United States District Court, D. North Dakota
REPORT AND RECOMMENDATION RE DEFENDANTS' MOTION
FOR SUMMARY JUDGMENT
Charles S. Miller, Jr., United States District Court
the court is defendants' Motion for Summary Judgment.
(Doc. No. 64). Plaintiff Michael Gordon
(“Gordon”) opposes the motion. (Doc. No. 88). The
undersigned recommends the court grant the motion and dismiss
the claims against the defendants, some with prejudice and
others without prejudice, for the reasons expressed below.
is a federal inmate subject to the custody of the Federal
Bureau of Prisons (“FBOP”). Gordon was placed at the
North Dakota State Penitentiary (“NDSP”) by the
FBOP on June 10, 2014, through a cooperative agreement with
the North Dakota Department of Corrections and Rehabilitation
(“DOCR”), which operates the NDSP as well as
North Dakota's other correctional facilities. Less than
ten months later, Gordon was removed from the NDSP by the
FBOP on March 28, 2015, at the NDSP's insistence.
at all relevant times were employed by the NDSP. The
following is a brief description of each defendant:
1. Dr. John Hagan is a physician serving the inmate
population at NDSP. (Doc. No. 69).
2. Jessica Wilkens is the Director of Nursing at NDSP, in
which capacity she oversees the daily operations of the
medical department. (Doc. No. 68).
3. Paul Belisle is a Shift Captain at NDSP. (Doc. No. 70).
4. Todd Flanagan is a Captain in Investigation at NDSP, where
he handles reports of serious incidents that happen at NDSP.
(Doc. No. 71).
5. Steve Foster is the Deputy Warden of Auxiliary Services at
NDSP. (Doc. No. 72).
6. Steve Heit is a Case Manager at NDSP. (Doc. No. 73).
7. Justin Helgeson is also a Case Manager at NDSP. (Doc. No.
8. Jody Kulman is the Assistant Food Service Director at
NDSP. (Doc. No. 75).
9. Marc Schwehr is a Captain at NDSP supervising the swing
shift. (Doc. No. 76).
10. Cordell Stromme is the Chief of Security at NDSP. (Doc.
11. Craig Theurer is a Security Equipment Officer at NDSP.
(Doc. No. 78).
12. Corey Wald is a Case Manager at NDSP. (Doc. No. 79).
initiated this action on March 9, 2015, shortly before he was
removed from the NDSP. (Doc. No. 1). Before his initial
complaint could be screened pursuant to 28 U.S.C. §
1915A, he filed an amended complaint. In his amended
complaint, Gordon sought to sue more than twenty-five named
and unnamed defendants on a variety of claims. (Doc. No. 12).
undersigned prepared a report and recommendation for the
screening of the amended complaint as required by §
1915A. (Doc. No. 28). Before the court could act on that
report and recommendation, Gordon filed a second amended
complaint in which he made some modifications to address
certain problems identified in the initial report and
recommendation. (Doc. No. 30). Gordon's second amended
complaint was subjected to an additional review along with
the issuance of a supplemental report and recommendation,
which this court adopted. (Doc. Nos. 32-33). The result of
this screening process was that Gordon was limited to
proceeding on the following claims and only as to the
1. Gordon will be allowed to proceed as to defendants Dr.
John Hagan and Jessica Wilkens in their individual capacities
only with respect to the following Eighth Amendment
deliberate indifference claims:
(a) failure to provide him a colonoscopy in light of his risk
for colon cancer;
(b) inadequate treatment for Hepatitis C;
(c) inadequate treatment for allegedly very painful shoulder
(d) inadequate treatment for allegedly very painful back
2. Gordon will be permitted to proceed against defendants
Todd Flanagan, Mark Schwer, Corky Stromme, Cory Wald, Steve
Heit, Craig Thuerer, Justin Helgeson, Jamie Pederson, Jody
Kulman, Paul Belisle, and Steve Forster, all in their
individual capacities only, with respect to the claims of
retaliation in paragraphs 65-78 of the Second Amended
(Doc. No. 33, p.2). The reasons for why Gordon was limited to
proceeding against the defendants only in their individual
capacities were: (1) the State's Eleventh Amendment
immunity foreclosed any claim for damages against the
defendants in their official capacities; and (2) the
BOP's transfer of Gordon to another state's facility
mooted any official capacity claims for non-monetary relief.
(Doc. Nos. 28, 32, & 33).
