United States District Court, D. North Dakota
Robert D. Sloan, Jr., Plaintiff,
Ricky Diede and Jesse Hacker, Defendants.
REPORT AND RECOMMENDATION ON MOTION TO DISMISS
R. SENECHAL UNITED STATES MAGISTRATE JUDGE.
Robert D. Sloan Jr. filed a complaint alleging that he was
subjected to excessive force while in custody at James River
Correctional Center (JRCC). After conducting an initial
review pursuant to 28 U.S.C. § 1915A, the court allowed
Sloan to proceed with excessive force claims against two
correctional officers-Ricky Diede and Jesse Hacker-in their
personal capacities. (Doc. # 14). Sloan contends that Diede
and Hacker used excessive force in moving him to
“disciplinary detention, ” which resulted in
permanent injury to his knee and shoulder. (Doc. #5-1, p. 1;
Doc. #34, p. 1).
defendants move to dismiss the complaint, contending that
Sloan did not exhaust administrative remedies and that his
failure to do so is fatal to his excessive force claim. (Doc.
complaint, Sloan alleged that he completed three steps in
JRCC's grievance procedure and described the result of
that procedure as, “Medical grievances denied. Denied
all other accusations and accountability after injury.”
(Doc. #5, p. 2). In response to the motion to dismiss, Sloan
states, “Immediately following the release from
[Disciplinary Detention] he filed a step 1 grievance against
the staff for their physical abuse and the medical department
on the same medical grievance.” (Doc. #28, p. 1).
Further, he states, “He then filled out a step 1
grievance in the presence of case manager Samuelu Joseph at
that time plaintiff never heard back from that
applicable JRCC Inmate Handbook sets out a multistep
grievance procedure. First, an inmate must attempt informal
resolution of the grievance by submitting an Informal
Resolution/Step 1 Inmate Grievance form within fifteen days
of the incident that is the subject of the grievance. (Doc.
#21-7, p. 3). Attempts at informal resolution are documented
on the Informal Resolution/Step 1 Inmate Grievance form. The
handbook provides that, if a matter is not resolved
informally, the inmate is required to file the Step 1
Grievance form with his case manager by checking a box
indicating disagreement with the attempted informal
handbook states that JRCC staff will then conduct any
necessary investigation and respond to the Step 1 Grievance.
If an inmate disagrees with the Step 1 response, he may file
a Step 2 Grievance with the case manager within five days of
receiving the Step 1 response. Step 2 Grievances are reviewed
by the warden's office for determination of need for
further investigation. The warden then responds to Step 2
grievances. Id. at 4. An inmate not satisfied with
the warden's response at Step 2 may appeal to the
director of the Department of Corrections and Rehabilitation
within five days of receiving the warden's response.
support of their motion to dismiss, the defendants submitted
an affidavit of a JRCC administrative staff officer who
reviewed Sloan's JRCC records. (Doc. #21-1). The
affidavit states that, while at JRCC, Sloan submitted only
four documents that “may refer to force JRCC employees
allegedly used on Sloan.” Id. at 2. Each of
those four documents was filed with the court. (Doc. #21-3 to
-6). Additionally, the defendants submitted an affidavit of
Sloan's JRCC case manager, who states that he does not
recall Sloan raising any issue regarding Diede and Hacker
using excessive force. (Doc. #21-2).
four documents that the defendants filed include no Informal
Resolution/Step 1 Grievance forms. The first of the
documents, dated November 22, 2014, refers to the
incident but is a on a form requesting medical care rather
than on a grievance form. It states, “My knee is
hurting and swollen from the time I was detained on Saturday
the 21st of November. The officers had pushed me till I fell
forward and hurt my knee. I am having a lot of pain in my
wrist and my knee.” (Doc. #21-3) (capitalization
altered). The November 24, 2014 response to that medical
request indicates Sloan was given Ibuprofen. Id.
March 9, 2015, Sloan submitted the second document,
a Step 2 Grievance Form, stating:
I haven't had the medication that I've needed for
pain in my knee. I'm still having a lot of pain and
issues with my knee, since my injury that occurred on
November 2, 2014. It has been almost 3 weeks since my
grievance. And since the first week of January 2015, I have
been absent of medication needed from an injury caused by
(Doc. #21-4) (spelling, punctuation, and capitalization
altered). JRCC's response refers to the informal
resolution and Step 1 process not having been followed prior
to submitting the Step 2 Grievance form and also refers to
Sloan having been discharged on March 14, 2015. Id.
third of the four documents is an Informal
Resolution/Step 1 Grievance Form that Sloan submitted on
December 30, 2016, while he was confined at the North Dakota
State Penitentiary. It alleges that funds were withdrawn from
his account to cover a medical co-pay for a knee
“injury that was caused by corrections officers”
in Jamestown in 2014-2015. (Doc. #21-5). The staff response
noted that JRCC's grievance policy did not cover medical
co-pay decisions but that JRCC had a separate process to
appeal those decisions. Id.
fourth document, dated January 4, 2017, is an Inmate
Request form relating to a medical co-pay for a follow-up for
his 2014-2015 knee injury. It refers to the knee injury
having resulted from the defendants' assault, negligence,
and abuse. (Doc. #21-6). The response states that Sloan's
fifteen-day period to ...