Anderson v Hernandez, et al.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
JEFFERY L. ANDERSON, 	)
)
Plaintiff, 	)
v. 	) 	Case No. 1:23-cv-00201-SNLJ
)
JOSEPH T. HERNANDEZ, et al., 	)
)
Defendants. 	)
MEMORANDUM AND ORDER
Plaintiff Jeffery Anderson, proceeding pro se, filed this civil rights action pursuant
to 42 U.S.C. § 1983 claiming that defendants Wes Drury and Amy Johnson exhibited
deliberate indifference to his serious medical needs while he was a pretrial detainee at the
Scott County Jail in Benton, Missouri. [Doc. 1]. This matter is now before the Court on
defendants’ motion for summary judgment on the affirmative defenses of failure to
exhaust administrative remedies and qualified immunity. [Doc. 57]. The motion is fully
briefed. For the reasons set forth below, the motion is denied on the affirmative defense
of failure to exhaust administrative remedies, and a ruling on the affirmative defense of
qualified immunity is deferred until the exhaustion issue is resolved.
I. LEGAL STANDARD
Under Federal Rule of Civil Procedure 56(a), summary judgment shall be granted
“if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” F ED .R.CIV .P. 56(a). Material facts
are those that “might affect the outcome of the suit under the governing law,” and there is
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a genuine dispute where “a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When considering a
motion for summary judgment, the court must view “the evidence and the inferences
which reasonably may be drawn from the evidence in the light most favorable to the
nonmoving party.” Allard v. Baldwin, 779 F.3d 768, 771 (8th Cir. 2015).
The moving party bears the initial burden of “informing the district court of the
basis for its motion, and identifying those portions of the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any, which it
believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp v.
Catrett, 477 U.S. 317, 323 (1986) (cleaned up). The burden then shifts to the nonmoving
party to “present specific evidence, beyond mere denials or allegations that raise a
genuine issue for trial.” Farver v. McCarthy, 931 F.3d 808, 811 (8th Cir. 2019) (cleaned
up). In asserting a factual dispute, the nonmoving party “must support the assertion by:
(A) citing to particular parts of materials in the record . . . ; or (B) showing that the
materials cited do not establish the absence or presence of a genuine dispute, or that an
adverse party cannot produce admissible evidence to support the fact.” FED .R.CIV .P.
56(c)(1). Similarly, Local Rule 4.01 requires:
Every memorandum in opposition must be accompanied by a document titled
Response to Statement of Material Facts, which must be separately filed using the
filing event “Response to Statement of Material Facts.” The Response must set
forth each relevant fact as to which the party contends a genuine issue exists. The
facts in dispute shall be set forth with specific citation(s) to the record, where
available, upon which the opposing party relies. The opposing party also shall
note for all disputed facts the paragraph number from the moving party’s
Statement of Uncontroverted Material Facts. All matters set forth in the moving
party’s Statement of Uncontroverted Material Facts shall be deemed admitted for
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purposes of summary judgment unless specifically controverted by the opposing
party.
II. FACTUAL AND PROCEDURAL BACKGROUND
Following screening of plaintiff’s complaint under 28 U.S.C. § 1915A, he is
proceeding on a claim that defendants were deliberately indifferent to his serious medical
needs by delaying the administration of his psychotropic medication from February 4 to
February 19, 2019. [Docs. 1, 9]. After completing discovery, defendants filed the instant
motion, arguing that plaintiff failed to exhaust available administrative remedies before
filing this lawsuit, rendering his claims barred under the Prison Litigation Reform Act, 42
U.S.C. § 1997e(a). [Doc. 57]. In response, plaintiff claims the grievance process was
unavailable to him because he was not receiving his psychotropic medication and was
therefore mentally unstable. [Doc. 61].
Defendants further contend that they are entitled to qualified immunity on
plaintiff’s deliberate indifference claim because (1) plaintiff cannot establish that they
were involved in the alleged delay in administering his psychotropic medication, and (2)
plaintiff has not produced verifiable medical evidence showing a detrimental effect
resulting from the purported delay. [Docs. 57, 58]. In response, plaintiff states that he
asked for help with his psychiatric issues, but the “people responsible” failed to ensure
that he received his medication. [Doc. 61].
