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Sloan v. Diede

United States District Court, D. North Dakota

February 9, 2018

Robert D. Sloan, Jr., Plaintiff,
v.
Ricky Diede and Jesse Hacker, Defendants.

          REPORT AND RECOMMENDATION ON MOTION TO DISMISS COMPLAINT

          ALICE R. SENECHAL UNITED STATES MAGISTRATE JUDGE.

         Plaintiff 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).

         The 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. #20).

         Facts

         In the 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 grievance.” Id.

         The 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 resolution. Id.

         The 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. Id.

         In 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).

         The 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.

         On 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[1], 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 state employees.

(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.

         The 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.

         The 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 ...


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