Curry v. ScottCurry v. Scott
KATHLEEN McDONALD O‘MALLEY, District Judge. Plaintiffs-appellants, Greg Curry, Leonard Allen, Keith Brooks, Derek Cannon, James Chisolm, Kevin King, Jeffrey Shorter, Orson Wells, and Andre Williams, are African-American men who are inmates at the Southern Ohio Correctional Facility (“SOCF“) in Lucasville, Ohio. Defendants-appellees, David Scott, Terry Collins, James Hieneman, Dianne Walker, Major James Adkins, Captain John Newsome, Captain Donald Redwood, and Darren Howard, are employed at SOCF. At the time of the events leading to this cause of action, Scott and Howard were corrections officers, Collins was the warden, Hieneman and Walker were deputy wardens, and Adkins, Newsome and Redwood were Scott‘s supervisors.
Plaintiffs brought suit under
I. Background
This appeal arises out of the consolidation of two actions. Scott is the primary defendant in both actions. The first lawsuit was brought by plaintiff Greg Curry. Curry alleges that Scott assaulted him in retaliation for an incident that occurred on Easter Sunday, 1996, when Scott refused to serve Curry breakfast because of Curry‘s alleged participation in a riot that occurred three years before. Other inmates overheard Scott and threw food at him. Scott promised Curry retaliation at a later time. On April 11, 1996, a few days later, Curry alleges that Scott, without provocation, punched Curry in the face, threw him to the ground, and banged his head against the floor while Curry‘s hands were cuffed behind his back and his legs were shackled together. Curry immediately filed an administrative grievance complaining of Scott‘s conduct and, on August 22, 1996, instituted this action.
The second lawsuit involved the rest of the plaintiffs: Allen, Brooks, Cannon, Chisolm, King, Shorter, Wells, and Williams. These plaintiffs allege that, on April 26, 1996, Scott assaulted each of them while they were connected to each other by a “rec-chain,” a long length of chain used to transport prisoners. These plaintiffs were also handcuffed behind their back and were wearing leg shackles. After a brief verbal exchange with these inmates, plaintiffs allege that Scott became enraged. These plaintiffs allege that Scott worked his way down the chain assaulting each of them in turn. Scott punched Shorter in the face and threw him to the ground. Scott hit Chisolm and King in the face and struck Wells in the face and head. Scott pushed Cannon against a wall and punched him in the back of his head and under his right eye. Scott also bit Cannon on the upper back. Scott
All plaintiffs brought claims under §1983 against Scott, alleging that he used excessive force against them. The plaintiffs involved in the rec-chain incident also brought a claim against Howard, alleging he failed to protect them from Scott‘s use of excessive force, despite the opportunity and obligation to do so.
All plaintiffs also alleged that the prison warden, deputy wardens and various supervisors knew of Scott‘s propensity to be abusive and racially hostile toward African-American prisoners, but did nothing to stop Scott, or protect prisoners from Scott‘s potential abuse. Thus, plaintiffs claim that these supervisors violated their Eighth Amendment rights through deliberate indifference to the harm Scott posed to their well-being.
Scott began work as a corrections officer at SOCF on December 6, 1993.1 As of 1996, numerous complaints had been filed against Scott for racist remarks and behavior targeted at both African-American inmates and African-American corrections officers. The district court listed the complaints as follows:
- Four complaints of verbal abuse from inmates.
- One complaint from fellow corrections officers of use of racial slurs towards inmates.
Two complaints of shaking down inmates harshly, or only shaking down African -American inmates. - One complaint from an inmate that Scott falsely accused him of a rules infraction.
- One complaint from an African-American corrections officer that Scott falsely accused him of misconduct.
- Three incident reports filed by Scott where African-American inmates suffered unexplained injuries in his custody. (None of these inmates ever filed complaints.)
- Two Use of Force Committee reports finding that Scott used force on African-American inmates justifiably and appropriately.
- Two incident reports filed by Scott regarding his use of force but with no finding by the Use of Force Committee.
There were also nineteen inmate complaints regarding Scott‘s use of racial slurs and harassment, though there seems to be some overlap between these complaints and the ones listed above. In addition, the plaintiffs in this case, nine all together, each filed a complaint stating that Scott used excessive force against them regarding the incidents alleged in their two lawsuits. Scott was never formally disciplined for any of these incidents. He was, however, ordered to undergo re-training and corrective counseling on several occasions. There was also a memorandum in Scott‘s disciplinary file from an institutional inspector to warden Collins expressing his belief that, if Scott were not disciplined, someone would likely be hurt as a result of his conduct.