THE FIRST AMENDMENT RETALIATION CLAIMS
ten defendants who are being sued for retaliation, eight
argue that Gordon did not properly exhaust their available
prison remedies as to them. And, while they request dismissal
with prejudice, this is not permitted for the reasons stated
later. The other two defendants, who do not contend there was
a lack of exhaustion of the claims against them, seek
dismissal with prejudice on the merits.
turning to the retaliation claims, some additional background
is in order. Unless otherwise indicated, the following facts
are either uncontested or have not been sufficiently
controverted by Gordon.
short residency at NDSP was eventful. After completing
orientation upon arriving at the NDSP, Gordon was released
into the general population in the East Unit. A short time
later, correctional officers located numerous items of
contraband in his cell, including homemade alcohol, pills, a
razor blade, screws, rope, etc. Although Gordon's
cellmate initially took responsibility for the contraband, he
recanted after informing NDSP personnel he confessed because
Gordon threatened to stab him. (Doc. No. 72). Gordon was
found guilty of possession of contraband and placed in
administrative segregation (“AS”). (Doc. No. 72).
Following the incident, Gordon's roommate was transferred
out of the NDSP, as he “was terrified Gordon would kill
him.” (Doc. No. 72).
September 27, 2014, approximately three weeks after being
released from his first stay in AS, Gordon was involved in a
physical altercation with another inmate following an
exchange of sexual comments. (Doc. No. 72). A subsequent
investigation, and a resulting incident report authored by
defendant Flanagan, found that sufficient evidence
substantiated a sexual harassment claim against Gordon.
Following an October 7, 2014, disciplinary hearing presided
over by defendant Heit, Gordon was found guilty. (Doc. No.
74). Heit issued Gordon a written warning regarding the
point following this altercation, Gordon was again returned
to AS, his third such stay in as many months. (Doc. No. 76).
On October 2, 2014, defendant Schwehr wrote an AS referral
requesting Gordon remain in AS because of his poor conduct.
(Doc. No. 76). Pursuant to that referral, defendant Wald
prepared a memorandum informing Gordon he would be placed in
AS for his conduct. (Doc. No. 79). The AS Committee,
consisting of defendants Wald, Stromme, and an individual not
a party to this action, recommended Gordon remain in AS.
(Doc. No. 77). The Warden ultimately declined to follow this
recommendation and Gordon was released to the general
population. (Doc. No. 76). Following his return, Gordon
received a job in the NDSP kitchen as a dishwasher. (Doc. No.
75). After Gordon began his employment, multiple large
batches of homemade alcohol were found in the kitchen,
specifically in the dishwashing area. (Doc. No. 75).
Defendant Kulman prepared an enhanced incident report
regarding the matter. (Doc. No. 75). Defendant Belisle wrote
a secure housing placement memo advising Gordon he was to be
placed on detention status pending the outcome of an
investigation into the incident. (Doc. No. 70). This
investigation implicated Gordon as the jailhouse brew master.
(Doc. No. 67-6). Gordon was found guilty of brewing the
alcohol, (Doc. No. 67-6), and once again returned to AS.
(Doc. No. 72). No more alcohol was found once Gordon was
removed from NDSP kitchen. (Doc. No. 72).
addition to all of this, Gordon also found time to conduct
some lawyering for fellow inmates. On January 26, 2015, NDSP
staff found Gordon in possession of legal materials belonging
to another inmate, which NDSP policy disallowed. (Doc. No.
67-4). Gordon had also logged onto the prison computer
network using that inmate's credentials. (Doc. No. 67-4).
According to prison officials, Gordon proceeded to lie to
defendant Theurer when confronted. Following a hearing,
defendant Helgeson, Gordon's case manager at the time,
found Gordon guilty of being in possession of legal paperwork
belonging to another inmate and lying to prison staff. (Doc.
Warden Foster states it was because of these incidents that
he warned Gordon he would be returned to the FBOP if his
behavior did not improve. Foster states that later, when he
concluded Gordon's behavior had not improved, he
recommended to the Warden that Gordon be returned to the
FBOP. According to the defendants, the NDSP Warden (who is
not named in this action) made the final decision to end
Gordon's eventful stay and it was because Gordon could
not he could not acclimate to the general population. (Doc.
No. 72). This was several weeks after the filing of this
action but before the court's screening and court ordered
service on the defendants.
discussed later, Gordon claims that a number of the foregoing
actions by the defendants were taken in retaliation on
account of Gordon having filed previous grievances against
them. Further, Gordon claims that his removal from the NDSP
was in retaliation for the various grievances he had brought
and his threats to file a civil action.
