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Gordon v. Bertsch

United States District Court, D. North Dakota

January 3, 2018

Michael Gordon, Plaintiff,
Leann K. Bertsch, Director, et al, Defendants.


          Charles S. Miller, Jr., United States District Court Magistrate Judge

         Before 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.

         I. BACKGROUND

         A. Plaintiff Gordon

         Gordon is a federal inmate subject to the custody of the Federal Bureau of Prisons (“FBOP”).[1] 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.

         B. The Defendants

         Defendants 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. 74).
8. Jody Kulman is the Assistant Food Service Director at NDSP. (Doc. No. 75).
9. Marc Schwehr[2] is a Captain at NDSP supervising the swing shift. (Doc. No. 76).
10. Cordell Stromme is the Chief of Security at NDSP. (Doc. No. 77).
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).

         C. This Action

         Gordon 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).

         The 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 following defendants:

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 problems; and
(d) inadequate treatment for allegedly very painful back problems.
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 Complaint.

(Doc. No. 33, p.2).[3] 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).


         Of the 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.

         Before 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.

         A. Additional background

         Gordon's 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).

         On 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 sexual harassment.

         At some 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).

         In 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. No. 67-4).

         Deputy 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.

         As 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.

         B. Unexhausted Retaliation Claims

         1. The PLRA Exhaustion Defense

         Congress 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).

         The 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.

         When 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.[4]

         Finally, 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.

         2. The NDSP grievance procedures

         The following are the NDSP's grievance procedures that were in effect in this case:


         1. A grievance is a written, individual complaint filed by an inmate concerning the matters that may personally affect the inmate, including:

a. Policies, rules, and procedures enforced within the institution;
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 institution;
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 education matters.).
2. Issues that are not grievable under ND DOCR grievance procedures include:
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 institution, including:
(1) The enactment of State or Federal laws, treaties, or administrative
(2) Court decisions
(3) Parole Board decisions
(4) Pardon Advisory Board recommendations and Governor's decisions.
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 Director.
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 grievance procedures.
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).

         3. Claims against Flanagan, Stromme, Wald, Theurer, Kulman, & Belisle

         Gordon 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

         These 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.

         Defendants 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).

         4.Claims against Schwehr and Helgeson

         Gordon 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 remedies.

         Gordon's 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).

         Gordon 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.

         Generally 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.

         In 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 ...

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