United States District Court, E.D. Missouri, Northern Division
MEMORANDUM AND ORDER
SHIRLEY PADMORE MENSAH, UNITED STATES MAGISTRATE JUDGE
case is before the Court on the Motion for Summary Judgment
filed by Defendants Daryl Taylor, Joshua Crader, and Tammi
Gittemeier (Doc. 53) and the Motion to Dismiss
Plaintiff's Third Amended Complaint filed by the same
defendants (Doc. 57). The motions have been fully briefed,
and the parties have consented to the jurisdiction of the
undersigned United States Magistrate Judge pursuant to 28
U.S.C. § 636(c). For the following reasons, the motion
for summary judgment will be granted and the motion to
dismiss will be denied as moot.
Harry Justus, Jr. is an offender in the Missouri Department
of Corrections (“MDOC”). At all times relevant to
this action, he was incarcerated at the Moberly Correctional
Center (“MCC”) in Moberly, Missouri. Defs.'
SUMF ¶ 1. Plaintiff brings this action pursuant to 42
U.S.C. § 1983 against five defendants: Dr. Ruanne Stamps
and Kayla Nivert, who were medical professionals working at
MCC; and Darryl Taylor, Joshua Crader, and Tammy Gittemeier
(collectively, the “Moving Defendants”), who were
employed by MDOC and working at MCC. In his Third Amended
Complaint, Plaintiff alleges a single count of deliberate
indifference to Plaintiff's medical condition against
each defendant, asserting that each defendant responded
inadequately or inappropriately to his complaints of severe
abdominal pain in or around October 2017.
Department Procedure D5-3.2 (“Offender
Grievance”) provides the appropriate process for an
offender at MCC to pursue a grievance. Defs.' SUMF ¶
17. An Informal Resolution Request (“IRR”) must
be filed within fifteen days of the alleged incident.
Defs.' SUMF ¶ 18. If an IRR is not resolved by
discussion, it is investigated, and a proposed response is
prepared for approval by the Functional Unit Manager.
Defs.' SUMF ¶ 19. The offender is given the
opportunity to review the response and state whether it is
satisfactory or unsatisfactory. Defs.' SUMF ¶ 20. If
the offender is not satisfied, he may file a grievance.
Defs.' SUMF ¶¶ 21-22. The grievance is
investigated, a response is prepared and approved by the
warden, and the response is delivered to the offender.
Defs.' SUMF ¶ 23. The offender may appeal the denial
of the grievance. Defs.' SUMF ¶ 24. Once the
grievance appeal is investigated and responded to, the
offender has exhausted the grievance process. Defs.' SUMF
about October 30, 2017, Plaintiff filed an IRR complaining of
deliberate indifference to his medical needs related to his
complaints of abdominal pain. Defs.' SUMF ¶ 9;
Pl's SOF ¶ 1. On or about November 13, 2017,
Plaintiff's IRR was denied. Defs.' SUMF ¶ 11. On
or about November 20, 2017, Plaintiff filed a grievance,
arguing that the IRR response did not address the harm that
resulted to him. Defs.' SUMF ¶ 13. On or about
December 18, 2017, Plaintiff filed a grievance appeal.
Defs.' SUMF ¶ 14. On or about December 29, 2017,
Plaintiff filed a grievance appeal. Defs.' SUMF ¶
15. On March 20, 2018, the grievance appeal was denied.
Defs.' SUMF ¶ 16.
filed his original pro se prisoner civil rights
complaint in this Court on November 16, 2017. (Doc. 1). The
Court subsequently appointed counsel for Plaintiff. Through
appointed counsel, Plaintiff filed a First Amended Complaint
on July 5, 2018 (Doc. 23) and a Second Amended Complaint on
August 6, 2018 (Doc. 25). On February 27, 2019, the Moving
Defendants filed the instant motion for summary judgment,
arguing that they are entitled to judgment as a matter of law
on the claims against them because Plaintiff failed to
exhaust the prison grievance procedure prior to filing his
initial complaint in this case. After that motion was filed,
Plaintiff filed a Third Amended Complaint (Doc. 56), which
was substantively identical to the Second Amended Complaint
except that it corrected the name of one of the defendants
who is not a Moving Defendant. The Moving Defendants then
filed a Motion to Dismiss the Third Amended Complaint for the
same reasons stated in their Motion for Summary Judgment.
judgment is proper “if the movant 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). See also Hill v. Walker, 737 F.3d 1209, 1216
(8th Cir. 2013). The movant “bears the initial
responsibility of informing the district court of the basis
for its motion” and must identify “those portions
of [the record] . . . which it believes demonstrate the
absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
If the movant does so, the nonmovant must respond by
submitting evidentiary materials that set out “specific
facts showing that there is a genuine issue for trial.”
Id. at 324 (quotation marks omitted). “On a
motion for summary judgment, ‘facts must be viewed in
the light most favorable to the nonmoving party only if there
is a genuine dispute as to those facts.'” Ricci
v. DeStefano, 557 U.S. 557, 586 (2009) (quoting
Scott v. Harris, 550 U.S. 372, 380 (2007) (internal
quotation marks omitted)).
their Motion for Summary Judgment, the Moving Defendants
argue that Plaintiff's claims against them must be
dismissed because Plaintiff failed to exhaust administrative
remedies prior to his initial filing of the case. As
the Moving Defendants point out, the Prison Litigation Reform
Act (“PLRA”) states, “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). See also
Porter v. Sturm, 781 F.3d 448, 451 (8th Cir. 2015)
(“An inmate must exhaust all available administrative
remedies before bringing a § 1983 suit.”). To
properly exhaust available administrative remedies, prisoners
must “complete the administrative review process in
accordance with the applicable procedural rules.”
Jones v. Bock, 549 U.S. 199, 218 (2007) (quoting
Woodford v. Ngo, 548 U.S. 81, 88 (2006)). Those
rules “are defined not by the PLRA, but by the prison
grievance process itself.” Id.; accord
Burns v. Eaton, 752 F.3d 1136, 1141 (8th Cir. 2014).
“An inmate satisfies § 1997e(a) by pursuing
‘the prison grievance process to its final stage'
to ‘an adverse decision on the merits.'”
Porter, 781 F.3d at 451 (quoting Burns, 752
F.3d at 1141). “Nonexhaustion is an affirmative
defense, and defendants have the burden of raising and
proving the absence of exhaustion.” Id. at 451
(citing Jones, 549 U.S. at 211-12).
Eighth Circuit has made it clear that exhaustion of
administrative remedies under the PLRA must have occurred
before the lawsuit was initially filed; it is not sufficient
for the prisoner to exhaust his or her administrative
remedies after filing suit. Johnson v. Jones, 340
F.3d 624, 627 (8th Cir. 2003). In Johnson, the
Eighth Circuit stated:
Under the plain language of section 1997e(a), an inmate must
exhaust administrative remedies before filing suit in federal
court. Thus, in considering motions to dismiss for failure to
exhaust under section 1997e(a), the district court
must look to the time of filing, not the time the district
court is rendering its decision, to determine if exhaustion
has occurred. If exhaustion was not completed at the time of
filing, dismissal is mandatory.
340 F.3d at 627 (emphasis added). See also Harrison v.
Sachse, No. 4:15-CV-631-AGF, 2016 WL 728306, at *3-4
(E.D. Mo. Feb. 24, 2016) (relying on Johnson to
dismiss a complaint where the plaintiff exhausted his
administrative remedies only after the filing of his
complaint; stating, “It does not matter if the
plaintiff was able to fully exhaust ...