Unexhausted Retaliation Claims
The PLRA Exhaustion Defense
enacted the Prison Litigation Reform Act of 1995
(“PLRA”) to address the problems created by the
large number of federal prisoner lawsuits. Among other
reforms, the PLRA requires that prisoners exhaust prison
grievance procedures before filing suit and an early
screening of prisoner complaints by the court at the time of
filing. 42 U.S.C. § 1997e(a); 28 U.S.C. § 1915A.
See Jones v. Bock, 549 U.S. 199, 216-17 (2007)
(“Jones”). The PLRA's exhaustion requirement
reads as follows:
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).
Supreme Court has concluded that: (1) § 1997e(a)
requires “proper exhaustion, ” i.e.,
prisoners must complete the administrative process in
accordance with the procedural rules set forth by the prison
before suing, Woodford v. Ngo, 548 U.S. 81, 88
(2006) (“Ngo ”); (2) prisoners must exhaust
available administrative remedies even if they do not provide
for the exact relief the prisoners want to sue for, Booth
v. Churner, 532 U.S. 731, 121 (2001); and (3) failure to
exhaust is an affirmative defense that must be pled and
proved by the defendant, Jones, 549 U.S. at 216-17.
the exhaustion defense has been properly raised, the Eighth
Circuit has stated that the district court is
“obligated” to determine whether or not the
administrative remedies have been exhausted. Chelette v.
Harris, 229 F.3d 684, 688 (8th Cir. 2000). And, if they
have not, the court is to dismiss the unexhausted claims
without prejudice. See Porter v. Sturm, 781 F.3d
448, 452-53 (8th Cir. 2007) (dismissal for failure to exhaust
as required by the PLRA must be without prejudice);
Barbee v. Corr. Medical Services, 394 Fed.Appx. 337,
338 (8th Cir. 2010) (unpublished per curiam) (concluding the
district court erred in entering summary judgment of
dismissal with prejudice on the merits for three defendants
where it was clear there had been a failure to exhaust and
remanding for dismissal without prejudice as to those
defendants). Further, as this court was instructed in
Benjamin v. Ward County, 632 Fed.Appx. 301, 302 (8th
Cir. 2016) vacating and remanding 93 F.Supp.3d 1106
(D.N.D. 2015), the court is not permitted to bypass an
exhaustion defense once it has been raised and resolve the
case on the merits, even when that is easier.
this statutory framework necessitates examination of the
particular policies in place at the particular institution to
determine whether an inmate exhausted the administrative
process prior to commencing litigation since it is these
policies that control. See, e.g.,
Jones, 549 U.S. at 218.
The NDSP grievance procedures
following are the NDSP's grievance procedures that were
in effect in this case:
grievance is a written, individual complaint filed by an
inmate concerning the matters that may personally affect the
a. Policies, rules, and procedures enforced within the
b. Reprisals or retaliatory actions against the inmate for
filing a grievance under the inmate grievance procedure, or
for participation in an inmate grievance proceeding;
c. A lack of a policy, regulation, rule or procedure that
affects the living conditions of an inmate within the
d. Actions of inmates or staff that directly affect the
inmate and are not covered by part 2 (c) below.
e. Concerns with personal needs and services (i.e., for
example, religious, recreational, medical, treatment, or
2. Issues that are not grievable under ND DOCR grievance
a. Any process with an established, formalized appeal or
review process, including:
(1) Disciplinary proceedings
(2) Classification proceedings
(3) Administrative Segregation placement
(4) Medical Payment Committee or co-pay decisions b. Actions
of persons or entities outside the jurisdiction of the
(1) The enactment of State or Federal laws, treaties, or
(2) Court decisions
(3) Parole Board decisions
(4) Pardon Advisory Board recommendations and Governor's
3. Before you may file a Step 1 Grievance, you are required
to attempt to resolve your complaint informally. Prior to
informal resolution, you must clearly and legibly document
your complaint, one issue only, in the space provided on the
Informal Resolution/Step 1 Inmate Grievance form. You may
obtain assistance from other inmates or staff to complete the
form, but you must sign the form on the signature line and
record the date. The informal resolution/Step 1 Inmate
Grievance request must be submitted within 15 days of the
alleged incident. Informal resolution means discussing your
complaint with the staff member who you have the complaint
with, discussing it with your case worker or case manager, or
with the department head, and coming to a resolution. This
step must be documented on the Informal Resolution/Step 1
Inmate Grievance form and signed by you and the staff
attempting the informal resolution.