Defendants filed a statement of facts that complies with Rule 56 and Local Rule
4.01. [Doc. 59]. Plaintiff, however, did not respond to defendants’ statement of facts.
[Doc. 61]. Plaintiff’s status as a pro se litigant does not excuse him from complying with
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the Federal Rules of Civil Procedure and this Court’s local rules. Beck v. Skon, 253 F.3d
330, 333 (8th Cir. 2001). 	The Court has carefully examined defendants’ evidence1 and
confirmed that their statements of fact have evidentiary support. Because plaintiff failed
to respond to defendants’ statement of facts, the facts are deemed admitted.
The Scott County Sheriff’s Office had a Jail Policy and Procedure Manual that set
forth a mandatory grievance procedure, which was in effect in February 2019.
[Docs. 59 at ¶¶ 1, 2; 59-2; 59-3].
In February 2019, an inmate could submit a grievance either through a kiosk or by
filling out a complaint form. [Docs. 59 at ¶ 3; 59-3].
Upon request, an inmate could access a kiosk to submit a grievance. [Docs. 59 at
¶ 4; 59-3].
Plaintiff had “no idea” regarding whether Scott County had a grievance procedure
in that timeframe. [Doc. 59 at ¶ 5].
Plaintiff did not know he could submit a grievance on a kiosk. [Id. at ¶ 6].
Plaintiff did not file a grievance. [Id. at ¶¶ 7, 8].
Plaintiff did not have personal knowledge regarding what Amy Johnson or Sheriff
Wes Drury did or did not do with respect to the alleged delay of medication. [Id.
at ¶ 9].
Plaintiff received the disputed medications on or after February 19, 2019. [Id. at
¶ 10].
Plaintiff did not see any doctor who could diagnose him or otherwise give an
opinion with respect to whether there was any detrimental effect to his health
based on his complaint that he did not receive the medications. [Id. at ¶ 11].
1 Defendants supported their statement of uncontroverted material facts with excerpts from
plaintiff’s deposition [Ex. A at Doc. 59-1], a copy of the Jail Policy and Procedure Manual [Ex.
B at Doc. 59-2], affidavit testimony of defendant Drury [Ex. C at Doc. 59-3], and a medication
administration record [Ex. D at Doc. 59-4].
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III. DISCUSSION
A. Exhaustion of Administrative Remedies
The Court first considers defendants’ argument that they are entitled to summary
judgment because plaintiff failed to exhaust administrative remedies prior to filing this
lawsuit. The Prison Litigation Reform Act (PLRA) requires prisoners, including pretrial
detainees, to exhaust all available administrative remedies before filing a federal lawsuit
regarding prison conditions. 42 U.S.C. § 1997e(a); Porter v. Nussle, 534 U.S. 516, 524
(2002). Failure to exhaust is an affirmative defense; consequently, the burden of proof
rests with the defendant. Porter v. Sturm, 781 F.3d 448, 451 (8th Cir. 2015).
To properly exhaust available administrative remedies, a prisoner must “complete
the administrative review process in accordance with the applicable procedural rules,
including deadlines.” Woodford v. Ngo, 548 U.S. 81, 88 (2006). “[I]t is the prison’s
requirements, and not the PLRA, that define the boundaries of proper exhaustion.” Jones
v. Bock, 549 U.S. 199, 218 (2007). If a court determines that a prisoner did not exhaust
administrative remedies before filing, a dismissal without prejudice is mandatory.
Porter, 781 F.3d at 452; see also Ross v. Blake, 578 U.S. 632, 639 (2016) (“a court may
not excuse a failure to exhaust” under the PLRA).
“The exhaustion requirement hinges on the availability of administrative
remedies.” Ross, 578 U.S. at 633 (cleaned up). As a result, a court must determine what
administrative remedies were available. Smith v. Andrews, 75 F.4th 805, 809 (8th Cir.