After the April 11, 1996 incident involving Curry, Scott was again ordered to attend corrective counseling. A Use of Force Committee subsequently found that Scott had not used inappropriate force in the incident. Scott was not removed from his duties as a corrections officer during the pendency of the investigation.
After the April 26, 1996 incident involving the rec-chain plaintiffs, another Use of Force investigation was ordered. Scott, again, was not disciplined or suspended while the
On May 16, 1996, Scott told a racist joke over a prison intercom system. Because of this infraction, Scott was placed on administrative leave without pay. He was terminated, June 26, 1996, for telling the racist joke.
II. Procedural History
This case comes to the Sixth Circuit Court of Appeals after the district court judge ruled on defendants’ motion to dismiss and motion for summary judgment, and then certified the issues decided in those rulings for appeal, pursuant to
The defendants’ motion to dismiss asserted that all the plaintiffs had failed to exhaust their administrative remedies under the Prison Litigation Reform Act [“PLRA“],
The district court next found that, of the rec-chain plaintiffs, Allen, Brooks, Cannon, Wells, and Williams had exhausted their claims against Scott and the supervisory defendants, because they too had successfully appealed their grievances to the chief inspector before filing their amended complaint. The district court found that Chisolm, King and Shorter, however, had not exhausted their administrative remedies as of the date of the court‘s order ruling on the motion to dismiss. The district court therefore dismissed Chisolm, King, and Shorter from the action.
Defendants also filed a motion for summary judgment, contending the undisputed facts showed that supervisory employees Collins, Hieneman, Walker, Adkins, Newsome, and Redwood were not deliberately indifferent to the danger Scott posed to the inmates. The district court granted these motions for summary judgment, holding that, though Scott‘s employment record was “deplorable” and “reprehensible,” no reasonable jury could find these supervisory employees were deliberately indifferent to Scott‘s potential use of excessive force against African-American prisoners.
Scott also moved for summary judgment against plaintiff Curry only, stating that his use of force was reasonable under the circumstances because Curry was not severely injured and because Curry allegedly attempted to head-butt and spit on him. The district court denied Scott‘s motion, finding that issues of material fact, namely Curry‘s description of events, precluded summary judgment.
After the district court ruled, plaintiffs Chisolm, King, and Shorter filed a motion for reconsideration, providing documentation that they had, indeed, exhausted their administrative remedies some months prior to the court‘s ruling. The district court, finding there was no good excuse for the failure by Chisolm, King and Shorter to provide the court with documentation of their appeals to the chief inspector earlier, refused to reconsider its ruling.
Thus, following the entry of its ruling, the only claims remaining in the district court were those of Curry, Allen, Brooks, Cannon, Wells, and Williams against Scott, for excessive use of force. The district court then certified the matters decided in its February 12, 1999 order for immediate appeal, under
III. Issues on Appeal
The plaintiffs appeal three issues: (1) the dismissal of Chisolm, King, and Shorter for failure to exhaust; (2) the dismissal of all claims against Howard on exhaustion grounds; and (3) the dismissal of the supervisory defendants on summary judgment. The defendants did not file a cross-appeal.
The plaintiffs who were dismissed for failure to exhaust (Chisolm, King, and Shorter) contend that: (1) it is unnecessary to exhaust “excessive force claims,” because “excessive force” does not qualify as a “prison condition” under
All plaintiffs involved in the rec-chain incident (Allen, Brooks, Cannon, Wells, and Williams, as well as Chisolm, King, and Shorter) contend that it was error to dismiss Howard on the ground that no plaintiff had brought a specific grievance against him.
All plaintiffs, including Curry, contend it was error for the district court to dismiss the supervisory employees (Collins, Hieneman, Walker, Adkins, Newsome and Redwood) on summary judgment because the district court erroneously decided an issue of fact—namely, whether a jury could determine from the evidence before it that the supervisors had actual knowledge of the risk Scott posed of causing serious harm.
Defendants, without appealing the district court‘s decision themselves, contend that the district court erred in finding that plaintiffs Curry, Allen, Brooks, Cannon, Wells, and Williams
A.
