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Lewis v. Kiker

United States District Court, W.D. Arkansas, Hot Springs Division

May 16, 2017

ARRON MICHAEL LEWIS PLAINTIFF
v.
JARCEY J. KIKER, Advanced Practice Nurse APN, Ouachita Regional Unit ORU; NURSE DENISE J. BARTHEL, ORU; and NURSE ANDREA HAZELWOOD, ORU DEFENDANTS

          ORDER

          Susan O. Hickey United States District Judge

         Before the Court is the Report and Recommendation filed March 9, 2017, by the Honorable Barry A. Bryant, United States Magistrate Judge for the Western District of Arkansas. (ECF No. 125). Plaintiff Arron Michael Lewis filed objections to the Report and Recommendation. (ECF No. 126). The Court finds the matter ripe for consideration.

         I. BACKGROUND

         Plaintiff filed this suit pursuant to 42 U.S.C. § 1983, alleging that he was denied adequate medical care during a period of time in which he was incarcerated in the Ouachita River Unit (“ORU”) of the Arkansas Department of Corrections (“ADC”). The claim involves a period of time, beginning with Plaintiff's transfer on October 3, 2014, to the ORU, and ending with his subsequent transfer to the Tucker Maximum Unit (“Tucker”) of the ADC on October 6, 2014. During this period, Plaintiff alleges that he had a dislocated shoulder and that he did not receive adequate treatment or pain relief.

         Defendant's grievance records show that Plaintiff submitted seven formal medical grievances[1] between October 7, 2014, and December 19, 2014.[2] This case was filed against certain ORU medical personnel on December 18, 2014.

         Plaintiff maintains that on October 7, 2014, after he was transferred to Tucker, he submitted a grievance complaining of a lack of medical care received while he was held at ORU. Plaintiff states that this grievance went unaccounted-for at all levels of the grievance procedure (the “missing grievance”). Plaintiff states that he gave the step-one informal resolution to Sergeant Blunt, who was to forward it to a problem-solver for a response, but that no response came within the time frame set out in the ADC grievance policy. Plaintiff states that, pursuant to the grievance policy, he then submitted a formal grievance on October 15, 2014 in the form of his yellow carbon copy of his informal resolution.[3] This formal grievance was marked received by a Sergeant Turner and was to be forwarded to a grievance officer for a response, but no response came within the time frame set out in the grievance policy. Plaintiff states that he then submitted an appeal on October 29, 2014, in the form of a cover letter and a copy of his pink copy of his informal resolution. This appeal was not acknowledged as received and received no response within the time frame set out in the grievance policy. Defendants maintain that, per the grievance policy, every informal resolution and formal grievance that are received are acknowledged and assigned a grievance number, and that there is no record of this missing grievance ever being received or being assigned a grievance number at any level of the grievance process.

         On April 16, 2015, Defendants filed a motion for summary judgment for lack of administrative exhaustion.[4] (ECF No. 20). On September 17, 2015, Judge Bryant issued a Report and Recommendation, recommending that the summary judgment motion be denied because an issue of fact existed as to whether Plaintiff exhausted his administrative remedies prior to filing this suit. (ECF No. 46). Specifically, Judge Bryant found that an issue of fact existed because Plaintiff alleges to have filed a medical grievance-which received no acknowledgment or response-and subsequently submitted an appeal of that grievance-also receiving no acknowledgement or response. Defendants, however, maintain that they have no record of ever receiving the grievance or its appeal, and thus they argue that there is no verifiable evidence supporting a conclusion that Plaintiff exhausted his administrative remedies. Thus, Judge Bryant recommended denial of Defendants' summary judgment motion for lack of exhaustion. On October 10, 2015, the Honorable Robert T. Dawson, District Judge for the Western District of Arkansas, adopted that Report and Recommendation.[5] (ECF No. 52). Defendants moved for a hearing on the issue of exhaustion of remedies, arguing that district courts can resolve issues of fact involving administrative exhaustion. (ECF No. 48). Judge Bryant granted the motion and held a hearing on the issue of exhaustion on September 8, 2016, at which both parties presented witnesses.[6]

         On March 9, 2017, Judge Bryant issued the instant Report and Recommendation, recommending that judgment be entered in Defendants' favor because Plaintiff failed to exhaust his administrative remedies before filing this lawsuit under 42 U.S.C. § 1983. On April 10, 2017, Plaintiff filed objections to the Report and Recommendation.

         II. DISCUSSION

         According to 28 U.S.C. § 646(b)(1), the Court will conduct a de novo review of all issues related to Plaintiff's missing grievance. Plaintiff's objections contain six numbered objections. Objection one makes the conclusory claim that the Report and Recommendation does not rely on the undisputed facts of the case. Objections two, three, and five argue that Plaintiff did everything that was required by the grievance policy to exhaust his remedies, and thus the Court should find that he exhausted his remedies due to the lack of response to his appeal. Objection four makes the conclusory claim that Defendants offered no proof that Plaintiff did not follow each step of the grievance procedure. Objection six challenges the reasons Judge Bryant gave for concluding that Plaintiff had not exhausted his remedies.

         A. Lack of Evidence Showing that Plaintiff Exhausted his Remedies

         After conducting a hearing on exhaustion and hearing the testimony of witnesses offered by both parties, Judge Bryant concluded that there was no verifiable evidence that Plaintiff exhausted his remedies before bringing this suit with respect to the missing October 7, 2014 grievance.[7] Judge Bryant was unpersuaded by Plaintiff's argument that he filed both a grievance and a subsequent appeal that are essentially missing, as they were never acknowledged or responded to. Judge Bryant listed several reasons supporting his conclusion that Plaintiff did not exhaust his remedies with respect to any grievance filed between October 7, 2014, and December 19, 2014.

         Plaintiff makes multiple objections to Judge Bryant's conclusion. First, Plaintiff objects generally that Judge Bryant did not make his determination based on the undisputed facts of the case. In support of this contention, Plaintiff cites to page seven of Judge Bryant's first Report and Recommendation on summary judgment (ECF No. 46) and argues that in this report, Judge Bryant states that it is undisputed that Plaintiff completed every step of the grievance procedure. Page seven of the first Report and Recommendation states that Plaintiff asserts that he submitted an appeal, which received no response.

         The Court is unpersuaded by Plaintiff's argument. Page seven of the first Report and Recommendation is insufficient to show that Plaintiff completed every step of the grievance procedure with respect to his missing grievance. The Report and Recommendation does not state definitively that Plaintiff submitted his appeal, but rather that he claims to have done so. The record does not indicate that Plaintiff offered any proof that he submitted the appeal other than an affidavit stating as such.[8] Moreover, Defendants argued against Plaintiff's assertion in their reply brief for summary judgment on exhaustion, attaching documents to “underscore the fact that Plaintiff has not completed the inmate grievance process as to any relevant medical grievance prior to initiating the instant action.” (ECF ...


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