United States District Court, E.D. Arkansas, Batesville Division
PROPOSED FINDINGS AND RECOMMENDATION
PATRICIA S. HARRIS, Magistrate Judge.
following Proposed Findings and Recommendation have been sent
to United States District Judge J. Leon Holmes. You may file
written objections to all or part of this Recommendation. If
you do so, those objections must: (1) specifically explain
the factual and/or legal basis for your objection; and (2) be
received by the Clerk of this Court within fourteen (14) days
of this Recommendation. By not objecting, you may waive the
right to appeal questions of fact.
Mark Morris ("Morris") filed a complaint on January
27, 2015, alleging defendants were deliberately indifferent
to his medical needs in violation of his constitutional
rights under the 8th Amendment (Doc. No. 2). Morris, who is
incarcerated at the Grimes Unit of the Arkansas Department of
Correction ("ADC"), states that he had testicle
surgery in October 2014, and was still having complications
from that surgery and walking on a cane at the time this
action was filed. He claims that despite this condition,
prison employees required him to "clear the hall"
when segregation inmates were escorted through the hallway,
forcing him to walk from one end of the hall to the other and
stand behind gates (Doc. No. 2 at 4). Morris states that
being required to walk the length of the hallway caused him
pain and suffering and constitutes cruel and unusual
punishment. He seeks injunctive relief and money damages.
Id. at 5. Defendants are Timmie Loggains, ADC
Supervisor of Safety Procedures and Policies, Deputy Warden
Joe Page, Warden James Banks, and ADC Deputy Director Marvin
January 11, 2016, defendants filed a motion for summary
judgment, a brief in support, and a statement of facts,
asserting they are entitled to summary judgment because
Morris failed to exhaust his administrative remedies before
he filed his lawsuit (Doc. Nos. 21-23). Although Morris has
been given additional time to respond (Doc. No. 24), he has
not done so.
Rule 56(c) of the Federal Rules of Civil Procedure, summary
judgment is proper "if the pleadings, depositions,
answers to interrogatories and admissions on file, together
with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law. FED. R. CIV. P.
56(c); Celotex v. Catrett, 477 U.S. 317, 321 (1986).
When ruling on a motion for summary judgment, the court must
view the evidence in a light most favorable to the nonmoving
party. Naucke v. City of Park Hills, 284 F.3d 923,
927 (8th Cir. 2002). The nonmoving party may not rely on
allegations or denials, but must demonstrate the existence of
specific facts that create a genuine issue for trial.
Mann v. Yarnell, 497 F.3d 822, 825 (8th Cir. 2007).
The nonmoving party's allegations must be supported by
sufficient probative evidence that would permit a finding in
his favor on more than mere speculation, conjecture, or
fantasy. Id. (citations omitted). A dispute is
genuine if the evidence is such that it could cause a
reasonable jury to return a verdict for either party; a fact
is material if its resolution affects the outcome of the
case. Othman v. City of Country Club Hills, 671 F.3d
672, 675 (8th Cir. 2012). Disputes that are not genuine or
that are about facts that are not material will not preclude
summary judgment. Sitzes v. City of West Memphis,
Ark., 606 F.3d 461, 465 (8th Cir. 2010).
Prison Litigation Reform Act (PLRA) requires an inmate to
exhaust prison grievance procedures before filing suit in
federal court. See 42 U.S.C. Â§1997e(a); Jones v.
Bock, 549 U.S. 199, 202 (2007); Jones v.
Norris, 310 F.3d 610, 612 (8th Cir. 2002). Exhaustion
under the PLRA is mandatory. Jones v. Bock, 549 U.S.
at 211. The PLRA's exhaustion requirement applies to all
inmate suits about prison life whether they involve general
circumstances or particular episodes, and whether they allege
excessive force or some other wrong." Porter v.
Nussle, 534 U.S. 516, 532 (2002).
PLRA does not prescribe the manner in which exhaustion
occurs. See Jones v. Bock, 549 U.S. at
922-923. It merely requires compliance with prison grievance
procedures to properly exhaust. See id. at 922-23.
Thus, the question as to whether an inmate has properly
exhausted administrative remedies will depend on the
specifics of that particular prison's grievance policy.
See id. at 923-924.
grievance policy is set out in Administrative Directive 14-16
(Doc. No. 21-1). It requires an inmate to initiate the
grievance process by completing a Unit Level Grievance Form
within 15 days of the complained-of incident. Id.,
at 3. It further provides that "the inmate should write
a brief statement that is specific as to the substance of the
issue or complaint to include the date, place, personnel
involved or witnesses, and how the policy or incident
affected the inmate submitting the form." Id.
at 3-4. Only one Unit Level Grievance Form can be submitted
per grievance, and only one issue/problem will be addressed.
Id. at 3.
grievance policy provides that when an informal complaint is
made, it is referred to a problem solver who is to meet with
the inmate and provide a written response on the Unit Level
Grievance Form. Id. at 4. If the problem cannot be
solved informally, the inmate may file a formal grievance
using the Unit Level Grievance Form that was used for the
informal complaint. To do so, the inmate must state in a
designated location on the form why the informal resolution
was not resolved, date the form, and submit it to the
grievance box or staff member. Id. at 6. The
grievance is then reviewed by the Warden/Center Supervisor,
who issues a written decision on a specific form entitled
"Warden/Center Supervisor's Decision Form."
inmate is not satisfied with the response to the formal
grievance, he may appeal to the Assistant or Deputy Director.
The appeal must be written in a space specifically designated
on the Warden/Center Supervisor's Decision form titled
"INMATE'S APPEAL." Id. at 7.
Directions on that form state that "[y]our appeal
statement is limited to what you write in the space provided
below." See, e.g., Doc. 2 at 8. ADC's
grievance policy provides that "[o]nly what is written
in the space provided for appeal will be considered part of
the grievance appeal.... ONLY THE STATEMENT IN THE SPACE
PROVIDED WILL BE MAINTAINED AND CONSIDERED PART OF THE APPEAL
SUBMISSION." Doc. No. 21-1 at 7. "To complete the