United States District Court, E.D. Arkansas, Pine Bluff Division
KRISTINE G. BAKER, UNITED STATES DISTRICT JUDGE
Court has received Proposed Findings and Recommendations from
United States Magistrate Judge Joe J. Volpe (Dkt. No. 125).
Plaintiff Albert Lee Johnson filed objections to the Proposed
Findings and Recommendations (Dkt. No. 128). After the
Proposed Findings and Recommendations were filed, Mr. Johnson
also filed a response in opposition to the defendants'
second motion for summary judgment and a statement of facts
in support of his response (Dkt. Nos. 126,
127). After a review of the Proposed Findings
and Recommendations, and the timely objections received
thereto, as well as a de novo review of the entire
record including Mr. Johnson's response to the motion,
the Court adopts the Proposed Findings and Recommendations in
part (Dkt. No. 125), grants in part defendants' second
motion for summary judgment (Dkt. No. 115), and dismisses
with prejudice plaintiff's amended complaint (Dkt. No.
Johnson did not name defendant Marilyn Hutcheson in his
complaint or his amended complaint (Dkt. No. 2; Dkt. No. 27).
Instead, Mr. Johnson identified Ms. Hutcheson as a
“John Doe” defendant, and this Court effectively
added Ms. Hutcheson as a party pursuant to an instruction
from the Eighth Circuit Court of Appeals (Dkt. No. 95). Judge
Volpe granted defendants' second motion for summary
judgment and dismissed with prejudice plaintiff's amended
complaint in part due to Mr. Johnson's failing to serve
Volpe observed that, after Ms. Hutcheson was identified as a
defendant, Mr. Johnson never served Ms. Hutcheson. Therefore,
she did not receive proper notice. As a result, Judge Volpe
reasoned that the Court lacks jurisdiction over Ms.
Hutcheson. See Sieg v. Karnes, 693 F.2d 803, 807
(8th Cir. 1982) (providing that, if service of process is not
made in accordance with applicable federal or state statutory
requirements, a federal court cannot exercise jurisdiction
over the individual, unless the individual voluntarily makes
an appearance or waives defective service). As Mr. Johnson
correctly points out in his objections, on October 14, 2016,
he requested service of process on substituted “John
Doe” defendant Ms. Hutcheson (Dkt. No. 106). Judge
Volpe denied Mr. Johnson's request and specifically
stated that “the remaining four defendants have been
served.” (Dkt. No. 108). Those four defendants were Ms.
Conrad, Ms. Goldman, Ms. Smallwood, and Ms. Hutcheson. As a
result, it is difficult to fault Mr. Johnson for failing to
obtain service on Ms. Hutcheson. The Court rejects that
portion of the Proposed Findings and Recommendations that
determines Mr. Johnson did not timely serve Ms. Hutcheson and
denies in part defendants' second motion for summary
judgment on this basis.
Proposed Findings and Recommendations, Judge Volpe went on to
reason that, even assuming Ms. Hutcheson had been properly
named and served by Mr. Johnson, his claim against her would
now be time-barred. That conclusion is correct, and this
Court adopts that portion of the Proposed Findings and
Recommendations. The statute of limitations for claims
brought pursuant to 42 U.S.C. § 1983, as well as the
statute of limitations for a personal injury claim in
Arkansas, is three years. See Morton v. City of Little
Rock, 934 F.2d 180, 182 (8th Cir. 1991). The amendment
made on May 16, 2016, which is the date the Eighth Circuit
Court of Appeals identified Ms. Hutcheson by name and
directed that she be named as a defendant, does not relate
back to the previously filed complaint against a John Doe
defendant under Federal Rule of Civil Procedure
amendment to the pleadings will relate back to the date of
the original pleading when: (1) the statute of limitations
allows relation back; (2) the amendment asserts a claim or
defense that arose out of the conduct, transaction, or
occurrence set out-or attempted to be set out-in the original
pleading; or (3) the amendment changes the party or the
naming of the party against whom a claim is asserted, if Rule
15(c)(1)(B) is satisfied and if, within the period provided
by Rule 4(m) for serving the summons and complaint, the party
to be brought in by amendment either received such notice of
the action that it will not be prejudiced in defending it on
its merits and the party knew or should have known that the
action would have been brought against the party, but for the
mistake concerning the party's identity. See
Fed. R. Civ. P. 15(c); Foulk v. Charrier, 262 F.3d
687, 696 (8th Cir. 2001) (explaining that an amendment will
not be treated as relating back to the prior pleading, unless
certain conditions set forth in Rule 15(c) are satisfied).
Mr. Johnson has failed to satisfy those conditions here for
the reasons Judge Volpe explained (Dkt. No. 125, at 7-9).
Because of this, the statute of limitations on Mr.
Johnson's claims against Ms. Hutcheson ran in March 2013,
three years after Mr. Johnson became aware that his check was
returned to the Veterans Administration. Therefore, Mr.
Johnson's claim against Ms. Hutcheson is barred.
Failure To Exhaust
Sherry Conrad, Regina Goldman, and Ms. Hutcheson are entitled
to summary judgment because Mr. Johnson did not exhaust his
administrative remedies. According to the Prison Litigation
Reform Act (“PLRA”), an inmate is required to
exhaust prison grievance procedures before filing suit in
federal court. See § 42 U.S.C. 1997(e)(a);
Jones v. Bock, 549 U.S. 199, 204 (2007); Jones
v. Norris, 310 F.3d 610, 612 (8th Cir. 2002). ADC
Administrative Directive 09-01, “Inmate Grievance
Procedure, ” states that inmates must “exhaust
their administrative remedies as to all defendants at all
levels of the grievance procedure before filing a § 1983
claim lawsuit” (Dkt. No. 115, at 20).
Johnson failed to exhaust his administrative remedies against
Ms. Conrad, Ms. Goldman, and Ms. Hutcheson because he did not
specifically name them in the exhausted grievance (Dkt.
No.115-6, at 2). The first three grievances submitted by Mr.
Johnson only named separate defendant Barbara Smallwood
(Id., at 33, 42, 57). While Mr. Johnson named Ms.
Goldman and Ms. Hutcheson in his appeal of the first
grievance and Ms. Conrad and Ms. Goldman in his appeal of the
third grievance, this does not comply with ADC procedure
regarding the information required in a Unit Level Grievance
Form (Dkt. No. 115-6, at 8). Mr. Johnson submitted three more
grievances approximately two years later naming Ms.
Smallwood, Ms. Conrad, and Ms. Goldman, but these grievances
were rejected as untimely (Dkt. No. 115-6, at 71, 77, 81).
The Court has considered Mr. Johnson's response to
defendants' second motion for summary judgment and the
record evidence before the Court. Construing all of the
record evidence in favor of Mr. Johnson, as the Court is
required to do at this stage, the Court agrees with Judge
Volpe in his determination that Mr. Johnson did not exhaust
the grievance process in accordance with ADC procedure as to
these three defendants and therefore cannot file suit in
federal court against these defendants. The Court adopts that
portion of the Proposed Findings and Recommendations.
the Court approves and adopts the analysis and conclusion in
the Proposed Findings and Recommendations regarding qualified
immunity. Mr. Johnson specifically alleges harm from the
delay in receiving notice that his check was
returned (Dkt. No. 27). For the reasons set forth in the
Proposed Findings and Recommendations, the Court concludes
defendants are entitled to qualified immunity.
on the law and these facts, the Court adopts in part the
Proposed Findings and Recommendations (Dkt. No. 125), grants
in part defendants' second motion for summary judgment
(Dkt. No. 115), and dismisses with prejudice plaintiffs
amended complaint (Dkt. No. ...