2023). “The availability of a remedy, according to the Supreme Court, is about more
than just whether an administrative procedure is on the books.” Townsend v. Murphy,
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898 F.3d 780, 783 (8th Cir. 2018) (cleaned up). Whether a remedy is available is a fact-
specific inquiry that generally considers, among other factors, “whether [the] procedures
[were] knowable by an ordinary prisoner in [plaintiff’s] situation” or whether the “system
[was] so confusing that no such inmate could make use of it.”2 Ross, 578 U.S. at 648.
The Supreme Court has recognized at least three circumstances where an
administrative remedy is not capable of use and, therefore, unavailable: (1) where “it
operates as a simple dead end—with officers unable or consistently unwilling to provide
any relief to aggrieved inmates;” (2) if the procedure is “so opaque that it becomes,
practically speaking, incapable of use,” i.e. “no ordinary prisoner can discern or navigate
it;” and (3) when prison administrators thwart inmates from taking advantage of a
grievance process through machination, misrepresentation, or intimidation.” Id. at 643-
44. Additionally, the Eighth Circuit has held that “an administrative remedy is
unavailable to an inmate under the PLRA when (1) the inmate was unable to file a timely
grievance due to physical or mental incapacity; and (2) the administrative system’s rules
do not accommodate the condition by allowing a late filing.” Perry v. Precythe, 121
F.4th 711, 714 (8th Cir. 2024).
The undisputed facts establish that the jail had a formal grievance process that
required inmates to submit grievances either through a kiosk or by completing a
complaint form. It is also undisputed that plaintiff did not file a grievance regarding the
2 When a prisoner is aware that a grievance procedure exists, the prisoner’s subjective beliefs or
lack of awareness of the institutional process are not factors in determining whether
administrative remedies are available. Lyon v. Vande Krol, 305 F.3d 806, 809 (8th Cir. 2002).
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claim in this lawsuit. Therefore, unless the grievance process was unavailable, plaintiff’s
claim is barred by the PLRA.
Plaintiff testified in his deposition that he did not know the jail had a grievance
procedure. [Doc. 59-1, Ex. A at 68:25-70:17]. He also testified that, even if he had been
aware of the procedure, he would not have been able to file a grievance due to his mental
instability. [Id. at 69:17-22]. This testimony is sufficient to create a genuine issue of
material fact about the availability of the grievance process. As a result, defendants are
not entitled to summary judgment based on failure to exhaust administrative remedies.
B. Qualified Immunity
Defendants argue they are entitled to summary judgment on the affirmative
defense of qualified immunity. The availability of qualified immunity depends on the
answer to two questions: (1) did the defendant violate a constitutional right, and (2) was
the right clearly established at the time of the challenged conduct. Dean v. Bearden, 79
F.4th 986, 988 (8th Cir. 2023). “Unless both of these questions are answered
affirmatively, [a defendant] is entitled to qualified immunity.” Burns v. Cole, 18 F.4th
1003, 1007 (8th Cir. 2021).
1. 42 U.S.C. § 1983
Defendants contend that plaintiff cannot establish that they were involved in the
alleged delay of administration of his psychotropic medication. A claim under § 1983
requires proof that each defendant “personally violated the plaintiff’s constitutional
rights.” Jackson v. Nixon, 747 F.3d 537, 543 (8th Cir. 2014); see also Madewell v.
Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990) (“liability under § 1983 requires a causal
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link to, and direct responsibility for, the deprivation of rights”). “[A] general
responsibility for supervising the operations of a prison [or jail] is insufficient to establish
the personal involvement required to support liability” under § 1983. Keeper v. King,
130 F.3d 1309, 1314 (8th Cir. 1997). Instead, plaintiff must show that “each
Government-official defendant, through the official’s own individual actions, has
violated the Constitution.” Jones v. City of St. Louis, 104 F.4th 1043, 1050 (8th Cir.
2024).
“In the section 1983 context, supervisor liability is limited.” Boyd v. Knox, 47
F.3d 966, 968 (8th Cir. 1995). “[A] supervisor incurs liability for [a constitutional
violation] when the supervisor is personally involved in the violation or when the
supervisor’s corrective inaction constitutes deliberate indifference toward the violation.”
