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Villarreal v. Dewitt

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

September 28, 2018

LETICIA VILLARREAL PLAINTIFF
v.
KENNETH DEWITT, et al. DEFENDANTS

          OPINION AND ORDER

          Kristine G. Baker United States District Court Judge

         Before the Court are the motion for summary judgment filed by defendants Larry Norris, Ray Hobbs, Wendy Kelley, Linda Dixon, Maggie Capel, Linda Dykes, Christopher Budnik, Nurzuhal Faust, and John Maples, collectively the Arkansas Department of Correction Defendants (“ADC defendants”) (Dkt. No. 21), [1] plaintiff Carolyn Arnett's motion for leave to file an executed exhibit No. 10 (Doc. #28-10), INSTANTER (Dkt. No. 31), [2] and Ms. Arnett's motion for leave to file supplemental documents in opposition to ADC defendants' motion for summary judgment (Dkt. No. 33).[3]

         On September 7, 2017, plaintiff Carolyn Arnett filed a complaint pursuant to 42 U.S.C. §§ 1983 and 1985, alleging that she was sexually abused repeatedly by former ADC Chaplain Kenneth Dewitt, that ADC defendants and others failed to protect her from such abuse, and that ADC defendants and others retaliated against her and continue to retaliate against her (Dkt. No. 1).[4] Ms. Arnett seeks compensatory and punitive damages (Id., at 45). On February 7, 2018, ADC defendants filed the present motion seeking a grant of summary judgment on the basis that Ms. Arnett failed to exhaust administrative remedies (Dkt. No. 21).[5] ADC defendants claim that Ms. Arnett has not exhausted any grievances regarding her “specific claims of (a) cruel and unusual punishment; (b) failure to protect, failure to supervise, retaliation; (c) alleged widespread sexual misconduct; or (d) conspiracy” (Dkt. No. 22, at 10).[6] Ms. Arnett opposes the motion (Dkt. No. 28).[7] On March 15, 2018, Ms. Arnett filed a motion for leave to file an executed exhibit No. 10 (Doc. #28-10), INSTANTER (Dkt. No. 31).[8] ADC defendants filed a response in opposition to the motion on the same day (Dkt. No. 32).[9] On March 31, 2018, this Court consolidated Ms. Arnett's case, Arnett v. Norris, et al., No. 1:17-cv-00076-KGB, with Villarreal v. DeWitt, et al., No. 1:16-cv-00163-KGB, and directed all parties to make filings only in the Villarreal case going forward (Dkt. No. 34).[10] On May 22, 2018, Ms. Arnett filed a motion for leave to file supplemental documents in opposition to ADC defendants' motion for summary judgment (Dkt. No. 33).[11] ADC defendants oppose that motion (Dkt. No. 34).[12]

         For the following reasons, the Court grants Ms. Arnett's motion for leave to file an executed Exhibit No. 10 (Doc. #28-10), INSTANTER and Ms. Arnett's motion for leave to file supplemental documents in opposition to ADC defendants' motion for summary judgment, and the Court denies the ADC defendants' motion for summary judgment.

         I. Ms. Arnett's Motion For Leave To File An Executed Exhibit No. 10

         On March 15, 2018, Ms. Arnett filed a motion for leave to file an executed exhibit No. 10 (Doc. #28-10), INSTANTER (Dkt. No. 31).[13] Ms. Arnett attached an unexecuted copy of a similar affidavit to her response to ADC defendants' motion for summary judgment (Dkt. No. 28-10).[14]She explained in her initial response that, as of the time of filing, Ms. Arnett's notarized affidavit had not yet arrived at the office of her counsel but that the notarized affidavit would be submitted to the Court when received (Dkt. No. 28, at 17 n.1).[15] ADC defendants filed a response to Ms. Arnett's motion arguing that Ms. Arnett should not be allowed to file the executed affidavit, or, in the alternative, that ADC defendants should be allowed to file a supplemental reply to address the “discrepancy” between the unexecuted affidavit and the executed affidavit (Dkt. No. 32).[16] Ms. Arnett replied (Dkt. No. 33).[17]

         Ms. Arnett asserts that she was unable to clear the original affidavit through the prison system in time for filing (Dkt. No. 31, ¶ 2). She contends that its content is slightly different to that of the unsigned Exhibit 10 (Dkt. No. 28-10), as she added a portion regarding certain defendants unbeknownst to her (Dkt. No. 31, ¶ 3). In their response to Ms. Arnett's motion for leave to file executed affidavit, ADC defendants argue that Ms. Arnett's proposed executed affidavit is factually different from the unsigned and undated affidavit counsel for Ms. Arnett submitted in response to ADC defendants' motion for summary judgment (Dkt. No. 32, ¶ 1). ADC defendants request leave to file a brief response regarding the discrepancy (Id., ¶ 2). In her reply in support of her motion for leave to file an executed Exhibit No. 10 (Doc. #28-10), INSTANTER, Ms. Arnett contends the affidavit she seeks to file with her motion for leave is merely for completeness and is not prejudicial (Dkt. No. 33). The Court agrees.

