United States District Court, E.D. Arkansas, Pine Bluff Division
Kristine G. Baker, United States District Judge
the Court are the Proposed Findings and Recommendations
submitted to the Court by United States Magistrate Judge Joe
J. Volpe (Dkt. No. 20). Plaintiff Christopher Stowell has
timely filed an objection (Dkt. No. 21). Also pending before
the Court is Mr. Stowell's motion for copies (Dkt. No.
23). After careful consideration of the Proposed Findings and
Recommendations, Mr. Stowell's timely objections, and a
de novo review of the record, the Court concludes
for the reasons stated in this Order that the Proposed
Findings and Recommendations shall be approved of and adopted
in part. The Court grants defendant Lieutenant Telly
Grey's motion for summary judgment on exhaustion of
remedies (Dkt. No. 15), dismisses this case without prejudice
for failure to exhaust administrative remedies, and grants
Mr. Stowell's motion for copies (Dkt. No. 23).
Court writes separately to address Mr. Stowell's
objections. Mr. Stowell asserts that there is a genuine issue
of material fact concerning whether or not the appeal of his
formal grievance DR-16-00242 was timely. The Prison
Litigation Reform Act (“PLRA”) states that
“[n]o action shall be brought with respect to prison
conditions … until such administrative remedies as are
available are exhausted.” 42 U.S.C. § 1997e(a).
Under the PLRA, failure to exhaust the available
administrative remedies is an affirmative defense, with the
burden of proof falling on the defendant. Lenz v.
Wade, 490 F.3d 991, 993 n. 2 (8th Cir. 2007) (citing
Jones v. Bock, 549 U.S. 199, 216 (2007)).
“Compliance with prison grievance procedures,
therefore, is all that is required by the PLRA to
‘properly exhaust.'” Jones, 549 U.S.
exhaust properly their administrative remedies, inmates in
the Arkansas Department of Correction (“ADC”)
generally must file an informal resolution, formal grievance,
and appeal to the Assistant or Deputy Director level (Dkt.
No. 16, Ex. C, at 1-2). Inmates must move through each of
these steps in a timely fashion. The informal resolution or
Unit Level Grievance Form must be completed and submitted
within 15 days after the occurrence of the incident
(Id. at 5). After the receipt of this complaint, a
problem solver must meet with the inmate within three working
days (Id. at 6). If the problem cannot be resolved,
the inmate has three working days from the receipt of the
problem solver's response to file a formal grievance
(Id. at 8). The grievance officer shall then
transmit an acknowledgment or rejection of the Unit Level
Grievance Form to the inmate within five working days after
receipt (Id. at 9). If this formal grievance is
rejected, the inmate may appeal to the Deputy Director level
within five working days (Id. at 10).
Mr. Stowell filed an informal resolution, Unit Level
Grievance Form DR-16-00242 on June 9, 2016 (Dkt. No. 16, Ex.
B). Sgt. Derwin Lee acknowledged that he received this form
on June 10, 2016 (Id.). However, Sgt. Lee failed to
note the day that he returned Mr. Stowell's informal
grievance by leaving the blank “Staff Signature &
Date Returned” empty (Id.). Mr. Stowell notes
this absence in his response to defendant's motion for
summary judgment. He states, “Sgt. Derwin Lee failed to
date the grievance. . . thus creating a conflict of when this
grievance was served.” (Dkt. No. 19). Lt. Grey asserts,
but provides no documentation supporting, that Sgt. Lee
returned the informal resolution on June 10, 2016
(Id.). Mr. Stowell submitted a formal grievance on
June 20, 2016 (Id.). That same day, Lydia Godfrey,
the unit Grievance Officer, rejected Mr. Stowell's formal
grievance as untimely (Id.). Mr. Stowell appealed
that rejection to Assistant Director Dexter Payne on June 28,
2016 (Id.). Director Payne agreed that Mr.
Stowell's grievance was untimely and rejected his appeal
the evidence in a light most favorable to the nonmoving
party, a genuine issue of material fact may exist concerning
the timeliness of Mr. Stowell's formal grievance. Sgt.
Lee failed to specify the date that Mr. Stowell's
informal grievance was returned to Mr. Stowell. Because of
this, the Court cannot be certain that Mr. Stowell's
formal grievance was untimely. Viewing the evidence in a
light most favorable to the nonmoving party Mr. Stowell, Sgt.
Lee could have returned his response to Mr. Stowell as late
as June 15, 2016 - three working days after it was received.
Accordingly, Mr. Stowell would have been entitled to three
working days from June 15, 2016, to file a formal grievance.
This would make Mr. Stowell's grievance filed on June 20,
2016, timely rather than untimely under ADC policy.
this, Mr. Stowell still failed to exhaust properly his
administrative remedies before filing suit. Mr. Stowell's
appeal to the Assistant Director Dexter Payne was untimely.
This fact is undisputed. Mr. Stowell received the rejection
of his unit level grievance on June 20, 2016, and he appealed
on June 28, 2016 - six working days later. Accordingly, Mr.
Stowell failed to file his appeal within five working days of
the rejection of his formal grievance and did not exhaust his
administrative remedies as required by ADC policy. As a
result, his current claim is barred by his failure to
exhaust, and defendant Lt. Grey remains entitled to summary
judgment, as Judge Volpe concluded in his Proposed Findings
therefore ordered that:
1. Defendant Telly Grey's motion for summary judgment on
exhaustion of administrative remedies is granted (Dkt. No.
2. Plaintiff Christopher Stowell's motion for copies is
granted (Dkt. No. 23). The Court directs the Clerk to
transmit copies of the docket filings to Mr. Stowell at his
3. This case is dismissed, as all of Mr. Stowell's claims
have been dismissed by this Court's current and prior
Orders (Dkt. No. 22). The relief Mr. Stowell seeks is denied.
4. The Court certifies, pursuant to 28 U.S.C. §
1915(a)(3), that an in forma pauperis appeal from
this Order ...