that his medications improved his mental condition.
6. The Court takes judicial notice of the Saline County Circuit Court documents in that case.
7. Dr. Paal's complete evaluation is not available to the Court. However, the results of his evaluation were summarized in a "Forensic Reevaluation" by Michael J. Simon, Ph.D., dated September 7, 2011, and docketed with the circuit court on September 20, 2011. (Court Ex. 2.)
8. A psychologist at the ASH later diagnosed Plaintiff as having schizoaffective disorder (bipolar type) and personality disorder NOS (antisocial traits). (Court Ex. 2, at 1-2, 6.)
9. Dr. Simon noted that this was Plaintiffs second admission to the ASH. According to the report, Plaintiff underwent a forensic evaluation in July 2004, was diagnosed with a psychotic disorder, and was found not fit to proceed with then pending criminal proceedings in Pulaski County Circuit Court. He was admitted to the ASH for detention, care and treatment until restoration of fitness. According to the report, Plaintiff was later adjudicated not guilty by reason of insanity on those charges. On February 9, 2005, he was granted conditional release from the ASH but apparently continued to receive mental health treatment. (Court Ex. 2, at 2-3.)
10. Although Plaintiff was a patient in the ASH at the time he initiated this action, for purposes of the PLRA, he was still a "prisoner" because he was "incarcerated or detained in any facility" and "accused of . . . violations of criminal law." See 42 U.S.C. § 1997e(h) (defining "prisoner" under PLRA).
11. See Baker v. Chisom, 501 F.3d 920, 923 (8th Cir. 2007) (if complaint is silent about capacity in which defendant is sued, court interprets complaint as including only official-capacity claims).
12. The Court has outlined how these mental limitations may well have made the grievance procedure unavailable to Plaintiff. These same mental limitations, however, may also make it very difficult for Plaintiff to maintain his burden of proving his excessive-force claim against Defendant Lunsford.
Source:  Leagle

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