4. If you are not satisfied with the results of your attempt
at informal resolution, you may file a Step 1 grievance with
your case manager by checking the box "disagree”
with the signature of the attempted informal resolution. You
must sign the for by the informal resolution section and
check the box appropriately if you wish to file the step one
grievance. Your case manager or designee will discuss the
grievance with you, conduct an investigation if necessary and
make a recommendation as to the formal resolution of the
grievance. The staff assigned to the step one grievance will
discuss their recommended formal resolution with you. If you
agree with their recommendation you are required to sign the
signature line under the step one grievance area, date and
check the box that you agree. If you disagree with the step
one formal resolution recommendation you can start the step
two grievance by checking the box "disagree",
signing and document the date." You must sign, date and
check the "disagree" box in order to proceed to a
step two comment of the step one grievance. Only one issue
may be addressed per grievance form and you must write it
legibly in the space provided, you are not allowed to attach
additional pages. If you exceed the space provided your
grievance will be returned unanswered and you will have to
resubmit your grievance following the correct format.
5. Step 2 Grievance: You may, within 5 days of the receipt of
the Step 1 response, elect to file a Step 2 grievance with
your case manager. No additional facts, variations of the
original issue stated in the original grievance or new issues
may be raised. The case manager will forward the completed
Step 2 form to the Warden's office. The Warden will
determine whether additional investigation is required. The
Warden may conduct the investigation or appoint a staff
member to conduct it and report findings. You will receive
the Warden's decision within 10 working days of receipt
by the Warden's office. Some grievances may take
additional time to investigate and respond.
6. Grievance Appeal: If you are dissatisfied with the
Warden's response, you may file an appeal to the
7. If your grievance is of a sensitive nature and you fear
possible adverse effects within the institution, you may file
your grievance directly with the Director of Corrections and
Rehabilitation through the mail. You must clearly explain
your issue and why you fear adverse effects if you do not
follow the grievance procedure. NOTE: If the DOCR Director
determines the grievance is not of a sensitive nature, the
grievance will be returned to you to file through the usual
8. If the Warden or the DOCR Director determines you are
abusing the grievance procedure through the submission of
grievances that are frivolous, harassing, repetitive, or
include false or defamatory statements about DOCR employees,
officers, and officials, the Warden or the DOCR Director; may
place restrictions on your ability to file grievances or
decline to respond to the grievance.
(Doc. No. 67-9). This policy provides first for informal
resolution of the grievance followed by a Step 1 grievance, a
Step 2 grievance, and then an appeal to the Director of DOCR.
To fully exhaust these administrative remedies, Gordon was
required to complete each of the steps as to each of his
claims. An exception is if Gordon was prevented by prison
officials from doing so, either directly or by their
inaction, including failure to respond when the procedure
contemplates a response before the next step can be taken.
See, e.g., Porter v. Sturm, 781
F.3d at 452 (discussing Eighth Circuit precedent).
Claims against Flanagan, Stromme, Wald, Theurer, Kulman,
alleges in his Second Amended Complain that the following
defendants retaliated against him by engaging in the
following described conduct on account of Gordon having
previously filed grievances against them:
Alleged retaliatory act
False misbehavior report on 9/27/14
False AS referral on 10/3/14
False AS referral on 10/3/14
False misbehavior report on 2/27/15
False misbehavior report on 2/27/15
False misbehavior report on 2/17/15
defendants argue that Gordon failed to exhaust the NDSP's
grievance process with respect to the above claimed acts of
retaliation, contending Gordon never filed even a Step 1
grievance for any of them. In response, Gordon does not
contend that his claims of retaliation in each instance were
not grievable. Rather, he argues that he delivered one or
more Step 1 grievances to his case manager covering each of
the claimed acts of retaliation but never received responses.
