United States District Court, E.D. Arkansas, Eastern Division
DAVID E. KATES, Reg #30428-077 PLAINTIFF
CARTER, et al. DEFENDANTS
Procedures for Filing Objections:
Recommended Disposition (“Recommendation”) has
been sent to Judge J. Leon Holmes. Any party may file written
objections to this Recommendation. Objections must be
specific and must include the factual or legal basis for the
objection. To be considered, all objections must be received
in the office of the Court Clerk within 14 days of this
objections are filed, Judge Holmes can adopt this
Recommendation without independently reviewing the record.
Parties who do not object to the Recommendation risk waiving
the right to appeal questions of fact.
David E. Kates, an inmate currently being held at Forrest
City Medium, Federal Correctional Institution, filed this
civil rights lawsuit on March 20, 2017. (Docket entry #1) Mr.
Kates alleges that Defendants Futrell, Abbott and Wooding
failed to protect him, in violation of the Eighth Amendment.
See Bivens v. Six Unknown Agents of the Fed. Bureau of
Narcotics, 403 U.S. 388 (1971). (#1, #12) Specifically,
Mr. Kates complains that the Defendants referred to him as a
snitch and otherwise made it known to other inmates that he
was in protective custody on March 4, 2017. He claims that
these comments have put him at risk of assault or death at
the hands of fellow inmates. (#12)
have moved for summary judgment on the issue of exhaustion,
or, in the alternative, for dismissal under Federal Rule of
Civil Procedure 12(b)(1), 12(b)(6), and qualified immunity.
(#22) Mr. Kates has responded, contending that he did exhaust
his administrative remedies. (#27)
Prison Litigation Reform Act requires the Court to dismiss
any claim raised that was not fully exhausted prior to filing
a civil lawsuit under 42 U.S.C. § 1983. See 42 U.S.C.
§ 1997e(a) (declaring, “[n]o action shall be
brought with respect to prison conditions . . . by a prisoner
confined in any jail, prison, or other correctional facility
until such administrative remedies as are available are
exhausted”); Woodford v. Ngo, 548 U.S. 81, 90
(2006) (explaining the proper exhaustion of remedies
“means using all steps that the [prison] holds out, and
doing so properly”); Johnson v. Jones, 340
F.3d 624, 627 (8th Cir. 2003) (holding an inmate must exhaust
all available administrative remedies before filing suit, and
“[i]f exhaustion was not completed at the time of
filing, dismissal is mandatory”). Furthermore, an
inmate's subjective beliefs regarding exhaustion are
irrelevant in determining whether administrative procedures
are available. Chelette v. Harris, 229 F.3d 684, 688
(8th Cir. 2000).
fully exhaust administrative remedies within the Bureau of
Prisons (“BOP”), a federal prisoner must submit
an Informal Resolution to the appropriate staff member; file
an Administrative Remedy Request with the Warden, if the
attempt at informal resolution is unsatisfactory; appeal the
Warden's response to the Regional Director; and appeal
the Regional Director's response to the Office of the
General Counsel. (#23-1. p. 3); see also 28 C.F.R. §
542.10 to 542.18. A grievance is not fully exhausted until it
has been properly presented at all three levels of the
administrative remedy process and has been denied at all
three levels. (#23-1. p. 3)
administrative remedy submissions from each BOP institution
are recorded in a computer-based information system known as
SENTRY. (#23-1. p. 3) Any submission from a BOP inmate,
whether accepted or rejected, is permanently recorded.
(#23-1. p. 3) Submissions into SENTRY are given a remedy ID
number generated by the system and assigned the suffix of F1.
(#23-1. p. 3) Upon appeal to the Regional Director, the
appeal is assigned the same remedy ID number, but with the
suffix R1. (#23-1. p. 3-4) An appeal to the General Counsel
is assigned the same remedy ID number, but with the suffix
A1. (#23-1. p. 4) If a submission is rejected and later
resubmitted after the deficiencies are corrected, the remedy
is affixed with the same remedy ID number and the
corresponding, F2, R2, or A2. (#23-1, p.4)
October 30, 2017, Mr. Kates had filed 698 Administrative
Remedy Requests or Appeals. (#23-1, p.4) It is undisputed
that only three Administrative Remedy Requests concern the
claims at issue in the present case: 900043-F1, 900047-F1,
900048-F1. (#23-1, p.4)
April 27, 2017, Mr. Kates filed Administrative Remedy Request
900043-F1, concerning complaints against Defendant Abbott.
(#23-1, p.4) On May 25, 2017, Mr. Kates filed his
Administrative Remedy Appeal 900043-R1, and it was rejected
because the submission did not provide sufficient information
for Regional review. (#23-1, p.4) Mr. Kates was given the
chance to resubmit his appeal to the Regional Director.
(#23-1, p.4) He did not resubmit his appeal to the Regional
Director, however, and instead, filed Administrative Remedy
Request 900043-A1 with the office of General Counsel on July
24, 2017. (#23-1, p.5) This appeal was rejected, and Mr.
Kates was directed to resubmit his appeal to the Regional
Director with errors corrected. (#23-1, p.5) He did not do
so. (#23-1, p.5)
April 27, 2017, Mr. Kates filed his Administrative Remedy
Request 900047-F1 concerning complaints against Special
Housing Unit staff. (#23-1, p.5) On May 25, 2017, he filed
Administrative Remedy Appeal 900047-R1. (#23-1, p.5) It was
rejected on June 13, 2017, because the submission did not
provide sufficient information for Regional review. (#23-1,
p.5) Mr. Kates was given an opportunity to resubmit the
appeal, but he did not elect to resubmit his appeal. Instead,
Mr. Kates filed Administrative Remedy Request 900047-A1 with
the General Counsel. (#23-1, p.5) It was rejected ...