Jasmaine f/k/a Duane L. Fox v. Engrime

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

CIVIL CASE NO. 3:18-cv-00364-MR

JENNIFER ANN JASMAINE,1 )

)

Plaintiff, )

) MEMORANDUM OF

vs. ) DECISION AND ORDER

)

FNU ENGRIME, et al., )

)

Defendants. )

_______________________________ )

THIS MATTER comes before the Court on Defendants’ Motion for

Summary Judgment [Doc. 22].

I. BACKGROUND

The incarcerated Plaintiff, proceeding pro se, filed this action pursuant

to 42 U.S.C. § 1983 on July 1, 2018, challenging the conditions of

confinement she allegedly experienced at the Lanesboro Correctional

Institution.2 Plaintiff named as Defendants Kevin Ingram,3 the Housing Unit

1 Also known as Duane Leroy Fox.

2 Houston v. Lack, 487 U.S. 266 (1988) (establishing the prisoner mailbox rule); see Lewis

v.Richmond City Police Dep’t, 947 F.2d 733 (4th Cir. 1991) (applying the prisoner mailbox

rule to a § 1983 case).

3 “Mr. Engrime” in the Complaint.

Manager for restrictive housing at Lanesboro C.I.; and Maranda Mims,4 the

Prison Rape Elimination Act (“PREA”) Captain at Lanesboro C.I.

Plaintiff alleges that she is a transgender inmate who was approved

for private showers at Lanesboro C.I., and that Defendants deprived her of

such showers. Plaintiff seeks declaratory judgment, nominal damages, fees

and costs, injunctive relief, a jury trial, and all other relief that the Court

deems just and equitable.

Defendants filed a Motion for Summary Judgment [Doc. 22], arguing

that Plaintiff failed to exhaust her administrative remedies before filing the

Complaint; that there was no constitutional violation with regards to Plaintiff’s

conditions of confinement; that the claims for damages against Defendants

in their official capacities are barred by sovereign immunity; and that

Defendants are entitled to qualified immunity because they did not violate

any of Plaintiff’s clearly established rights.

Plaintiff was informed of the legal standard that applies to summary

judgment motions and of the importance of filing a persuasive response to

Defendants’ Motion. [Doc. 25]. However, Plaintiff has not filed a response

and the time to do so has expired.

4 “Ms. Mims” in the Complaint.

II. STANDARD OF REVIEW

Summary judgment is appropriate “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). The relevant inquiry is “whether

the evidence presents a sufficient disagreement to require submission to a

jury or whether it is so one-sided that one party must prevail as a matter of

law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). To

withstand a motion for summary judgment, “the nonmoving party must rely

on more than conclusory allegations, mere speculation, the building of one

inference upon another, or the mere existence of a scintilla of evidence.

Dash v. Mayweather, 731 F.3d 303, 311, (4th Cir. 2013).

III. DISCUSSION

A. Exhaustion

The Prison Litigation Reform Act (“PLRA”) states 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 confined in any jail, prison, or other

correctional facility until such administrative remedies as are available are

exhausted.” 42 U.S.C. § 1997(a). There is “no question that exhaustion is

mandatory under PLRA and that unexhausted claims cannot be brought in

court.” Jones v. Bock, 549 U.S. 199, 211 (2007) (citing Porter v. Nussle, 534

U.S. 524 (2002)). The exhaustion of administrative remedies must occur

before a civil action is commenced. Porter, 534 U.S. at 516. A prisoner may

not exhaust her administrative remedies during the pendency of a § 1983

action. Germain v. Shearin, 653 F. App’x 231, 234 (4th Cir. 2016); French v.

Warden, 442 F. App’x 845, 846 (4th Cir. 2011).

The North Carolina Department of Public Safety (“NCDPS”) has

established a three-step procedure governing submission and review of

inmate grievances, which it refers to as the Administrative Remedies

Procedure (“ARP”).5 N.C. Gen. Stat. § 148-11A; Moore v. Bennette, 517

F.3d 717, 721 (4th Cir. 2008). Under the ARP, an inmate must submit a

grievance at step one and then may appeal an unfavorable decision from

step one at steps two and three. Id. A decision at step three of the ARP

exhausts the prisoner’s remedies under the PLRA.

The Defendants support their Motion for Summary Judgment with an

affidavit from Kimberly Grande, the Executive Director of NCDPS’s Inmate

Grievance Resolution Board. Grande states that Plaintiff did not complete

ARP until the grievance examiner issued a written step-three order on July

16, 2018. [Doc. 24-4 at ]; [see Doc. 24-6 at 1]. Plaintiff filed the Complaint

5 Defendants have submitted a copy of the ARP as Exhibit A to Kimberly Grande’s

Declaration. [See Doc. 24-5 at 1].

on July 1, 2018, before the ARP was complete. [See Doc. 1]. Therefore,

this action was initiated before Plaintiff exhausted her administrative

remedies and Defendants’ Motion for Summary Judgment will be granted for

lack of exhaustion.6

B. Eighth Amendment

Even if Plaintiff’s claims were not subject to dismissal for lack of

exhaustion, the Court concludes that such claims are subject to dismissal on

the merits.

The Eighth Amendment prohibits excessive sentences and protects

inmates from inhumane treatment and conditions while imprisoned. Williams

v. Benjamin, 77 F.3d 756, 761 (4th Cir.1996); see Farmer v. Brennan, 511

U.S. 825, 832 (1994) (the Constitution “does not mandate comfortable

prisons, … but neither does it permit inhumane ones.”) (quoting Rhodes v.

