United States District Court, E.D. Arkansas, Pine Bluff Division
FINDINGS AND RECOMMENDATION
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
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.
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.
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
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).
Exhaustion of Administrative Remedies
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.
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.
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.
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). 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).
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
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 ...