         For good cause shown, the Court grants Ms. Arnett's motion for leave to file an executed affidavit (Dkt. No. 31). The Court will consider the executed affidavit in the following discussion.

         II. Ms. Arnett's Motion For Leave To File Supplemental Documents

         On May 22, 2018, Ms. Arnett filed a motion for leave to file supplemental documents in opposition to ADC defendants' motion for summary judgment (Dkt. No. 33).[18] ADC defendants oppose that motion (Dkt. No. 34).[19] Ms. Arnett wishes to file supplemental documents consisting of an affidavit and supporting documents that she alleges substantiate ongoing institutional retaliation against her for coming forward about her abuse (Dkt. No. 33, ¶¶ 1, 2). ADC defendants argue that the supplemental documents Ms. Arnett seeks to file offer nothing on the issue of exhaustion which is the basis of the ADC defendants' motion (Dkt. No. 34, ¶ 3).

         For good cause shown, the Court grants the motion for leave to file supplemental documents in opposition to ADC defendants' motion for summary judgment (Dkt. No. 33). The Court will consider the supplemental documents in the following discussion.

         III. ADC Defendants' Motion For Summary Judgment

         A. Factual Background

         Unless otherwise noted, the following facts are taken from ADC defendants' statement of material facts not in dispute and Ms. Arnett's counter-statement of undisputed material facts (Dkt. Nos. 23, 29).[20]

         Ms. Arnett, ADC #706556, is an inmate incarcerated in the McPherson Unit in Newport, Arkansas, and is serving a sentence of life without parole (Dkt. No. 29, ¶¶ 1, 2). Ms. Arnett entered the Arkansas Department of Corrections (“ADC”) in November 1999 (Id., ¶ 3). ADC defendants contend that, upon entering the ADC, inmates are provided a copy of the Inmate Handbook (Dkt. No. 23, ¶ 4.). Ms. Arnett maintains that she received an Inmate Handbook when she entered McPherson (Dkt. No. 29, ¶ 4). ADC defendants contend that the Inmate Handbook provides the inmate with basic information about the department's policies and procedures and that all department policies, including the inmate grievance policy, are available to inmates in the unit's law library (Dkt. No. 23, ¶ 5). Ms. Arnett admits that her Inmate Handbook provides the guidelines for filing a grievance at McPherson and that the ADC Grievance Policy No. 835 is available in the law library (Dkt. No. 29, ¶ 5). Ms. Arnett was provided with a copy of the Inmate Handbook on November 9, 1999 (Id., ¶ 6). Ms. Arnett avers that she was never given a copy of the ADC Administrative Directives and has never seen or read them (Dkt. No. 28-9).[21]

         Ms. Arnett alleges that former ADC Chaplain Kenneth Dewitt began sexually assaulting her in December 2010 (Dkt. No. 29., ¶ 8) Ms. Arnett claims that Mr. Dewitt sexually assaulted her once a week between December 2010 and June 2012 (Id.). She further claims that Mr. Dewitt increased his assaults against her to twice a week June 2012 until his resignation in September 2014 (Id., ¶ 9). Ms. Arnett alleges that the other named defendants knew, or should have known, about the assaults that were occurring between December 2010 and September 2014, yet the other named defendants did nothing to protect her (Id., ¶ 10).

         ADC defendants submit that the ADC has a policy in place that affords inmates an administrative mechanism for the resolution of complaints, problems, and other issues and that it is called the Inmate Grievance Procedure (Dkt. No. 23, ¶ 11). Ms. Arnett argues that the ADC has such guidelines which are contained in the Inmate Handbook but which are not called the “Inmate Grievance Procedure” nor contained in the ADC Administrative Directive (“AD”) (Dkt. No. 29, ¶ 11). ADC defendants contend that the grievance policy is explained, in detail, in the ADC's Administrative Directives and that the Administrative Directives explain the Administrative Regulations, laws, policies, and establish specific procedures for their implementation throughout the Department (Dkt. No. 23, ¶ 12). Ms. Arnett denies this claim (Dkt. No. 29, ¶ 12). ADC defendants contend that the Administrative Directives are reviewed and may be revised periodically (Dkt. No. 23, ¶ 13). Ms. Arnett asserts that she cannot comment competently on ADC's diligence, or lack thereof, in terms of following their internal employee directives (Dkt. No. 29, ¶ 13). ADC defendants submit that, since December 2010, the ADC has had four Administrative Directives covering the inmate grievance policy: AD 09-01 became effective on January 30, 2009 (it superseded AD 07-03), AD 10-32 became effective on January 1, 2011 (it superseded AD 09-01), AD 12-16 became effective on May 28, 2012 (it superseded AD 10-32), and AD 14-16 became effective on April 11, 2014 (it superseded AD 12-16) (Dkt. No. 23, ¶ 14). ADC defendants contend that AD 14-16 is the current inmate grievance policy (Dkt. No. 23, ¶ 15). Ms. Arnett denies that AD 14-16 is the current inmate grievance policy and argues that AD 14-16 is an internal employee directive which she has never seen (Dkt. No. 29, ¶¶ 14, 15). Instead, she submits that the current inmate grievance policy is found in the Inmate Handbook and in the ADC Grievance Policy No. 835 as the current inmate grievance policy (Id., ¶ 11; Dkt. Nos. 28, at 9; 28-5; 28-9).

