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Richardson v. Kelley

United States District Court, E.D. Arkansas, Northern Division

July 11, 2018

ANGELA SCHUNCEY RICHARDSON ADC #712575 PLAINTIFF
v.
WENDY KELLEY, Director, Arkansas Department of Correction, et al. DEFENDANTS

          SUPPLEMENTAL RECOMMENDED DISPOSITION

         The following Supplemental Recommended Disposition ("Recommendation") has been sent to United States District Judge Kristine G. Baker. 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 the date of this Recommendation. If you do not file objections, Judge Baker can adopt this Recommendation without independently reviewing all of the evidence in the record. By not objecting, you may waive the right to appeal questions of fact.

         I. Introduction

         Plaintiff Angela Schuncey Richardson ("Richardson") is a prisoner in the McPherson Unit of the Arkansas Department of Correction (“ADC”). After the Court struck her initial 530-page Complaint because it violated Rules 8, 20 and 21 of the Federal Rules of Civil Procedure, she filed three pro se § 1983 Substituted Complaints and an Addendum alleging constitutional claims against Defendants Account Clerk Mytris Stone (“Stone”) and Assistant Warden Tami Jo Aiken (“Aiken”). Docs. 7, 12, 14, 16 & 17. On December 21, 2017, the Court filed a Recommended Partial Disposition suggesting that all claims against Stone be dismissed. Doc. 18, at 2-3. The Court also suggested the dismissal of twenty other Defendants, who were named in the stricken Complaint but not in any of the Substituted Complaints.[1] Id. at 4.

         Aiken has now filed a Motion for Summary Judgment, a Brief in Support, and a Statement of Undisputed Facts, arguing that the claim against her also should be dismissed because Richardson failed to exhaust the administrative remedies available at the ADC.[2] Docs. 26, 27 & 28. In response, Richardson filed a Statement of Disputed Facts. Doc. 30. Thus, the issues are joined and ready for disposition.[3]

         II. Discussion

         The Prison Litigation Reform Act (“PLRA”) calls for prisoners to exhaust their administrative remedies before filing a § 1983 action: “No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The purposes of the exhaustion requirement include “allowing a prison to address complaints about the program it administers before being subjected to suit, reducing litigation to the extent complaints are satisfactorily resolved, and improving litigation that does occur by leading to the preparation of a useful record.” Jones v. Bock, 549 U.S. 199, 219 (2007); see also Woodford v. Ngo, 548 U.S. 81, 93-95 (2006).

         The PLRA requires inmates to: (1) fully and properly exhaust their administrative remedies as to each claim in the complaint; and (2) complete the exhaustion process prior to filing an action in federal court. Jones, 549 U.S. at 211, 219-20, 223-24; Woodford, , 548 U.S. at 93-95; Burns v. Eaton, 752 F.3d 1136, 1141-42 (8th Cir. 2014). The PLRA's demand is clear: “If administrative remedies are available, the prisoner must exhaust them.” Chelette v. Harris, 229 F.3d 684, 688 (8th Cir. 2000); see also Woodford, 548 U.S. at 90 (explaining that administrative exhaustion “means using all steps that the agency holds out, and doing so properly so that the agency addresses the issues on the merits”). Thus, to satisfy the PLRA, a prisoner must fully and properly comply with the exhaustion requirements of the incarcerating facility before filing suit.

         To fully and properly exhaust administrative remedies, an ADC prisoner must file: (1) a “Step One” informal resolution raising the claim with the designated unit-level problem-solver; (2) a “Step Two” formal grievance raising that claim; and (3) an appeal to the appropriate ADC Chief Deputy/Deputy/Assistant Director. Doc. 28, Ex. A at 5-13 (ADC Adm. Dir. 14-16 § IV(E) through (G)). The ADC's exhaustion policy requires that, in connection with each claim, an inmate must "specifically name each individual involved," and the grievance forms themselves repeat these instructions to ensure prisoners are aware of them. Id., Ex. A at 4 (§ IV(C)(4)); Doc. 12, at 8. The ADC's exhaustion policy cautions prisoners: "Inmates who fail to name all parties during the grievance process may have their lawsuit or claim dismissed by the court … for failure to exhaust against all parties." Doc. 28, Ex. A at 5 (§ IV(C)(4)).

