United States District Court, W.D. Arkansas, Texarkana Division
O. Hickey United States District Judge.
the Court is the Report and Recommendation filed February 9,
2017, by the Honorable Barry A. Bryant, United States
Magistrate Judge for the Western District of Arkansas. (ECF
No. 44). Defendants Bobbie McDowell and Stephen Arnold have
filed objections. (ECF No. 46). The Court finds the matter
ripe for consideration.
filed this action under 42 U.S.C. § 1983 in connection
with time spent incarcerated in the Arkansas Department of
Community Correction's (“ACC”) Southwest
Arkansas Community Correction Center (“SWACCC”)
facility. Plaintiff asserts claims involving excessive force;
sexual abuse; razor blades in his food tray; destruction of
his mail, photos, and grievances; and that he was prevented
from filing grievances after he filed a Prison Rape
Elimination Act (“PREA”) complaint.
was incarcerated in SWACCC at all times relevant to this
matter. Among other things, Plaintiff alleges that
on April 4, 2016, Defendant McDowell escorted him to a mental
health appointment. While he was handcuffed, Plaintiff
alleges that McDowell fondled his genitals, causing him
1, 2016, Plaintiff informed a SWACCC staff member of the
alleged sexual abuse. Plaintiff was taken to a phone and
allowed to call the PREA hotline. On May 2, 2016, Plaintiff
provided a written statement to SWACCC officials, describing
the alleged sexual abuse. SWACCC conducted an investigation,
ultimately concluding that Plaintiff's allegation of
sexual abuse could not be substantiated.
30, 2016, Plaintiff filed this lawsuit. On December 9, 2016,
Defendants filed a Motion for Summary Judgment on Exhaustion,
arguing that Plaintiff's claims should be dismissed for
failure to exhaust his administrative remedies pursuant to
the Prison Litigation Reform Act (“PLRA”). Judge
Bryant issued a Report and Recommendation, recommending that
the motion be denied because Plaintiff's PREA complaint
substituted in place of a formal written grievance-thus
exhausting Plaintiff's administrative remedies-and
because genuine issues of material fact existed as to whether
Defendants prevented Plaintiff from filing grievances after
he filed the PREA complaint. On February 22, 2017, Defendants
filed objections to the Report and Recommendation,
specifically objecting to the recommendations “(1) that
the . . . grievance policy relieves [Plaintiff's]
obligation to comply with that policy; (2) that
[Plaintiff's] PREA complaint may substitute as a
grievance under the . . . grievance policy; and (3) that
[Plaintiff] has shown a genuine dispute of fact concerning
whether he filed grievances or whether the . . . Defendants
prevented him from filing them.” (ECF No. 46).
According to 28 U.S.C. § 646(b)(1), the Court will
conduct a de novo review of all issues related to
Defendants' specific objections.
standard for summary judgment is well established. When a
party moves for summary judgment, “[t]he court shall
grant summary judgment 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.” Fed.R.Civ.P.
56(a); Krenik v. County of LeSueur, 47 F.3d 953, 957
(8th Cir. 1995). This is a “threshold inquiry of . . .
whether there is a need for trial-whether, in other words,
there are genuine factual issues that properly can be
resolved only by a finder of fact because they reasonably may
be resolved in favor of either party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A fact is
material only when its resolution affects the outcome of the
case. Id. at 248. A dispute is genuine if the
evidence is such that it could cause a reasonable jury to
return a verdict for either party. Id. at 252.
deciding a motion for summary judgment, the Court must
consider all the evidence and all reasonable inferences that
arise from the evidence in a light most favorable to the
nonmoving party. Nitsche v. CEO of Osage Valley Elec.
Co-Op, 446 F.3d 841, 845 (8th Cir. 2006). The moving
party bears the burden of showing that there is no genuine
issue of material fact and that it is entitled to judgment as
a matter of law. See Enterprise Bank v. Magna Bank,
92 F.3d 743, 747 (8th Cir. 1996). The nonmoving party must
then demonstrate the existence of specific facts in the
record that create a genuine issue for trial.
Krenik, 47 F.3d at 957. However, a party opposing a
properly supported summary judgment motion “may not
rest upon mere allegations or denials . . . but must set
forth specific facts showing that there is a genuine issue
for trial.” Id. at 256.
initial matter, the Court must examine the ACC's
grievance policy. The Court will determine whether Plaintiff
exhausted his administrative remedies, and if not, whether an
exception applies to excuse the failure to exhaust.
the Court must determine whether Plaintiff exhausted his
administrative remedies under ...