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Munnerlyn v. Iko

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

August 7, 2018

ROBERT HAROLD MUNNERLYN ADC #86196 PLAINTIFF
v.
OJIUGO IKO, et al. DEFENDANTS

          FINDINGS AND RECOMMENDATION

         INSTRUCTIONS

         The following proposed Findings and Recommendation have been sent to United States District Judge Susan Webber Wright. 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 fact.

         DISPOSITION

         I. Introduction

         Plaintiff Robert Harold Munnerlyn filed a complaint pursuant to 42 U.S.C. § 1983 on April 18, 2017 (Doc. No. 2). On May 5, 2017, he filed an amended complaint (Doc. No. 8). Munnerlyn sues Rory Griffin, Correct Care Solutions (CCS), and Dr. Ojiugo Iko in both their official and individual capacities. Doc. No. 8 at 2. Munnerlyn's claims against CCS were previously dismissed. See Doc. Nos. 77 & 83. Munnerlyn alleges that the Defendants were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment to the United States Constitution. Id. at 11. Munnerlyn also alleges that Dr. Iko's actions constitute the tort of negligence and intentional infliction of emotional distress under Arkansas law. Id. Munnerlyn additionally claims that Griffin is liable because he failed to take corrective action. Id. at 11-12. Munnerlyn seeks both injunctive relief and money damages. Id. at 12-14.

         Munnerlyn specifically alleges that despite a medical history showing he should not be on work duty and prior restrictions that kept him off work duty, he was assigned to field utility from May 8, 2014, until September 18, 2014. Id. at 5. Munnerlyn alleges that he sought medical attention for various conditions that were aggravated by his field duty. Id. at 7-8. He complains that Dr. Iko denied his request to see a specialist regarding a heel spur and special footwear he believed he needed, and that she provided him with an ineffective ankle brace instead. Id. at 8. Munnerlyn also alleges that Dr. Iko diagnosed him with a reoccurrence of skin cancer in 2011 but never ensured that he was referred to a specialist. Id. Munnerlyn asserts he was finally diagnosed with skin cancer again on June 9, 2015, and that the delay in diagnosis resulted in metastasis of the cancer and a more invasive procedure to remove it than would have been required had it been diagnosed earlier. Id. at 8-9. Finally, Munnerlyn claims that Dr. Iko failed to provide him with appropriate pain medication following the removal of the cancer. Id. at 10.

         Before the Court are motions for summary judgment and related pleadings filed by Griffin and Dr. Iko, claiming that Munnerlyn did not exhaust his claims against them before he filed this lawsuit (Doc. Nos. 40-42, 65-67). Munnerlyn responded to both motions. See Doc. Nos. 49-52, 69-71. Dr. Iko filed a reply (Doc. No. 54); Griffin filed a reply (Doc. No. 72); and Munnerlyn filed additional responses (Doc. Nos. 73 & 74). The Court held an evidentiary hearing on July 29, 2018, to obtain more information regarding three grievances filed by Munnerlyn: VU-14-1325, VU-15-1432, and VU-15-1433. For the reasons described herein, the undersigned recommends granting the pending motions for summary judgment.

         II. Legal Standard

         Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is proper if “the movant shows that there is no genuine dispute 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(a); 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). An assertion that a fact cannot be disputed or is genuinely disputed must be supported by materials in the record such as “depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials . . .”. Fed.R.Civ.P. 56(c)(1)(A). A party may also show that a fact is disputed or undisputed by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1)(B). 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).

         III. Analysis

         A. Exhaustion of Administrative Remedies

         Dr. Iko and Griffin argue they are entitled to summary judgment because Munnerlyn failed to exhaust his administrative remedies as to his claims against them before he filed this lawsuit. The 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); Burns v. Eaton, 752 F.3d 1136, 1141 (8th Cir. 2014). Specifically, § 1997e(a) provides:

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). Exhaustion under the PLRA is mandatory. Jones v. Bock, 549 U.S. at 211; Hammett v. Cofield, 681 F.3d 945, 949 (8th Cir. 2012). “[T]he 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.

