United States District Court, E.D. Arkansas, Pine Bluff Division
BETH DEERE, Magistrate Judge.
I. Procedures for Filing Objections:
This Recommended Disposition ("Recommendation") has been sent to United States District Judge James M. Moody Jr. Any party file written objections to this Recommendation. If you file objections, they must be specific and must include the factual or legal basis for your objection. Your objections must be received in the office of the United States District Court Clerk within fourteen (14) days of this Recommendation.
If no objections are filed, Judge Moody can adopt this Recommendation without independently reviewing the record. By not objecting, you may also waive any right to appeal questions of fact.
Plaintiff RoDerick Conic, Sr., a former Arkansas Department of Correction ("ADC") inmate, filed this lawsuit on July 17, 2014. (Docket entry #2) After screening the complaint, the Court determined that Mr. Conic had stated a failure-to-protect claim against Tammy Shambley. (#6)
Ms. Shambley has now moved for summary judgment. (#39) She argues that Mr. Conic failed to fully exhaust any grievance against her regarding a failure to protect him. (#39, #40, #41) Mr. Conic responded to the motion arguing that he did exhaust the issue. (#45) For the reasons set forth below, the Court recommends that Ms. Shambley's motion for summary judgment (#39) be GRANTED.
Summary judgment is granted to a party when the evidence, viewed in the light most favorable to the nonmoving party, presents no genuine dispute as to any material fact. FED.R.CIV.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 246, 106 S.Ct. 2505 (1986).
The Prison Litigation Reform Act requires the dismissal of any claim that was not fully exhausted prior to filing a lawsuit under 42 U.S.C. § 1983. See 42 U.S.C. § 1997e(a) (declaring, "[n]o action shall be brought with respect to prison conditions... by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted"); Woodford v. Ngo, 548 U.S. 81, 90 (2006) (explaining the proper exhaustion of remedies "means using all steps that the [prison] holds out, and doing so properly"); Johnson v. Jones, 340 F.3d 624, 627 (8th Cir. 2003) (holding an inmate must exhaust all available administrative remedies before filing suit, and "[i]f exhaustion was not completed at the time of filing, dismissal is mandatory"). Furthermore, an inmate's subjective beliefs regarding exhaustion are irrelevant in determining whether administrative procedures are available. See Chelette v. Harris, 229 F.3d 684, 688 (8th Cir. 2000).
Based on the undisputed evidence presented, from the date of the altercation on September 30, 2012, until the date Mr. Conic filed this lawsuit on July 17, 2014, Mr. Conic filed only one grievance (CU-13-292) complaining about Ms. Shambley's conduct. (#2, p.16, #39, Ex. A, #40) In that grievance, Mr. Conic complained that Ms. Shambley's investigation of the September 30, 2012 altercation was poor and that the stiff disciplinary violation issued to him was based on inaccurate information provided by Ms. Shambley. (#2, p.16, #40) This grievance was rejected because it raised a non-grievable disciplinary matter. (#2, p.17, #39, Ex. C)
Mr. Conic appealed the rejection, arguing that his grievance "deals with more than just disciplinary issues. It includes... [h]ow security staff failed to protect me...." (#2, p.17, #39, Ex. C) Mr. Conic's appeal was denied as having no merit because disciplinary matters are not grievable issues. Mr. Conic was ...