         Finally, while matters related to disciplinaries are “non-grievable” through the ADC grievance procedure, the policy expressly allows grievances regarding “claims of retaliation, even if related to a [non-grievable] issue, ” such as a disciplinary charge. Id., Ex. A at 2-3 (§ III(G)).

         On January 24, 2017, the day of the incident giving rise to the allegedly retaliatory disciplinary, Richardson submitted Grievance MCP17-00115, alleging that Defendant Stone had displayed “unprofessional staff misconduct, ” and cursed and threatened her.[4] Doc. 12, at 8. A non-party warden responded, stating that, because “appropriate action” had been taken against the officer, Richardson's grievance was “with merit but already resolved.” Id. at 9. Richardson appealed, alleging that she had received a “retaliatory disciplinary” stemming from the January 24, 2017 incident. Id. Her appeal was determined to be without merit. Id. at 10. Thus, nothing in Grievance MCP17-00115 has anything to do with the retaliatory disciplinary claim Richardson is now asserting against Aiken.[5]

         According to ADC records, Richardson has never filed a grievance against Aiken regarding her allegedly retaliatory actions on January 24, 2017.[6] Doc. 28, Ex. B ¶ 21 (Higgins Aff.). Richardson did, however, file grievances against Aiken, after that date, accusing her of retaliatory behavior unrelated to the claim raised in this § 1983 action. Id. ¶ 22. ADC records also show that, during Richardson's incarceration, she has written a “large number” of grievances against various staff members alleging retaliation. Id. ¶ 20.

         Because Richardson did not file any grievances identifying Aiken and claiming she was involved in the issuance of the allegedly retaliatory disciplinary against Richardson on January 24, 2017, the ADC did not reach or decide the merits of the retaliatory disciplinary claim that Richardson is now asserting against Aiken, for the first time, in this § 1983 action. See Jones, 549 U.S. at 219-20 (explaining that one of the purposes of the PLRA is to permit “a prison to address complaints about the program it administers before being subjected to suit”; where prisoner has failed to administratively exhaust “some, but not all, ” of the claims asserted in his § 1983 action, the court “should proceed with the exhausted claims, ” but “no unexhausted claim may be considered”); Burns, 752 F.3d at 1141-42 (affirming dismissal for non-exhaustion where the claims a prisoner raised through the prison's exhaustion procedure were different from the “distinct § 1983 claims” he raised in his federal lawsuit).

         Richardson does not dispute that, before filing this § 1983 lawsuit, she failed to file a separate grievance alleging that Aiken was responsible for the allegedly retaliatory disciplinary on January 24, 2017. Rather, she contends that, through Grievance MCP17-00115 and the ADC disciplinary proceedings, she exhausted her ADC remedies “on the incident at hand, ” which should be sufficient because “it all stemmed from the 01/24/17 incident.” Doc. 30, at 3-5. She points out that, after a non-party correctional officer wrote the Major Disciplinary for Richardson's conduct during the January 24, 2017 incident, Aiken “approved” the charge and referred the matter to the disciplinary committee for a hearing. Richardson further alleges that, during the disciplinary hearing, she “expressed her retaliatory disciplinary issues” to the hearing officer, who ultimately dismissed the charge. Id. at 4-5; see Doc. 17, at 2-6.

         As discussed, Grievance MCP17-00115 was insufficient to exhaust Richardson's retaliation claim against Aiken because it did not name or otherwise identify her, or describe her alleged role in the issuance of a retaliatory disciplinary. Furthermore, the documents reflecting what took place during Richardson's disciplinary proceedings do not support her contention that she identified Aiken as being responsible for the “retaliatory” disciplinary. Doc. 17, at 4. Finally, even if Richardson did identify Aiken during the disciplinary proceeding and explain her alleged role in the issuance of the retaliatory disciplinary, Richardson did not appeal the ...


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