         Pursuant to the ADC's grievance policy, inmates are provided Unit Level Grievance Forms as part of the Inmate Grievance Procedure. See Doc. No. 42-1 at 6. 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 7. Inmates are to “specifically name each individual involved for a proper investigation and response to be completed by the ADC.” Id. at 6. 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 7-8. A problem solver investigates the complaint and provides a written response at the bottom of the form. Id. at 8-9. 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 10. If a formal grievance is medical in nature, it is forwarded to the appropriate medical personnel for response. Id. at 11. If the inmate receives no response, or if the inmate is not satisfied with the response, the inmate can appeal to the Deputy Director for Health and Correctional Programs. Id. at 12-13. An inmate's appeal must be written in the space provided on the Health Services Response to Unit Level Grievance Form or the Acknowledgment or Rejection of Unit Level Grievance. Id. at 13. The ADC inmate grievance policy informs the inmates that only what is written in the space provided for appeal will be considered part of the grievance appeal, and that additional sheets should not be attached and will be returned to the inmate upon receipt of the appeal or as soon as practical. Id. The inmate must include the original Unit Level Grievance Form (Attachment I) and either the Health Services Response to Unit Level Grievance Form (Attachment IV) or the Acknowledgement or Rejection of the Unit Level Grievance (Attachment II) with his appeal. Id. If an inmate fails to submit either of the two pages with his appeal, the appeal may be returned to the inmate as rejected. Id.

         Once the Deputy Director responds, the grievance process is exhausted. Id. at 14. 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 15. 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 19.

         B. The Grievances

         The parties agree that Munnerlyn fully exhausted two grievances relating to his medical care before he filed this lawsuit: VU-14-644 (complaining about lack of sun protection while working) and VU-14-701 (complaining about pain and asking to be seen by a specialist).[1] See Doc. No. 42 at 27-32. Both of these grievances were previously discussed in the Court's Proposed Findings and Partial Recommendation entered on June 1, 2018. See Doc. No. 77. Neither grievance names Dr. Iko or Griffin, describes their behavior, or otherwise provides the ADC with any reason to investigate their behavior. Accordingly, neither grievance serves to exhaust Munnerlyn's claims against Dr. Iko or Griffin. See generally Burns v. Eaton, 752 F.3d 1136 (8th Cir. 2014) (the Court affirmed the dismissal of a claim against a defendant who was not named in the grievance and whose conduct was not addressed in the grievance); see also Daniels v. Hubbard, No. 5:14CV00360 BSM, 2015 WL 9222627, at *1-2 (E.D. Ark. Dec. 17, 2015) (The failure to name a defendant as required by the ADC grievance policy may constitute a procedural defect that is waived if the defendant's conduct forming the basis of the claim against him or her is adequately described in the grievance and the failure to name the defendant does not prevent the ADC from investigating the grievance on the merits).

         Munnerlyn asserts that he also exhausted (or should be excused from exhausting) the following grievances: VU-14-1325; VU-14-1125; VU-15-1432; and VU-15-1433. The first three grievances name Dr. Iko and the last grievance names Griffin. Dr. Iko and Griffin argue that Munnerlyn failed to follow required ADC policy with respect to appealing these grievances, and that they are therefore not exhausted. Each grievance is discussed below.

         VU-14-1125

         Munnerlyn submitted VU-14-1125 on August 18, 2014, stating:

ON 8-13-14 I WAS SEEN BY DR. IKO, I EXPLAINED TO HER THAT MY MEDS WERE NOT WORKING DUE TO MORE STRENUOUS DUTY WAS REQUIRED OF ME AND THAT THE SLEEVE/BRACE THAT SHE ISSUED ME WAS CUTTING THE CIRCULATION TO MY TOES OFF AND MY FOOT WAS SWOLLEN. I ALSO INFORMED HER THAT THIS SLEEVE/BRACE WAS NOT KEEPING MY ANKLE FROM OVEREXTENDING FROM SIDE-TO-SIDE LIKE MY RIGID BRACE THAT WAS PREVIOUSLY ISSUED TO ME DID, LEAVING MY TENDONS AND LIGAMENTS INFLAMED. SHE JUST SMILED AND SAID THAT SHE GUESSED THAT THE FIRST SLEEVE/BRACE WAS TOO SMALL AND SHE ORDERED ME A LARGER ONE, WITHOUT ADDRESSING THE STABILITY PROBLEM. DR. IKO IS EXPERIMENTING ON ME INSTEAD OF ALLOWING DR. SHOCK OR OTHER BONE/LIGAMENT SPECIALIST TO EVALUATE MY MEDICAL ISSUES. WITHOUT INTERVENTION, I WILL BE REQUIRED TO GO TO WORK IN THE FIELD WITHOUT PROPER SUPPORT FOR MY ANKLE. DR. IKO'S EVALUATION AND TREATMENT OF MY MEDICAL NEEDS COULD BE DEEMED DELIBERATELY INDIFFERENT. I ALSO ASKED HER ABOUT MY 20 LB WEIGHT LIMITATION. AS THE FIELD RIDER REQUIRES LIFTING 30-40 LB BAGS OF PRODUCE AND CARRYING THEM 300-400 YDS ON MY BAD ANKLE. SHE SAID THAT THE 20 LB LIMITATION WAS ONLY FOR HERNIAS. I TOLD HER I ...

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