In the district court, defendants joined in plaintiffs’ request that matters in the court‘s February 12, 1999 order be certified for immediate appeal. In doing so, defendants told the district court that they intended to file an appeal regarding the court‘s conclusion that plaintiffs Curry, Allen, Brooks, Cannon, Wells, and Williams had adequately exhausted their state administrative remedies. Despite this assertion, defendants did not file any appeal; yet, they now assert we may still consider that portion of the district court‘s order. In support of this proposition, defendants rely on Brown v. Toombs, 139 F.3d 1102, 1104 (6th Cir. 1997), which held that courts, including courts considering the issue for the first time on appeal, should enforce the exhaustion requirement of the PLRA sua sponte, even if not raised by a defendant. Defendants believe that Toombs forgives their failure to file a timely cross-appeal (after having requested and been given the right to do so) on this issue.
The plaintiffs contend, to the contrary, that Toombs does not, in the absence of a cross-appeal, open the door to reconsideration of those exhaustion issues decided in their favor by the district court. Plaintiffs argue that, because this Court decided Toombs before we determined that the exhaustion requirement of
We need not answer this argument here; even if we were to agree with the defendants that it is appropriate for us to address the exhaustion issue despite their failure to cross-appeal, we find that the district court‘s refusal to dismiss the claims of Curry, Allen, Brooks, Cannon, Wells, and Williams on exhaustion grounds was not erroneous.2 As noted, the district court concluded that these six plaintiffs could continue
While the preferred practice is for inmates to complete the grievance process prior to the filing of an action and to attach to their complaint documentation of that fact, “because the exhaustion requirement is not jurisdictional, district courts have some discretion in determining compliance with the statute.” Wyatt v. Leonard, 193 F.3d 876, 879 (6th Cir. 1999). Thus, this Court has acknowledged that the circumstances presented to a district court may “raise questions about whether it is fair to require the prisoner to know that administrative remedies must be exhausted before filing a complaint.” Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999). We have expressly found that substantial compliance with the exhaustion requirements in the form of good faith efforts to contact prison personnel can be deemed sufficient “exhaustion” under the PLRA, where the events giving rise to the claim occurred prior to passage of the Act. Id.; see also Herring v. Mitchell, 1:98-CV-357, slip op. (N.D. Ohio, July 2, 1998) (refusing to dismiss action under
As the district court pointed out, moreover, in Larkins v. Wilkinson, 1998 WL 898870 at *2 (6th Cir. Dec. 17, 1998), this Court implied, without deciding, that exhaustion of
Plaintiffs Curry, Allen, Brooks, Cannon, Wells, and Williams all filed their claims shortly after the effective date of the PLRA, and well before the development of any case law regarding the procedures for compliance with the new Act‘s exhaustion requirements. None of these inmates had the benefit of the description in Toombs of the preferred procedure under
B.
Plaintiffs Chisolm, King, and Shorter appeal their dismissal for failure to exhaust their administrative remedies under
Several weeks after the district court entered its order dismissing these claims, plaintiffs filed a motion under Rule 60(b) of the Federal Rules of Civil Procedure, asking the Court to reconsider its order. In support of their Rule 60(b) motion, plaintiffs submitted materials indicating that the grievances of Chisolm and Shorter had, in fact, been appealed to the chief inspector, who responded to those grievances in May of 1998. Plaintiffs did not provide documentation indicating that King had pursued an appeal to the chief inspector, and offered no explanation for failing to submit the documentation regarding Chisolm and Shorter to the district court sooner. The district court refused to reconsider its original ruling, finding the prisoners had not exercised due diligence in attempting to provide this evidence to the court before it ruled on the motion to dismiss. See Good v. Ohio Edison Co., 149 F.3d 413, 423 (6th Cir. 1998) (holding that,
Plaintiffs Chisolm, King, and Shorter do not provide any new explanation for their lack of diligence in providing evidence of exhaustion to the district court. Instead, they contend they do not need to exhaust claims that: (1) ask for monetary damage, as the prison grievance procedures do not provide monetary relief for a prisoner‘s claims; (2) allege excessive force, as excessive force is not a “prison condition;” or (3) have been reviewed by a Use of Force Committee, since the Use of Force Committee is akin to the prison‘s administrative grievance procedure and operates to alert prison officials to a prisoner‘s claims.
