The opinion
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
KEVIN M. BROWN, SR., )
)
Plaintiff, )
)
v. ) No. CIV 21-141-RAW-SPS
)
RYAN GRAHAM, et al., )
)
Defendants. )
OPINION AND ORDER
This action is before the Court on Defendants’ motion to dismiss or for summary
judgment (Dkt. 28), Plaintiff’s motion for summary judgment (Dkt. 31), and Plaintiff’s
motion to view all evidence submitted by Plaintiff against the defendants (Dkt. 34). The
Court has before it for consideration Plaintiff’s amended complaint (Dkt. 8), the parties’
motions and responses, and a special report prepared by the Oklahoma Department of
Corrections (DOC) at the direction of the Court, in accordance with Martinez v. Aaron, 570
F.2d 317 (10th Cir. 1978) (Dkt. 26).
Background
Plaintiff, a pro se prisoner in the custody of DOC who is incarcerated at Joseph Harp
Correctional Center in Lexington, Oklahoma, brings this action under the authority of 42
U.S.C. § 1983 seeking monetary damages for alleged constitutional violations occurring
during his incarceration at Mack Alford Correctional Center (MACC) in Stringtown,
Oklahoma. The defendants are the following officials at MACC: Ryan Graham, Deputy
Warden; Tracie Briels, Acting Chief of Security; Lt. Tamblyn Klepper; Diana Reese, Case
Manager; Cindy Lowe, Senior Case Manager; and Paul Ganer, Unit Manager.
Plaintiff alleges in his complaint that he was falsely accused of violating the
Oklahoma Prison Rape Elimination Act (PREA), and prison officials should have known
there was no violation. (Dkt. 8 at 6). He also complains that DOC officials did not conduct
a proper investigation of the allegations against him. Id. at 6, 9. Plaintiff further alleges that
DOC officials provided false information to other inmates in an effort to have him seriously
injured or killed. Id. at 8.
The Court has carefully reviewed the record and construes Plaintiff’s pleadings
liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972). This relaxed standard,
however, does not relieve his burden of alleging sufficient facts on which a recognized legal
claim could be based. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
The PREA policy, which is located in DOC OP-03061, provides guidance for
reporting and investigating allegations of sexual misconduct, as well as definitions of
prohibited sexual misconduct. (Dkt. 26-2). Staff are required to take allegations of
prohibited conduct seriously and to report such allegations to a supervisor or higher
authority. Id. at 3-5, 14.
The record shows that on January 26, 2021, an inmate reported that Plaintiff had
propositioned him for sexual favors on January 22, 2021. (Dkts. 26-4 at 46; 30-2 at 2). The
Incident Report states that in response to the alleged incident, the two inmates were
separated. Id. On January 27, 2021, Defendant Deputy Warden Ryan Graham requested an
2
investigation into the matter. (Dkts. 26-3; 30-1 at 2). In accordance with the PREA,
Plaintiff was moved into segregated housing. (Dkt. 26-2 at 21, Part X(B)). The sexual
misconduct allegations in this matter ultimately were deemed to be unsubstantiated. (Dkts.
26-5; 30-3 at 4; 26-13 at 2).
Petitioner subsequently was recommended for transfer to a different medium security
facility because of repeated allegations of his sexual misconduct. (Dkt. 26-9; 30-7 at 2). On
March 19, 2021, the DOC population office--not any of the defendants--assigned Plaintiff
to North Fork Correctional Center. Id. See also DOC Policy OP-060204 (Inmate
Transfers), which states that inmate transfers are coordinated through the population office.
(Dkt. 26-12 at 3).
Standard of Review for Summary Judgment
Summary judgment is appropriate when “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). A dispute is
genuine if the evidence is such that “a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material if it “might
affect the outcome of the suit under the governing law.” Id. In making this determination, “[t]he
evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his
favor.” Id. at 255. A party opposing a motion for summary judgment, however, may not simply
allege there are disputed issues of fact; rather, the party must support its assertions by citing to the
record or by showing the moving party cannot produce admissible evidence to support the fact. Fed.
R. Civ. P. 56(c). Thus, the inquiry for this Court is “whether the evidence presents a sufficient
3
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, 477 U.S. at 251-52.
When a defendant asserts an affirmative defense—such as the failure to exhaust
administrative remedies—in a motion for summary judgment, he or she “must demonstrate
that no disputed material fact exists regarding the affirmative defense asserted when the
evidence is viewed in the light most favorable to the plaintiff.” Kramer v. Wasatch Cnty.
Sheriff's Office, 743 F.3d 726, 746 (10th Cir. 2014) (internal quotation marks and citation
omitted). “If the defendant meets this initial burden, the plaintiff must then demonstrate
with specificity the existence of a disputed material fact,” Hutchinson v. Pfeil, 105 F.3d 562,
564 (10th Cir. 1997), or show that the remedies were unavailable to him as a result of the
actions of prison officials, Tuckel v. Grover, 660 F.3d 1249, 1254 (10th Cir. 2011). In the
absence of either showing, the defendant would be entitled to summary judgment on the
affirmative defense. See id.