Chapman, 452 U.S. 337, 349 (1981)). To establish a violation of the Eighth

Amendment in the context of a challenge to conditions of confinement, an

inmate must allege (1) a “sufficiently serious” deprivation under an objective

standard and (2) that prison officials acted with “deliberate indifference” to

6 Unexhausted claims of this type are usually dismissed without prejudice. See Dillard v.

Anderson, 2010 WL 9553022, at *2 (W.D.N.C. Sept. 6, 2010). However, the instant case

will be dismissed with prejudice because Defendants are entitled to summary judgment

on the merits of Plaintiff’s claims as well.

the inmate’s health and safety under a subjective standard. Wilson v. Seiter,

501 U.S. 294, 297-99 (1991). To demonstrate that a deprivation is extreme

enough to satisfy the objective component of an Eighth Amendment claim, a

prisoner must “produce evidence of a serious or significant physical or

emotional injury resulting from the challenged conditions,” Strickler v.

Waters, 989 F.2d 1375, 1381 (4th Cir. 1993), or demonstrate a substantial

risk of such serious harm resulting from the prisoner’s unwilling exposure to

the challenged conditions, see Helling v. McKinney, 509 U.S. 25, 35-36

(1993). The subjective prong requires a plaintiff to allege facts that indicate

a particular defendant acted with deliberate indifference, that is, that the

defendant was both aware of the facts from which the inference could be

drawn that a substantial risk of harm exists and that the defendant drew the

inference. See Farmer, 511 U.S. at 837. A showing of negligence does not

rise to the level of deliberate indifference. Davidson v. Cannon, 474 U.S.

344, 347-48 (1986).

Plaintiff alleges that she was approved to shower privately in

Lanesboro C.I.’s receiving area because she is transgender.7 However,

7 Although Plaintiff did not file a response to Defendants’ Motion for Summary Judgment,

the Court treats her verified Complaint as an affidavit for purposes of this discussion. See

Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991) (a verified complaint is the equivalent

of an affidavit for purposes of summary judgment when the allegations therein are based

on personal knowledge).

when she was moved from general population to restrictive housing on June

4, 2018 due to a change in her custody status to intensive control (“ICON”),

she was no longer permitted to shower in the receiving area. She alleges

that the only shower on the restrictive housing unit “faces the cells #3 and #5

[and those] cells can see into the shower, so this is not a private shower.”

[Doc. 1 at 9]. Plaintiff alleges that Defendants thus deprived her of the

opportunity to shower which is a basic human need.

Defendants argue in their Motion for Summary Judgment that no

Eighth Amendment violation occurred. Defendants agree that Plaintiff was

approved to shower in the receiving area while she was housed in general

population because the showers in the general populations units were not

sufficiently private. [Doc. 24-1 at 2: Mimms Affidavit; Doc. 24-2 at 2: Ingram

Affidavit]. Plaintiff’s showers in receiving were discontinued when her

custody status was changed to ICON because inmates housed in restrictive

housing at Lanesboro C.I. were not permitted to move about the facility as

freely as inmates housed in the general population. [Id.]. Defendant Ingram

states that the restrictive housing unit has an individual shower that is located

in an area not visible to other offenders and that the the shower is equipped

with a privacy screen from the knees to the upper chest of an average-sized

person. [Doc. 24-2 at 2-3]. Defendant Ingram states that an individual

standing in the shower is not visible to others outside the shower, particularly

from the knees to the upper chest. [Doc. 24-2 at 3]. Defendants Mims and

Ingram inspected the shower on restrictive housing after Plaintiff complained

about the lack of a private shower, and they concluded that it was sufficiently

private. [Doc. 24-1 at 2-3]; [Doc. 24-2 at 2-3]. Defendant Mims also had a

PREA Advisor from NCDPS’s central office in Raleigh come examine the

restrictive housing shower, and the advisor confirmed that individuals in

other cells of that unit could not see into the shower and that it was sufficiently

private. [Doc. 24-1 at 2]. Defendants Ingram and Mims state that they did

not deny Plaintiff access to a shower that is not visible to other offenders and

that they have no knowledge of other correctional staff doing so. [Doc. 24-1

at 3]; [Doc. 24-2 at 3].

The Plaintiff has failed to present a forecast of evidence from which a

reasonable jury could conclude that Defendants were deliberately indifferent

to her need for an adequately private shower. Defendants have both

submitted sworn statements that they investigated Plaintiff’s concerns, found

the shower facility to be adequately private, verified the shower’s privacy with

a PREA Advisor, and are not aware of Plaintiff being denied access to an

adequately private shower. Plaintiff has failed to come forward with any

evidence that Defendants were subjectively aware of, and intentionally

disregarded, her needs in this regard. Because Plaintiff has failed to

demonstrate the existence of a genuine dispute of material fact with respect

to this essential element, Defendants are entitled to summary judgment on

Plaintiff's Eighth Amendment claims.®

IV. CONCLUSION

For the reasons stated herein, the Court will grant Defendants’ Motion

for Summary Judgment.

ORDER

IT IS, THEREFORE, ORDERED that Defendants’ Motion for Summary

Judgment [Doc. 22] is GRANTED, and this action is DISMISSED WITH

PREJUDICE.

The Clerk is directed to terminate this action.

IT IS SO ORDERED.

Signed: August 4, 2020

Se ee

Chief United States District Judge AS

8 In light of the Court’s conclusion that Plaintiff's forecast of evidence fails to show a

constitutional violation, this likewise establishes the Defendants’ entitlement to qualified

immunity. Booker v. S.C. Dep't of Corr., 855 F.3d 533, 538 (4 Cir. 2017). Therefore

also, the Court need not address the Defendants’ sovereign immunity defense.