This Court has held definitively that none of the reasons plaintiffs propose to circumvent the prison‘s administrative grievance procedures will qualify as, or excuse exhaustion under,
We find, accordingly, that none of the legal theories upon which these plaintiffs rely either excuse the exhaustion requirements of
Put simply, while we believe it is fair, in the circumstances of this case, to excuse the failure to adhere to the preferred procedure of completing the grievance process prior to the filing of an action and attaching documentation to the original complaint, we also believe it is only fair to require plaintiffs to exercise due diligence to provide documentation of exhaustion to the district court once available. These particular plaintiffs did not exercise that diligence here. Thus, we affirm the district court‘s decision to dismiss these plaintiffs for failure to exhaust under
The remaining rec-chain plaintiffs (Allen, Brooks, Cannon, Wells, and Williams) contend it was error for the district judge to dismiss their claims against Howard, the corrections officer who witnessed Scott‘s assault on them and allegedly failed to intervene. The district judge dismissed that claim because none of the prisoners complained about Howard‘s behavior, nor even mentioned Howard in their prison grievances. The district court, therefore, held that the prisoners’ claims were not exhausted as to Howard.
Plaintiffs argue that requiring prisoners to put forth all legal theories in their grievances imposes an unduly heightened pleading standard on §1983 plaintiffs. Plaintiffs assert that prison personnel knew who was involved in the incidents that were the subject of their grievances and knew their respective roles. Because prison officials were aware of these facts, plaintiffs assert they were not required to identify every person against whom they had a grievance in their written complaints to prison authorities. Plaintiffs argue that an investigation into Howard‘s role in the incident would have flowed naturally from, or been encompassed within, even the most general grievance and, accordingly, nothing beyond the grievances they filed was required to institute administrative proceedings against Howard.
The claim against Howard, however, is a separate claim, against a separate individual, premised on a separate and independent legal theory. Because Howard was not mentioned in the prisoners’ grievances, SOCF did not know that the prisoners specifically had a grievance against him, so SOCF had no reason to pursue any claim or disciplinary action against Howard based on the prisoners’ official complaints. As this Court stated in Freeman v. Francis, 196 F.3d at 644, “the importance of using the prison grievance process [is] to alert prison officials to problems.” The plaintiffs’ grievances may have alerted SOCF to problems with Scott, but they did not reasonably alert SOCF to problems with Howard.
D.
Finally, plaintiffs contend it was error to dismiss the supervisory employees on summary judgment, because issues of material fact preclude their dismissal. Plaintiffs contend that Scott‘s employment record contained sufficient references to his propensity to discriminate against and abuse African-American prisoners to create an issue of fact regarding whether the supervisors, aware of Scott‘s long and “deplorable” record, were deliberately indifferent to the risk Scott posed of using excessive force against African-American inmates.
As described above, plaintiffs proffer a long record of complaints and incident reports filed against Scott. As the district court noted, the many complaints, incident reports, and Use of Force investigations paint a picture of a “reprehensible” prison guard whose infractions and alleged infractions appeared aimed at a particular class of targets or victims—all African-Americans. In addition to Scott‘s disciplinary record, the district court also had before it an internal memorandum from an institutional inspector to defendant Collins, suggesting that Scott be disciplined before that someone got hurt by his conduct.
We review de novo the district court‘s order granting summary judgment. Avery v. King, 110 F.3d 12, 13 (6th Cir. 1997). Summary judgment is appropriate where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
We find that, in this case, issues of material fact preclude summary judgment in defendants’ favor. Specifically, we conclude that a trier of fact could find, based on the evidence submitted, that the supervisory defendants actually knew Scott posed a substantial risk of serious harm to prison inmates.
In its prohibition of “cruel and unusual punishments,” the Eighth Amendment places restraints on prison officials, directing that they may not use excessive physical force against prisoners and must also “take reasonable measures to guarantee the safety of the inmates.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526-527 (1984)). To establish liability under the Eighth Amendment for a claim based on a failure to prevent harm to a prisoner, plaintiffs must show that the prison officials acted with “deliberate indifference” to a substantial risk that Scott would cause prisoners serious harm. Farmer v. Brennan, 511 U.S. at 834; Helling v. McKinney, 509 U.S. 25, 32, (1993); Woods v. Lecureux, 110 F.3d 1215, 1222 (6th Cir. 1997); Street v. Corrections Corp. of Am., 102 F.3d 810, 814 (6th Cir.1996); Taylor v. Michigan Dep‘t of Corrections, 69 F.3d 76, 79 (6th Cir.1995).5
To satisfy the subjective component, plaintiffs must show that the prison officials had “a sufficiently culpable state of mind.” Id. (citation omitted). A “sufficiently culpable state of mind” is one in which “the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Id. at 837. A prison official can be liable if he “disregards that risk by failing to take reasonable measures to abate it.” Id. at 848.
