United States District Court, E.D. Arkansas, Pine Bluff Division
LONNIE LEE LUNSFORD, JR. ADC #162779 PLAINTIFF
CHERYLE JOHNSON; and SCOTT TAYLOR DEFENDANTS
FINDINGS AND RECOMMENDATION
following proposed Findings and Recommendation have been sent
to Chief United States District Judge Brian S. Miller. 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
Lonnie Lee Lunsford, Jr. filed a pro se complaint
pursuant to 42 U.S.C. § 1983 (Doc. No. 2). Lunsford sued
Captain Cheryle Johnson,  the Arkansas Department of Correction
(“ADC”), and Scott Taylor (“Taylor”).
His claims against the ADC were subsequently dismissed.
See Doc. Nos. 4 & 8. Lunsford alleged in the
complaint that Johnson ignored or otherwise intentionally
disregarded Lunsford's concerns for his safety, and
Lunsford was subsequently attacked and injured by other
inmates. Lunsford alleges that after his release from the
hospital, he was placed in a housing area with one of his
attackers. Lunsford claims that after he protested the
housing assignment, Taylor issued Lunsford a major
disciplinary. Lunsford asked the Court to find the defendants
“liable” for his damages.
defendants filed a motion for summary judgment, a brief in
support, and a statement of facts claiming that Lunsford had
not exhausted claims against them before he filed this
lawsuit. Doc. Nos. 11-13. Lunsford filed a response, brief in
support, and affidavit, Doc. Nos. 16-18. For the reasons
described herein, the undersigned recommends that the
defendants' motion for summary judgment be granted and
this case be dismissed.
Standard of Review
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).
defendants argue they are entitled to summary judgment
because Lunsford failed to exhaust his administrative
remedies as to his claim against them before he filed this
lawsuit. In support of their claim that Lunsford failed to
exhaust his administrative remedies, the defendants submitted
the ADC's grievance policy and an affidavit by Shelly
Byers, the ADC's Medical Grievance Coordinator. Doc. Nos.
12-1 & 12-2.
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 particular episodes, and whether they allege
excessive force or some other wrong.” Porter v.
Nussle, 534 U.S. 516, 532 (2002).
PLRA does not prescribe the manner in which exhaustion
occurs. See Jones v. Bock, 549 U.S. at 218. It
merely requires compliance with prison grievance procedures
to properly exhaust. See id. Thus, the question as
to whether an inmate has properly exhausted administrative
remedies will depend on the specifics of that particular
prison's grievance policy. See id.
to the ADC's grievance policy, inmates are provided Unit
Level Grievance Forms as part of the Inmate Grievance
Procedure. See Doc. No. 12-1 at 4. To resolve a
problem, an inmate must first seek informal resolution by
submitting a Step One Unit Level Grievance Form within 15
days after the occurrence of the incident. Id. at 5.
Inmates are to “specifically name each individual
involved for a proper investigation and response to be
completed by the ADC.” Id. at 4. An inmate
must be “specific as to the substance of the issue or
complaint to include the date, place, personnel involved or
witnesses, and how the policy or incident affected the inmate
submitting the form.” Id. at 5-6. A problem
solver investigates the complaint and provides a written
response at the bottom of the form. Id. If the
inmate is not satisfied with the resolution, he may then
complete Step Two of the grievance procedure and submit the
form as a formal grievance. Id. at 8. If the inmate
receives no response, or if the inmate is not satisfied with
the response, the inmate can appeal to the appropriate Chief
Deputy/Deputy/Assistant Director. Id. at 10-11. Once
the Chief Deputy/Deputy/Assistant Director responds, the
grievance process is exhausted. Id. at 12. According
to the ADC's grievance policy, the entire grievance
procedure should be completed within 76 working days absent
an extension or unforeseen circumstances. Id. at 13.
The grievance policy specifically states that inmates must
exhaust administrative remedies at all levels of the
procedure before filing a federal civil rights lawsuit.
Id. at 17.
does not dispute that he failed to complete the grievance
process, but claims that he was in the hospital when the
fifteen-day deadline for filing a grievance expired.
See Doc. No. 16 at 1. According to his complaint,
Lunsford was attacked on or about April 27, 2016, and he
filed two grievances regarding his attack and subsequent
return to the Varner Unit in March 2017. See Doc.
No. 2 at 4, 7-8. Lunsford did not describe the length of his
hospitalization or the severity of his injuries. He also did
not provide the date of his return to the Varner Unit or
explain why he could not file a grievance sooner than he did.
The grievances he filed in March 2017 were rejected as
untimely, and Lunsford did not appeal. Assuming Lunsford had
no administrative remedy available to him until March 2017,
should have raised that issue in an ...