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:
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:
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.
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.
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).
According to the Affidavit of Sgt. Michael Richards, Plaintiff was incarcerated in the SCDF from January 27, 2011, to July 12, 2011.
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.
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.
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 medication
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."
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.
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.
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.
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.
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.