Plaintiffs may prove that the defendants had actual knowledge of a substantial risk “in the usual ways,” according to the Supreme Court. See id. at 842. That is, a factfinder may infer actual knowledge through circumstantial evidence, or “may conclude a prison official knew of a substantial risk from the very fact that the risk was obvious.” Id.
For example, if an Eighth Amendment plaintiff presents evidence showing that a substantial risk of inmate attacks was “longstanding, pervasive, well- documented, or expressly noted by prison officials in the past, and the circumstances suggest that the defendant-official being sued had been exposed to information concerning the risk and thus ‘must have known’ about it, then such evidence could be sufficient to permit a trier of fact to find that the defendant-official had actual knowledge of the risk.”
Farmer v. Brennan, 511 U.S. at 842. (1994).
Because Scott‘s employment record contains a great deal of evidence concerning his discrimination against African-Americans and his propensity to use force against inmates and cause injury to them, we believe there exists a genuine dispute over a material fact—that is, defendants’ actual knowledge. The district court resolved this dispute itself when it concluded the “defendants should have perceived a risk but did not.” That resolution, more appropriately, is one that should have been left to the trier of fact. Given the substance of Scott‘s employment record, and the affidavits taken of Scott‘s fellow employees and supervisors, a question of fact exists as to whether Scott‘s employment record disclosed that his continued employment posed a substantial risk of serious harm to prison inmates. See, e.g., Woods, 110 F.3d at 1224 (quoting Street, 102 F.3d 810 (6th Cir.1996)) (“‘summary judgment is inappropriate when ‘there are issues of fact as to whether [a defendant in a §1983/Eighth Amendment case] was ‘aware of facts from which the inference could be drawn that a substantial risk of serious harm exist[ed]‘’ and whether he actually ‘dr[e]w the inference‘“). See also Taylor v. Michigan Dep‘t of Corrections, 69 F.3d 76, 84 (6th Cir. 1995) (finding summary judgment inappropriate because there was
As the Supreme Court stated, “a subjective approach to deliberate indifference does not require a prisoner seeking a remedy for unsafe conditions to await a tragic event such as an actual assault before obtaining relief.” Farmer, 511 U.S. at 845. Thus, to prove that the supervisors actually knew that Scott presented a substantial risk of harm to inmates, the plaintiffs need not prove, as the district court appears to conclude, that Scott was found to have used excessive force on another inmate, and that prison officials thereafter left Scott free to assault inmates. Plaintiffs only need show that an issue of material fact exists as to whether the supervisory defendants were aware that Scott posed a risk of substantial injury to the inmates and were deliberately indifferent to that risk. Plaintiffs have done so by proffering Scott‘s troubling employment record, the internal memorandum putting Scott‘s supervisors on notice of the implications of his history, and the sworn statements of Scott‘s co-workers and other supervisors regarding his conduct and attitude.
Defendants argue that no finder of fact could conclude they were deliberately indifferent, because they took steps to deal with Scott‘s behavior within the confines of the collective bargaining agreement—they dealt with each grievance or complaint individually, in an appropriate manner. This argument overlooks plaintiffs’ assertion that the defendants ignored the vast number of complaints and grievances filed against Scott, and the pattern of racial harassment that is shown in these complaints. The argument that all of these trees do not add up to a forest, but should simply be viewed as a collection of trees, may contain merit at trial before a
Thus, we (1) AFFIRM the district court‘s denial of defendants’ motion to dismiss the claims of Curry, Allen, Brooks, Cannon, Wells, and Williams on exhaustion grounds; (2) AFFIRM the district court‘s dismissal of all claims asserted by Chisolm, King, and Shorter, without prejudice, for failure to exhaust administrative remedies, and also AFFIRM the district court‘s denial of the Rule 60(b) motion asking for reconsideration of that dismissal; (3) AFFIRM the district court‘s dismissal of all claims by all plaintiffs against Howard; (4) REVERSE the district court‘s grant of summary judgment to Collins, Hieneman, Walker, Adkins, Newsome, and Redwood; and (5) REMAND this case for trial.8
Notes
As the Supreme Court stated in Farmer v. Brennan, “having stripped [prisoners] of virtually every means of self-protection and foreclosed their access to outside aid, the government and its officials are not free to let the state of nature take its course.” 511 U.S. at 833. Thus, the standards governing Eighth Amendment claims for excessive force are unique and must remain so.