Boyd, 47 F.3d at 968. “The supervisor must know about the conduct and facilitate it,
approve it, condone it, or turn a blind eye for fear of what [he or she] might see.” Id.
Defendants rely on plaintiff’s deposition testimony on this issue. Plaintiff testified
that he filed this lawsuit against the defendants solely because of their supervisory roles
as sheriff and jail administrator. [Doc. 59-1, Ex. A at 83:8-18, 126:12-23]. He also
testified that he did not communicate with either defendant during the relevant time. [Id.
at 70:18-71:8, 71:9–20; 110:6-15]. Further, he testified that he was unaware of any
personal knowledge or involvement by defendants in the alleged delay of his medication.
[Id. at 80:6–81:10, 83:15-18].
2. Deliberate Indifference
Defendants assert that plaintiff has not produced verifiable medical evidence
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showing a detrimental effect of the alleged delay in administration of his psychotropic
medication. “Prisoners and pretrial detainees are protected under the Constitution from a
state actor’s deliberate indifference towards the inmate’s serious medical needs.” Corwin
v. City of Independence, 829 F.3d 695, 698 (8th Cir. 2016). “A pretrial detainee’s
deliberate indifference claim is governed by the Fourteenth Amendment.” Smith v.
Lisenbe, 73 F.4th 596, 600 (8th Cir. 2023) (cleaned up). “To succeed on a Fourteenth
Amendment deliberate indifference claim, a plaintiff must demonstrate that [he] had an
objectively serious medical need that the defendants knew of and yet deliberately
disregarded.” Id. (cleaned up).
Deliberate indifference may include “intentionally denying or delaying access to
medical care or intentionally interfering with the treatment once prescribed.” Estelle v.
Gamble, 429 U.S. 97, 104-05 (1976). A failure to provide medical treatment is not a
constitutional violation unless the official knew that the condition created an excessive
risk to the prisoner’s health and then failed to act on that knowledge. Coleman v. Rahija,
114 F.3d 778, 785 (8th Cir. 1997). “It is not enough merely to find that a reasonable
person would have known about the risk, or that the officer should have known about the
risk.” Corwin, 829 F.3d at 699 (cleaned up). A prisoner must show that the official was
actually aware of the serious medical need but deliberately disregarded it. Id.
When a deliberate indifference claim is based on an alleged delay in medical
treatment, “there is an additional requirement to place verifying medical evidence in the
record to show there was a detrimental effect caused by the delay.” Cheeks v. Belmar, 80
F.4th 872, 878 (8th Cir. 2023). “[F]ailure to place verifying medical evidence in the
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record to establish the detrimental effect of delay in medical treatment precludes a claim
of deliberate indifference to medical needs.” Id.; see also Hancock v. Arnott, 39 F.4th
482, 487 (8th Cir. 2022) (concluding that the plaintiff’s failure to establish the
detrimental effect of the delay through medical evidence was fatal to his claim); Jackson
v. Riebold, 815 F.3d 1114, 1120 (8th Cir. 2016) (finding that the plaintiff could not show
deliberate indifference because he failed to provide verified medical evidence
establishing the detrimental effect of the delay in treatment).
Defendants point out the plaintiff acknowledged during his deposition that he did
not consult any medical provider who could diagnose him or offer an opinion on whether
missing his psychotropic medication for a period of fifteen days had any detrimental
effect on his health. They contend, therefore, that plaintiff cannot establish a
constitutional violation and they are entitled to qualified immunity. However, until the
matter of exhaustion is resolved, the Court cannot render a decision on the defendants’
motion on the merits. See Benjamin v. Ward County, 632 F. App’x 301 (2016) (holding
that the district court erred by proceeding to the merits without first determining whether
the plaintiff had exhausted available administrative remedies); Pinder v. McDowell, 714
F. App’x 612 (2018) (vacating judgment on the merits and remanding for district court to
determine whether plaintiff had exhausted available administrative remedies); Lyon v.
Vande Krol, 305 F.3d 806, 806-09 (8th Cir. 2002) (en banc) (reversing jury verdict in
favor of plaintiff and remanding for dismissal under 42 U.S.C. § 1997e(a) because
plaintiff had failed to exhaust administrative remedies).
