United States District Court, E.D. Arkansas, Pine Bluff Division
HENRY A. HARMON PLAINTIFF
JONATHAN J. WHITE, KEITH DAY, and JARED BYERS DEFENDANTS
PROPOSED FINDINGS AND RECOMMENDATION
following Proposed Findings and Recommendation have been sent
to United States District Judge D.P. Marshall Jr. 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
Henry A. Harmon (“Harmon”), an Arkansas
Department of Correction (“ADC”) inmate, filed a
complaint on December 29, 2015, alleging he was stabbed
repeatedly by another inmate on July 29, 2015, and the
defendants failed to protect him from the attack.
Specifically, Harmon claims his injuries resulted from
“gross negligence, deliberate indifference, egregious
failure to protect.” Complaint, page 4. The three
individuals sued by Harmon are ADC employees at the Cummins
Unit, where the attack occurred.
defendants, Jonathan J. White (“White”), Keith
Day (“Day”), and Jared Byers
(“Byers”) seek summary judgment, alleging Harmon
failed to exhaust his available administrative remedies prior
to filing this lawsuit.
alleges he informed White, a corporal at the Cummins Unit, of
the stabbing around noon on July 29, 2015. According to
Harmon, White failed to call an emergency code, failed to
provide supervision in the open barracks from the control
booth, and allowed another inmate to be in the control booth
at the time of the attack, against ADC policy. He states
White's failures recklessly exposed him to the attack
from another inmate (not the inmate in the control booth).
Harmon faults defendant Byers, the assistant warden, for
staffing deficiencies and failing to adequately train
employees, which he believes resulted in the attack.
Defendant Day, a Cummins Unit captain, is alleged to have
arrived at the scene of the attack within minutes, placing
Harmon in handcuffs and escorting Harmon to building security
where he was interviewed. Harmon contends the handcuffing by
Day was a violation of ADC policy. In addition, Harmon
alleges Day's actions delayed the receipt of medical
services. According to the complaint, Day took photos of the
stab wounds, but did not do a thorough search for stab
wounds. As a result, Harmon later realized he had been
stabbed in his left hand, right hip/buttocks area and in his
stomach. Harmon states he was later charged with battery in
connection with the incident, but was found not guilty of the
to the complaint are two grievances executed by Harmon on
August 3 and August 5, 2015. In the grievances Harmon
complains that his medical problems stemming from the July 29
attack are not resolved. A response to the August 5 grievance
was made, and Harmon's signature shows he received this
response on August 13. Elsewhere in the complaint, Harmon
concedes that he did not fully exhaust the administrative
grievance procedure. Complaint, page 3. He explains that he
did not exhaust his administrative remedies because
“they wouldn't respond or answer my grievances to
these matters after incidents occurred.” Complaint,
consider if summary judgment is warranted in this case based
upon the contention of White, Day, and Byers that Harmon
failed to exhaust his administrative remedies as to them.
Harmon has filed numerous responses to the motion for summary
judgment. Docket entry nos. 41, 43-46. In these pleadings,
Harmon does not depart from the admission in his complaint
that he did not fully exhaust his remedies.
support of their claim that Harmon failed to exhaust his
administrative remedies, the defendants offer the declaration
of Barbara Williams (“Williams”), the ADC's
Inmate Grievance Supervisor. Docket entry no. 37-2. Williams
states that Harmon submitted two grievances, but appealed
neither of them. Further, Williams notes that Byers and Day
were not named in either of the grievances. The Court has
carefully reviewed the grievances in issue.
reasons set forth below, we recommend the motion for summary
judgment of White, Day, and Byers be granted due to
Harmon's failure to exhaust his administrative remedies.
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. §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 ...