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Bargher v. White

United States Court of Appeals, Fifth Circuit

July 1, 2019

DENNIS BARGHER, Plaintiff - Appellant
CRAIG WHITE, Major; UNKNOWN DAVISON, Sergeant; UNKNOWN WILKES, Master Sergeant, Defendants - Appellees

          Appeal from the United States District Court for the Middle District of Louisiana

          Before STEWART, Chief Judge, and DENNIS and WILLETT, Circuit Judges.


         While a prisoner at the Elayn Hunt Correctional Center in Louisiana, Dennis Bargher Jr. brought suit under 42 U.S.C. § 1983 against prison official defendants alleging that they arranged for another inmate to attack him and stood by while the other inmate severely injured him. While Bargher's legal action was pending, he was released from prison. The district court granted summary judgment for the defendants, dismissing Bargher's claims with prejudice as barred by the prescription period or, in the alternative, for Bargher's failure to exhaust administrative remedies as required under the Prison Litigation Reform Act (PLRA).

         We find that fact issues remain as to whether the prescription period was suspended and, thus, as to whether Bargher's claims were timely. Because we additionally hold that Bargher failed to exhaust administrative remedies, the proper disposition was therefore dismissal without prejudice. We VACATE the district court's judgment and REMAND with instructions to dismiss Bargher's claims without prejudice to his ability to refile now that he is no longer bound by the PLRA's exhaustion requirements.


         On May 4, 2016, while an inmate at the Elayn Hunt Correctional Center (E.H.C.C.) in Louisiana, Dennis Bargher Jr. filed a 42 U.S.C. § 1983 action against Major Craig White, Sergeant Davidson, and Master Sergeant Wilkes. Bargher alleged that these three prison employees violated his Eighth Amendment rights by encouraging another inmate to injure him, locking that inmate in a cell with him, and then standing by while that inmate "brutal[ly] attack[ed]" him.

         Specifically, Bargher alleged the following facts, none of which Defendants dispute on appeal. Prior to the attack, Bargher provided the Warden with information about an extortion scheme within the prison that involved Officer White. White learned about this and confronted Bargher. White then repeatedly spoke with Johnathan Veal, an inmate who had previously assaulted another inmate, and encouraged Veal to injure Bargher. White falsely told Veal that Bargher had been the one to report Veal for the previous assault, and told Veal that Bargher was "a rat and had to die." Bargher learned that, based on White's lies, Veal planned to seek revenge on him.

         On April 18, 2015, Bargher was taken from his cell and later escorted back by Sargent Davidson. When Davidson was returning Bargher to his cell, Bargher noticed that another inmate was unexpectedly already inside. Bargher objected to going back into the cell, but Davidson commanded him to "Get the F in the cell!" Once locked inside, Bargher realized the other inmate was Veal, who immediately began to attack him. Veal beat Bargher while Davidson watched and laughed, and Veal continued to do so until Davidson eventually stopped Veal and removed Bargher from the cell. As a result of the attack, Bargher suffered a broken jaw, broken teeth, and facial nerve damage. He states that he has permanent disfigurement and pain as well as significant emotional distress and anxiety.

         As noted, Defendants neither admit not deny this account in the district court or on appeal, but instead dispute what remedies Bargher sought in response. Under E.H.C.C.'s Administrative Remedy Procedure, inmates must first submit internal, written grievances-referred to as "ARPs"-by placing them in a box, from which they are then collected by prison staff, assigned a case number, and entered into E.H.C.C.'s computerized records. The record provides no indication that inmates receive notice when their ARPs are received or told what case number are assigned to which of their ARPs. Instead, they only receive notice when an ARP, as identified by the number assigned to it, is accepted or rejected. This has the potential to create confusion around which ARPs have received responses and which have not.

         Bargher asserts in a sworn affidavit and in his brief on appeal that he submitted several ARPs through this internal grievance procedure related to the April attack. He has additionally provided other documents, written before this lawsuit, in which he declared that he submitted the same ARPs. He has consistently contended that he first submitted two ARPs before the attack, in which he declared that Veal was his "known enemy" and needed to be kept away from him. He has repeatedly also asserted that, on June 12, 2015, he submitted a five-page ARP (the June ARP) detailing Veal's April attack and the Defendants' culpability. The record includes a copy of the June ARP that Bargher sent to his attorney, Donna Grodner as well as an accompanying letter in which he informed her that neither that ARP nor the two he submitted about Veal before the attack had received any response. This letter and copy of the June ARP are post-marked June 25, 2015 and stamped as received by Grodner on June 30, 2015.

         On October 7, 2015, Grodner sent a letter to the Warden inquiring about the status of Bargher's three ARPs for which he never received a response. On October 22, the Warden responded that Bargher had no ARPs pending.

         On October 6, 2015, Bargher submitted an ARP (ARP 744) requesting a response to the other ARPs that he asserted therein were still pending. This ARP was given case number EHCC-2015-744, and rejected two days later on October 8, 2015, for "addressing more than one complaint." The rejection notice identifies the ARP by its number and contains no other reference to its content.

         On November 3, 2015, Bargher submitted another ARP (ARP 819) describing the April assault and requesting remedies. In this submission, Bargher references other ARPs that he says he had submitted that "must have been lost, or better yet never received." This ARP was assigned number EHCC-2015-819 and rejected November 4, again ...

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