United States District Court, E.D. Arkansas, Pine Bluff Division
MEMORANDUM AND ORDER
Steven Cody (a/k/a Ishmael Obama) filed a pro se
complaint pursuant to 42 U.S.C. § 1983 on September 21,
2016 (Doc. No. 1). In the complaint, he alleged that Captain
Michael Richardson, Warden Randy Watson, Sergeant Patricia
Gooley, and McConnell (the “Defendants”) failed
to protect him from assaults by other inmates.
filed a motion for summary judgment, a brief in support, and
a statement of facts claiming that Cody had not exhausted
claims against them before he filed this lawsuit (Doc. Nos.
46-48). In response, Cody filed a motion for summary
judgment, brief in support, and a statement of facts (Doc.
Nos. 52-54). Cody's motion and supporting pleadings are
copies of the Defendants' pleadings with some words
marked out and additional language added. Defendants filed a
reply to those pleadings (Doc. No. 56), and a response to
Cody's statement of undisputed facts (Doc. No. 57). Cody
recently filed a motion for a temporary restraining order in
which he alleges one of the defendants is verbally assaulting
him (Doc. No. 63).
defendants' statement of facts, and the other pleadings
and exhibits in the record, establish that the material facts
are not in dispute, the Defendants are entitled to summary
judgment as a matter of law. The Court also denies Cody's
motion for summary judgment and motion for a temporary
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).
argue they are entitled to summary judgment because Cody
failed to exhaust his administrative remedies as to his claim
against them before he filed this lawsuit. In support of
their claim that Cody failed to exhaust his administrative
remedies, Defendants submitted the ADC's grievance
policy; a declaration by Barbara Williams, the ADC's
Inmate Grievance Supervisor; a copy of Grievance VSM16-03124;
and a copy of Grievance VSM16-3126 (Doc. Nos. 47-1 - 47-4).
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). The 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. 47-1 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. An
inmate must include the original Unit Level Grievance Form
with his or her appeal. Id. at 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.
to Williams' declaration, Cody submitted two grievances
that could potentially relate to the issues of this case:
VSM16-03124 and VSM16-03126. Doc. No. 47-2 at 1. Both
grievances were filed on September 20, 2016, the day before
this lawsuit was filed. In Grievance VSM16-03124, Cody
alleged that he notified Richardson and Cooley that he could
not go to barracks 10 because of Aryan inmates waiting to
assault him. Cody did not name Watson or McConnell in
VSM16-03124. The warden responded to VSM16-03124 on October
4, 2016. The grievance was found without merit, and was
appealed by Cody on October 6, 2016. Grievance VSM16-03126
named Richardson and Watson. VSM16-03126 was rejected on
September 20, 2016, as duplicative of VSM16-03124. Cody
appealed the rejection on October 3, 2016, and the appeal was
denied on November 15, 2016.
to the ADC's grievance policy, inmates must exhaust
administrative remedies at all levels of the procedure in
order to exhaust their administrative remedies. The
grievances filed by Cody are unexhausted because he did not
complete the appellate process before he filed this lawsuit.
Proper exhaustion “‘means using all steps that
the agency holds out, and doing so properly (so that
the agency addresses the issues on the merits).'”
Woodford v. Ngo, 548 U.S. 81, 90 (2006) (emphasis in
original) (quoting Pozo v. McCaughtry, 286 F.3d
1022, 1024 (7th Cir. 2002)).
motion for summary judgment and accompanying brief, Cody
maintains that exhaustion is not required in emergency
situations and that he filed the lawsuit under the
“imminent danger clause.” There is no imminent
danger exception to the PLRA's exhaustion requirements.
See Johnson v. Russell, No. 5:15CV00129-JLH-JJV,
2015 WL 4506412, at *3 (E.D. Ark. July 23, 2015) (“The
Eighth Circuit has excepted inmates from PLRA exhaustion
compliance in two circumstances, namely ‘when prison
officials have prevented prisoners from utilizing the
procedures, or when officials themselves have failed to
comply with the grievance procedures.'”) (quoting
Gibson v. Weber, 431 F.3d 339, 341 (8th Cir. 2005)
(internal citations omitted)). Cody does not argue that
either exception applies to this case; his use of the
grievance procedure on September 20, 2016 shows that it was
available to him. Further, he cannot show that any failure to
follow the grievance procedure led to his filing this lawsuit
on September 21, 2016, before receiving a response to his
September 20 grievances. Even if Cody subjectively believed
that completing the grievance procedure would not adequately
address his complaints, he was still required to exhaust.
See Chelette v. Harris, 229 F.3d 684, 688 (8th Cir.
2000) (“Section 1997e(a) says nothing about a
prisoner's subjective beliefs, logical or otherwise,
about the administrative remedies that might be available to
the ADC grievance procedure does not provide an exception to
administrative exhaustion requirements because an inmate is
in fear of imminent danger. Rather, Administrative Directive
14-16 provides for expedited grievances in emergency
situations. An inmate may fill in the date beside
“Emergency Grievance” on the Unit Level Grievance
Form to designate an emergency, and present the form to any
staff, preferably the designated problem-solving staff. If
that staff determines that an emergency does exist,
corrective action is to be taken as soon as possible and no