Discussion
Defendants allege Plaintiff has failed to exhaust the administrative remedies for any
of his claims. Pursuant to the Prison Litigation Reform Act (PLRA), “[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. § 1997e(a). Inmates are
required to exhaust available administrative remedies, and suits filed before the exhaustion
4
requirement is met must be dismissed. Booth v. Churner, 532 U.S. 731, 740-41 (2001);
Yousef v. Reno, 254 F.3d 1214, 1216 n.1 (10th Cir. 2001). “An inmate who begins the
grievance process but does not complete it is barred from pursuing a § 1983 claim under
PLRA for failure to exhaust his administrative remedies.” Jernigan v. Stuchell, 304 F.3d
1030, 1032 (10th Cir. 2002) (citation omitted). Exhaustion is required for all inmates seeking
relief in federal district court, “even where the relief sought . . . cannot be granted by the
administrative process.” Woodford v. Ngo, 548 U.S. 81, 85 (2006). See also Booth, 532 U.S.
at 741. The PLRA’s exhaustion requirement is mandatory, and the courts are not authorized
to dispense with it. Beaudry v. Corr. Corp. of America, 331 F.3d 1164, 1167 n.5 (10th Cir.
2003). Courts will only excuse failure to exhaust if prison officials impede the prisoner’s
attempts. Little v. Jones, 607 F.3d 1245, 1250 (10th Cir. 2010).
According to the DOC Offender Grievance Process, OP-090124, an inmate first must
attempt to resolve his complaint informally by communicating with staff within three days
of the incident (Dkt. 26-23 at 8). If that is unsuccessful, he may submit a Request to Staff
(RTS) within seven calendar days of the incident, alleging only one issue per form. Id. at
8-10. If the offender does not receive a response to his RTS within 30 calendar days of
submission, he may submit a grievance to the reviewing authority (facility head), asserting
only the issue of the lack of response to the RTS. Id. at 10-12. If the grievance is of an
emergency or sensitive nature, it can be submitted directly to the reviewing authority without
informal resolution. Id. at 17-18.
5
If the complaint is not resolved after the response to the RTS, the offender then may
file a grievance. Id. at 10-12. Inmates must submit the grievance to the facility reviewing
authority or facility correctional health services administrator, whichever is appropriate. Id.
at 12. If the grievance also does not resolve the issue, the inmate may appeal to the
Administrative Review Authority (ARA) or the Medical ARA, whichever is appropriate.
Id. at 14-17. The administrative process is exhausted only after all of these steps have been
taken. Id. at 17.
Defendants allege that prior to commencing this lawsuit, Plaintiff failed to exhaust
his administrative remedies concerning the sexual assault investigation, his housing
assignment, and his subsequent transfer from MACC. The record shows that Plaintiff
submitted the following RTSs, grievances, and appeals regarding his allegations against
Defendants:
On January 23, 2021, Plaintiff submitted an RTS, complaining that he was placed in
lock-up after sexual misconduct allegations were made against him, but the alleged victim
was not placed in lock-up. (Dkt. 26-25 at 2-3). The response advised that the issue was
under investigation. Id. at 3.
On January 25, 2021, Plaintiff submitted an RTS asking for the DOC’s policy on
sexual harassment. Id. at 4. He was advised that the policy was attached to the RTS
response. Id.
On March 3, 2021, Plaintiff submitted an RTS complaining that there was false
6
information in his transfer packet. In the “action requested” section, Plaintiff complained
that no one conducted a PREA investigation about the allegations of sexual misconduct that
were lodged against him by another inmate. (Dkt. 26-26 at 2-4). In response, Plaintiff was
advised to make his request readable so the responding party knew what he was requesting.
Id. at 2.
On March 6, 2021, Plaintiff submitted Grievance No. 20-84 regarding this RTS and
asking that staff be disciplined. Id. at 4-5. On March 12, 2021, The grievance was returned
unanswered, because it was not legibly written and because it improperly requested
disciplinary action against prison staff. Id. at 6.
On March 26, 2021, Plaintiff submitted an appeal to the DOC’s ARA. (Dkt. 26-27
at 4-5). On April 6, 2021, the ARA recommended that the disposition be amended to add
that the RTS should have been submitted to a case manager or unit manager, rather than to
the warden’s assistant. Id. at pages 2-3. Plaintiff was given ten days to submit a proper RTS
to unit staff and was advised that he could submit a grievance if not satisfied with the RTS
response. Id. at 2-3. There is, however, no record of his doing so. (Dkt. 26-28 at 2)
(Affidavit of Mark Knutson, Manager of the DOC ARA).
On March 11, 2021, Plaintiff submitted an RTS to Defendant Case Manager Diana
Reese, complaining about the manner in which she wrote his transfer packet and asking her
to step down as a case manager. (Dkt. 26-29 at 5-6). In response, Plaintiff was advised to
address his concerns to Reese’s supervisor. Id. at 5. On March 15, 2021, Plaintiff submitted
7
Grievance No. 20-85 regarding his complaints about Reese’s handling of his transfer packet.
Id. at 3. In the grievance section for requested action, Plaintiff stated, “What action would
be right for what she did.” Id. The grievance was returned unanswered, because it
requested disciplinary action against staff. Id. at 2.
In addition, Mark Knutson, DOC ARA Manager, states by affidavit that a review of
all ARA records for Plaintiff indicated he has not exhausted his administrative remedies.
(Dkt. 26-28 at 2). The Court, therefore, finds Plaintiff did not exhaust the administrative
remedies for any of his claims.
Finally, the Court concludes that when viewed in the light most favorable to Plaintiff,
there is no genuine dispute as to any material fact concerning Plaintiff’s failure to exhaust
the administrative remedies for the claims in his complaint. Therefore, Defendants are
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
ACCORDINGLY, Defendants’ motion for summary judgment (Dkt. 28) is
GRANTED, and all remaining pending motions are DENIED as moot.
IT IS SO ORDERED this 12th day of September 2022.
8