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Fiore v. Drew

United States District Court, N.D. Iowa, Western Division

June 12, 2015

ROBERT JOSEPH FIORE, II, Plaintiff,
v.
DREW, WICK, STILLMAN, PHILLIPS, LARRY, GEORGE, DELANEY, WOODBURY COUNTY SHERIFF'S DEPARTMENT, Defendants.

MEMORANDUM OPINION AND ORDER REGARDING MAGISTRATE'S REPORT AND RECOMMENDATION CONCERNING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

MARK W. BENNETT, District Judge.

I. INTRODUCTION AND BACKGROUND

A. Procedural Background

On June 25, 2014, plaintiff Robert Joseph Fiore, II filed a pro se Complaint naming as defendants David Drew, the Sheriff of Woodbury County, Todd Wieck, a Major in the Woodbury County Sheriff's Department, Greg Stillman, a Major in the Woodbury County Sheriff's Office, Lynette Phillips, a Lieutenant and Jail Administrator of the Woodbury County Jail ("the Jail"), Larry and George, nurses at the Jail, Brigid Delany, a corrections officer at the Jail, and the Woodbury County Sheriff's Department (collectively, "defendants, " unless otherwise indicated).[1] Fiore claims that defendants violated his constitutional rights while he was incarcerated at the Jail.

This case was referred to United States Magistrate Judge Leonard T. Strand pursuant to 28 U.S.C. § 636(b)(1)(B). Defendants filed a motion for summary judgment in which they seek dismissal of all claims against them. In their motion, defendants argue that: (1) Fiore failed to exhaust all available administrative remedies as required by the Prisoner Litigation Reform Act, 42 U.S.C. § 1997e (PLRA), causing his claims to fail as a matter of law; (2) there is no genuine issue of material fact regarding Fiore's claims, (3) the individual defendants, in their personal capacities, are entitled to qualified immunity, and (4) the Woodbury County Sheriff's Department is not subject to liability under § 1983. Fiore filed a resistance. Defendants filed a timely reply.

Judge Strand issued a Report and Recommendation in which he recommends granting defendants' motion for summary judgment. Judge Strand found that Fiore failed to properly exhaust all available remedies for the allegations described in his complaint. Thus, Judge Strand recommends that Fiore's claims be dismissed for failure to exhaust available administrative remedies. Report and Recommendation at 8. Judge Strand further concludes that defendants have established, as a matter of law, that Fiore did not suffer from an objectively serious medical need. Thus, Judge Strand recommends that defendants' motion for summary judgment also be granted on that ground as to Fiore's claim of cruel and unusual punishment based on deprivation of medical care. Report and Recommendation at 10. Judge Strand also concludes that Fiore's allegations, even if true, do not support a cognizable § 1983 claim for sexual harassment. Therefore, Judge Strand recommends that defendants' motion for summary judgment on Fiore's sexual harassment claim be granted for this additional, alternative reason. Report and Recommendation at 11. Judge Strand further concludes that, even if the defendants failed to respond to Fiore's grievances, such a failure does not constitute a constitutionally protected federal right and, thus, no cognizable § 1983 claim exists. Accordingly, Judge Strand recommends that defendants' motion for summary judgment on Fiore's "failure to respond" claim be granted for this additional, alternative reason. Report and Recommendation at 12. Finally, Judge Strand concludes that each individual defendant has qualified immunity because Fiore failed to demonstrate the violation of a clearly-established constitutional right and the Woodbury County Sheriff's Department is not subject to liability under § 1983 because Fiore has not made a showing of a constitutional violation that would subject it to liability. Report and Recommendation at 12 n.4.

Fiore filed objections to Judge Strand's Report and Recommendation.[2] Fiore objects to Judge Strand's finding that he did not exhaust all available administrative remedies. Fiore also objects to Judge Strand's conclusion that he is not entitled to relief on his sexual harassment claim. Fiore further objects to Judge Strand's conclusion that the individual defendants are entitled to qualified immunity. Finally, Fiore objects to Judge Strand's Report and Recommendation based on a challenge to the credibility of defendants. Defendants filed a timely response to Fiore's objections.

B. Factual Background

In his Report and Recommendation, Judge Strand found the following facts were undisputed:

Fiore was incarcerated at the Jail from January 11, 2013, until April 12, 2013, when he was transferred to the Rowan County Detention Center in Salisbury, North Carolina, for pending criminal charges in that state. Fiore completed and signed an "Inmate Medical Screening Form" when he was booking into the Jail on January 11, 2013. Among other things, he indicated that he did not have diabetes, was not currently on any medication, had no injuries, did not need to see a mental health professional, had reviewed his answers carefully and had answered all questions correctly.
At all times material to this action an inmate grievance policy was in effect at the Jail. The policy consisted of Section 5.19(2) of the "Woodbury County Sheriff's Office-Jail Division Procedures and Guidelines, " which stated: "The [correctional] officer should advise the inmate [with a grievance of significance] that the grievance must be in written form and a full explanation be given." The policy also consisted of the "Woodbury County Jail Inmate Rule Book" (the "Rule Book"), which contained the inmate grievance procedure. Copies of the Rule Book were provided in each cell block. Fiore had access to the Rule Book while he was incarcerated at the Jail.
The Rule Book permitted inmates to submit informal and formal grievances. An informal grievance consisted of an inmate discussing the specific problem with a staff member. The Rule Book further provided that if the inmate believed appropriate actions were not taken to address the grievance, the inmate could submit a formal grievance to the Jail Administrator. Formal grievances were to be in writing and submitted within seven days of the occurrence that was the subject of the grievance. Written grievances were required to "[c]learly define the situation in question, and the facts upon which it is based; [s]pecify the wrongful act or situation, and describe the harm done;... and [s]pecify a requested remedy."
The Jail retains all letters and other correspondence, including grievances, from inmates to Jail personnel. Each item of correspondence from inmates to Jail personnel is known as a "kite." A copy of each kite is placed in the inmate's file maintained by the Jail. Fiore submitted kites while at the Jail. However, none of those kites included complaints regarding the Jail's alleged failure to provide medication for Fiore's alleged diabetes, various mental disorders or past injuries related to a motorcycle accident. Nor did any of the kites contain a request for an extra mattress. One kite, addressed to defendant Drew, mentioned that Fiore wanted to discuss "sexual harassment by a male nurse." However, that kite did not identify the nurse, provide factual details about the incident or state the date on which the incident occurred.
While Fiore alleges in his complaint that he wrote eleven letters to defendant Phillips, he admits that each letter requested only an extra mattress. Moreover, Fiore's complaint admits that during a meeting with Phillips, Fiore stated "All I needed was a [sic] extra matteress' [sic]...." Finally, Fiore's ...

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