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3. Further proceedings
The Court must determine whether the disputed facts related to defendants’
affirmative defense of failure to exhaust administrative remedies should be determined by
the Court or a jury. Seven circuits have held that such disputed facts should be decided
by the court. See Lee v. Willey, 789 F.3d 673 (6th Cir. 2015) (collecting cases and
agreeing with the Second, Third, Fifth, Seventh, Ninth, and Eleventh Circuits that the
court may resolve factual disputes relevant to the exhaustion issue); Carbajal v. McCann,
808 F. App’x 620, 639 (10th Cir. 2020) (“Every circuit that has considered the issue
agrees that “judges may resolve factual disputes relevant to the exhaustion issue without
the participation of a jury.”). In unpublished per curiam opinions, the Eighth Circuit has
seemingly affirmed this position and approved the use of evidentiary hearings on the
issue of exhaustion of administrative remedies. See Walther v. Habtermariam, No. 22-
2764, 2023 WL 179889, at *1 (8th Cir. Jan. 13, 2023) (affirming dismissal for failure to
exhaust administrative remedies by district court following an evidentiary hearing); Boyd
v. Rechcigl, 790 F. App’x 53 (8th Cir. 2020) (citing Lee, 789 F.3d at 677) (same);
Martinez v. Fields, 627 F. App’x 573, 574 (8th Cir. 2015) (reversing dismissal for failure
to exhaust administrative remedies by district court following an evidentiary hearing).
Additionally, judges in this district have held that disputed issues of fact on exhaustion
may be determined by the court following an evidentiary hearing. See, e.g. Marsh v.
Reckert, 4:23-cv-00128-SPM, 2025 WL 1928608 (E.D. Mo. July 14, 2025) (finding the
disputed facts relevant to the exhaustion issue can be decided by the court at an
evidentiary hearing prior to a jury trial); Covington v. Stuckey-Parchmon, 4:18-cv-01667-
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SEP, 2021 WL 3856554 (E.D. Mo. Aug. 27, 2021) (ruling on the issue of exhaustion of
administrative remedies following an evidentiary hearing); Walther v. Habtemariam,
4:17-cv-2705-SPM, 2022 WL 2915566 (E.D. Mo. July 25, 2022) (same).
However, not all factual disputes on exhaustion may be decided by the court. The
Supreme Court recently held that where the issue of exhaustion of administrative
remedies under the PLRA is intertwined with the merits of the underlying suit, the parties
are entitled to a jury trial on exhaustion. Perttu v. Richards, 605 U.S. 460, 479 (2025).
In other words, a jury trial is required when resolution of the exhaustion issue would also
resolve a genuine dispute of material fact regarding the merits of the plaintiff ‘s
substantive claim. Id. at 467-68.
If defendants wish to pursue the affirmative defense of failure to exhaust
administrative remedies, they must notify the Court and submit a brief on Perttu and the
possibility of intertwinement in this case. If defendants choose to waive the issue of
exhaustion, they shall file a notice withdrawing the affirmative defense. The Court will
then rule on the motion for summary judgment on the claim of qualified immunity.
Accordingly,
IT IS HEREBY ORDERED that defendants’ motion for summary judgment is
DENIED on the issue of failure to exhaust administrative remedies because there is a
genuine issue of material fact about the availability of the grievance process.
IT IS FURTHER ORDERED that a ruling on the motion for summary judgment
on qualified immunity is DEFERRED until the issue of exhaustion is resolved.
IT IS FURTHER ORDERED that if defendants wish to pursue the affirmative
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defense of failure to exhaust administrative remedies, they shall file a notice with the
Court within 14 days along with a brief on Perttu and the possibility of intertwinement in
this case. Plaintiff may file a response within 14 days.
IT IS FINALLY ORDERED that if defendants choose to waive the issue of
exhaustion, they shall file a notice withdrawing that affirmative defense within 14 days.
If defendants waive, the matter is fully briefed, and no further briefing is allowed without
leave of court.
SO ORDERED this 5th day of December, 2025.
STEPHEN N. LIMBAUGH, JR.
SENIOR UNITED STATES DISTRICT JUDGE
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