If that was true and he did not receive responses, then,
arguably, Gordon was not required to proceed further and his
claim(s) would be deemed fully exhausted since, under the
NDSP's grievance procedure, it appears that a response is
a condition precedent to moving to the next step.
have submitted an affidavit from a DOCR administrative
assistant stating that she has reviewed all of the NDSP's
records for any grievances (Step 1 or otherwise) that may
have been filed by Gordon with respect to the listed
defendants alleging the above acts of retaliation and found
none. (Doc. No. 67). In addition, defendants have filed with
the court copies of the records kept at the NDSP related to
grievances filed by Gordon. This “administrative
record” is just over 200 pages in length and includes
copies of numerous grievances filed by Gordon (many of which
are not at issue in this case), staff responses, NDSP Warden
decisions, appeals to the DOCR, and decisions by the DOCR
Director. (Doc. No. 67-14). Absent is any record of Gordon
having filed a Step 1 grievance for any of the above listed
defendants as to the alleged acts of retaliation. Finally,
each of the above named defendants have filed affidavits
stating that they do not recall any grievance being filed by
Gordon against them related to the above listed claims of
retaliation. (Doc. Nos. 70, 71, 75, 77-79).
against Schwehr and Helgeson
also alleges that defendant Schwehr retaliated against him on
two occasions for previous grievances that he had brought
against Schwehr. Schwehr argues in response that, while
Gordon commenced the grievance process with respect to these
two retaliation claims, he never completed either one and,
for that reason, he failed to exhaust his administrative
first claim of retaliation is that Schwehr filed a false AS
referral on October 3, 2014. The administrative record filed
by the defendants reflects that Gordon did file a Step 1
grievance on October 18, 2014 with respect to this claim, but
it was dismissed on account of Gordon's failing to have
first attempted to resolve the grievance informally per the
grievance policy. (Doc. Nos. 67-14, pp. 1-2). Then, instead
of attempting to cure the purported deficiency, Gordon filed
a Step 2 grievance on November 21, 2014, which was again
denied on account of his failure to follow proper procedures
initially. (Id. at p. 36). While Gordon claims he
then tendered to his case manager an appeal to the DOCR
Director, which is the next step in the administrative
process after the Warden (or someone acting on his behalf)
denies the Step 2 grievance, the administrative record filed
by the defendants reflects no such appeal. Further, Gordon
does not claim, nor does the administrative record reflect,
that he attempted to cure the claimed deficiencies in his
grievances as set forth in the responses to his Step 1 and
the Step 2 grievances. (Doc. No. 67-14).
also alleges that Schwehr retaliated against him by
submitting a false misbehavior report on January 28, 2015.
With respect to this claim, Gordon filed a Step 1 grievance
on January 30, 2015, to which the response was that he could
not grieve an “incident” report and that the
report had yet to be heard. (Doc. No. 67-14, p. 77). It
appears this response was incorrect. While under the
NDSP's grievance policy a grievance cannot be taken
challenging the outcome of a disciplinary hearing (since that
has its own procedures for review), a grievance can be lodged
for any alleged act of retaliation purportedly taken on
account of the prisoner having previously filed a grievance
against the person engaging in the alleged retaliatory
conduct. If the evidence here was that Gordon had stopped at
that point in reliance upon what he was told, then Schwehr,
arguably, would have no defense based on a failure to exhaust
this claim. See, e.g., Brown v.
Croak, 312 F.3d 109, 110-13 (3d Cir. 2010). But, in this
case, Gordon claims he did provide his case manager with a
Step 2 grievance, which reflects he was not misled. But
again, the administrative record filed here contains no Step
2 grievance and Gordon has not provided any other evidence
(such as a copy of the Step 2 grievance) that supports his
claim that he provided one to his case manager.
speaking, if there are fact issues that need to be decided in
order to resolve a failure-to-exhaust defense, the court must
conduct further proceedings, including possibly holding an
evidentiary hearing. See, e.g., Small
v. Camden County, 728 F.3d 265, 269-71 (3d Cir. 2013);
Pavey v. Conley, 544 F.3d 739, 740-42 (7th Cir.
2008); Chelette v. Harris, 229 F.3d 684, 688
(concluding that the procedures outlined in Osborn v.
United States, 918 F.2d 724, 729-30 (8th Cir. 1990) for
resolving disputed facts over subject matter jurisdiction
apply to resolution of failure-to-exhaust issues). In this
case, however, there is no need for further proceedings. As
noted above, Gordon claims he gave his case manager the
filings required for the completion of the administrative
exhaustion of his retaliation claims, but the only evidence
of this are his own self-serving statements. In this case,
this is not enough given: (1) the evidence marshaled by the
defendants that the claimed filings were never made; and (2)
Gordon's failure to proffer any contrary evidence.
conclusion, defendants Flanagan, Stromme, Wald, Thuerer,
Kulman, Belisle, Schwehr, and Helgeson are all entitled to
dismissal of the claims brought against them based upon
Gordon's failure to exhaust his administrative remedies
as required by 42 U.S.C. § 1997e(a). The dismissal ...