United States District Court, E.D. Arkansas, Pine Bluff Division
REGINALD L. DUNAHUE PLAINTIFF ADC #106911
RANDY WATSON, Warden, Varner Super Max Unit, ADC, et al., DEFENDANTS
Kristine G. Baker United States District Judge
Court has reviewed the Recommended Partial Disposition
submitted by United States Magistrate Judge J. Thomas Ray
(Dkt. No. 92). Plaintiff Reginald Dunahue timely filed
objections to the Recommended Partial Disposition (Dkt. No.
95). After careful review of the Recommended Partial
Disposition, a de novo review of the record, and a
review of all of Mr. Dunahue's objections thereto, the
Court adopts the Recommended Partial Disposition as its
findings in all respects (Dkt. No. 92).
Recommended Partial Disposition recommends dismissal of Mr.
Dunahue's corrective inaction claims against defendants
Randy Watson, Christopher Budnik, and Jeremy Andrews for
failure to exhaust those claims (Dkt. No. 92, 15-16). The
Recommended Partial Disposition also recommends dismissal of
Mr. Dunahue's claim that defendant James Plummer failed
to remove chemical residue from Mr. Dunahue's cell
(Id., at 31). Mr. Dunahue objects to the Recommended
Partial Disposition on various grounds. He objects that
“prison administrators” may be held liable for
the actions of their employees and that he put Mr. Watson
“on notice of excessive or improper uses of force
and/or mace by officers under his watch . . . .” (Dkt.
No. 95, at 4). Mr. Dunahue also argues that, by filing
multiple grievances, he “put the defendants on notice
of officers' unconstitutional practices at Varner.”
discussed in more depth in the Recommended Partial
Disposition, Mr. Dunahue's operative complaint alleges
claims arising out of an incident that occurred on July 19,
2015. The record evidence contains six grievances that refer
to the July 19, 2015, incident (see Dkt. Nos. 4, at
154-56; 33-3, at 1-12). With one exception, none of these
grievances specifically alleged wrongdoing by Mr. Watson, Mr.
Budnik, or Mr. Andrews. While it is true that Grievance VSM
15-03419 named Mr. Watson, this grievance did not assert that
Mr. Watson took or failed to take any action, but rather the
grievance requested that Mr. Watson transfer Mr. Dunahue
(see Dkt. No. 33-3, at 9). Finally, while Mr. Watson
responded to many of Mr. Dunahue's grievances, the Eighth
Circuit Court of Appeals has ruled that “the
reader” or “decision maker” of a grievance
is not a party to the “grieved incident.”
Champion v. Akins, 498 Fed. App'x 670, 670 (8th
Cir. 2013) (unpublished). Accordingly, because Mr. Dunahue
did not exhaust the claims he made in his operative complaint
against Mr. Watson, Mr. Budnik, and Mr. Andrews, the Court
dismisses without prejudice all of Mr. Dunahue's claims
against Mr. Watson, Mr. Budnick, and Mr. Andrews.
upon review of the record, the Court finds that Mr. Dunahue
failed to exhaust his claims that Mr. Plummer violated his
constitutional rights by refusing to remove chemical residue
from his cell. In his operative complaint, Mr. Dunahue
alleges that Mr. Plummer “refused to power wash the
riot control gas and mace from the cell walls and bars of the
cell I was in . . . on 7-19-2015.” (Dkt. No. 7, at 11).
While Grievances VSM 15-03210 and VSM 15-03168 both referred
to Mr. Plummer in reference to this incident, neither of
these grievances contain allegations that Mr. Plummer refused
to have Mr. Dunahue's cell cleaned (see Dkt. No.
33-3, at 1-2, 4-5). Accordingly, for failure to exhaust
administrative remedies, the Court dismisses without
prejudice Mr. Dunahue's claims against Mr. Plummer
arising from Mr. Plummer's alleged failure to remove
chemicals from Mr. Dunahue's cell.
the Court finds that Mr. Dunahue exhausted his claims that
Mr. Plummer, defendant Sedrick Foote, and defendant John
Herrington “hog-tied” him. Accordingly, Mr.
Dunahue may proceed with his claims arising out of this
therefore ordered that:
1. The Court grants in part and denies in part
defendants' motion for partial summary judgment (Dkt. No.
2. The Court dismisses without prejudice all of Mr.
Dunahue's claims against Mr. Watson, Mr. Budnik, and Mr.
3. The Court dismisses without prejudice Mr. Dunahue's
claims against Mr. Plummer arising from Mr. Plummer's
alleged refusal to remove chemical residue from Mr.
4. The Court finds that Mr. Dunahue exhausted his claims that
Mr. Plummer, Mr. Foote, and Mr. Herrington allegedly
“hog-tied” him and that Mr. Dunahue may proceed
with these claims.
5. The Court also finds that Mr. Dunahue may proceed with his
claims for excessive use of force, inadequate medical care,
and inhumane conditions of confinement against Mr. Plummer,
Mr. Herrington, Mr. Malone, and Mr. Foote as identified in
the Court's January 23, 2018, Order (Dkt. No. 57) and to
the extent those claims have been limited by this Order.
6. The Court certifies, pursuant to 28 U.S.C. §
1915(a)(3), that an in forma pauperis appeal from
this Order ...