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Neal v. Kelly

United States District Court, E.D. Arkansas, Pine Bluff Division

February 6, 2018

RICKEY L. NEAL, ADC #070303 PLAINTIFF
v.
TASHA KELLY, et al. DEFENDANTS

          RECOMMENDED DISPOSITION

         I. Procedures for Filing Objections:

         This 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. All objections must be received in the office of the Court Clerk within 14 days of this Recommendation.

         If no objections are filed, Judge Holmes can adopt this Recommendation without independently reviewing the record. By not objecting, parties may waive their right to appeal.

         II. Discussion:

         A. Background

         Plaintiff Rickey L. Neal, an inmate at the Varner Unit of the Arkansas Department of Correction (“ADC”), filed this civil rights lawsuit pro se. (Docket entry #2) In his complaint, Mr. Neal alleges that his legal mail was unreasonably delayed, and as a result, he lost his right to pursue certain claims and appeals. (#2)

         Defendants Kelly, Branch, Andrews, and Kelley (“Defendants”) have now moved for summary judgment on the issue of exhaustion. (#19) Mr. Neal responded by filing a cross motion for summary judgment that essentially argues that Defendants' motion for summary judgment should be denied. (#26)

         B. Standard

         Summary judgment is granted to a party when the evidence, viewed in the light most favorable to the nonmoving party, presents no genuine dispute as to any fact important to the outcome of the lawsuit. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 246 (1986). If important facts remain in dispute, the court cannot grant summary judgment, and the case is set for a trial.

         C. Exhaustion

         The Prison Litigation Reform Act (“PLRA”) requires the Court to dismiss all claims filed under 42 U.S.C. § 1983 that were not fully exhausted prior to the date the complaint was filed. 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”). The specific procedures required for exhaustion are determined by the prison where the inmate is incarcerated-here the ADC-and not by federal law.

         D. Discussion

         At all times relevant to the claims in this lawsuit, Administrative Directive (“AD”) 14-16 was in effect. (#19-2) Under AD 14-16, inmates are required to fully exhaust their administrative remedies as to all defendants before filing a § 1983 lawsuit. (Id. at 17-18) Aggrieved inmates must first file a unit-level grievance form within fifteen days of the incident. (Id. at 5) The unit-level grievance form must include a statement that “is specific as to the substance of the 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) This form must be presented to a designated problem-solver or to any staff member holding the rank of sergeant or above. (Id. at 6) A staff member presented with a grievance must sign and date the form. (Id.) If the problem cannot be resolved, the resolution attempt must be documented on the form and, if the inmate is not satisfied, he or she may proceed to step two. This next step must be taken within three days. (Id. at 7-8)

         At step two, the inmate must explain why the informal resolution was inadequate. (Id. at 8) Upon receipt of the step-two form, the grievance officer is required to transmit an acknowledgement or rejection to the inmate within five working days. (Id. at 9) If the inmate does not receive a response within twenty days, the inmate may proceed to the next level of the ...


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