         ADC defendants contend that the ADC grievance policy instructs an inmate to file a grievance if he or she believes that he or she has been wronged (Dkt. No. 23, ¶ 16). Ms. Arnett admits that, under the “Prison Rape Elimination Act” provision of her Inmate Handbook, she was instructed not to be a silent victim of sexual assault or rape (Dkt. No. 29, ¶ 16). ADC defendants assert that the inmate grievance procedure is a multi-step policy (Dkt. No. 23, ¶17). Ms. Arnett denies this allegation (Dkt. No. 29, ¶ 17). ADC defendants assert that Step One of the ADC grievance policy instructs an inmate to file an Informal Resolution within 15 days after the occurrence of an incident (Dkt. No. 23, ¶ 18). Ms. Arnett denies this allegation and cites grievance number MCP-17-00010, which she filed on January 10, 2017, and which does not include the instruction to file an Informal Resolution within 15 days after the occurrence of an incident (Dkt. No. 29, ¶ 18). Ms. Arnett contends that the Inmate Handbook does provide guidelines on the “Informal Resolution Form” (Id.). ADC defendants contend that the inmate is to write, in the space provided on the form, a brief statement that is 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 (Dkt. No. 23, ¶ 19). Ms. Arnett denies this allegation and asserts that this information is provided on the grievance form itself (Dkt. No. 29, ¶ 19). ADC defendants contend that the Informal Resolution should be presented to a designated problem-solver who will respond to the Informal Resolution according to the time limits stated in the policy (Dkt. No. 23, ¶¶ 20, 21). Ms. Arnett denies that the Informal Resolution should be presented to a designated problem-solver and cites as the materials she consulted an excerpt from the Inmate Handbook and an excerpt from the ADC Grievance Policy No. 835 (Dkt. No. 29, ¶ 20). As to the January 10, 2017, grievance, Ms. Arnett contends that grievance did not require a designated problem-solver (Id.).

         ADC defendants state that, if the inmate is not satisfied with the response to the Informal Resolution, [22] the inmate is then allowed to proceed to Step Two of the process, which is the formal Grievance Procedure (Dkt. No. 23, ¶ 22). According to ADC defendants, a grieving inmate is to receive a response to the formal grievance (Step Two) from the warden or warden's designee, within 20 working days of receipt (or less if it is an emergency situation) (Id., ¶ 23). ADC defendants contend that, upon response from the warden or his designee, if the inmate does not agree with the decision, the inmate is to appeal within five days to the Chief Deputy Director or Assistant Director's Level (Id., ¶ 24). ADC defendants maintain that, even if the inmate receives no response from the warden after the expiration of 20 days, the inmate is allowed to appeal promptly (Id., ¶ 25).

         In response to the ADC defendants' explanation of the grievance process, Ms. Arnett contends that she cannot comment competently on the ADC's diligence, or lack thereof, in terms of following their internal employee directives (Dkt. No. 29, ¶¶ 22, 23, 24). Ms. Arnett denies that the Administrative Directive 14-16 serves as a guideline for inmates (Id., ¶ 24). She cites her March 1, 2018, affidavit in which she alleges that the Inmate Handbook has a section entitled Grievances which describes the process for inmates who wish to file a formal grievance (Id., ¶¶ 24, 25).

         ADC defendants contend that the Chief Deputy, Deputy, or Assistant Director will respond in writing to the inmate concerning the decision within 30 working days and that the entire grievance procedure should be completed within 76 working days (Dkt. No. 23, ¶¶ 26, 27). ADC defendants allege that a grievance is exhausted once the Deputy Director has responded to the inmate's appeal (Id., ¶ 28). Ms. Arnett denies that Administrative Directive 14-16 serves as a guideline for inmates (Dkt. No. 29, ¶¶ 26, 27). Ms. Arnett denies that the grievance procedure is exhausted once the Deputy Director has responded to the inmate's appeal and instead maintains that her grievance was exhausted without the Deputy Director ever responding to any appeal (Id., ¶ 28). Ms. Arnett contends that there was no appeal because she did not challenge Warden A. Fitzgerald's determination that her January 10, 2017, grievance had merit (Id.).

         ADC defendants assert that the grievance policy allows an inmate to skip Step One of the grievance process and go directly to Step Two if the inmate believes the issue to be emergent (Dkt. No. 23, ¶ 31). ADC defendants submit that the grievance policy defines an “emergency” as:

a problem, that if not immediately addressed, subjects the inmate to a substantial risk of personal injury or other serious and irreparable harm such as sexual assault, physical abuse, sexual misconduct or sexual harassment. Emergency grievances may be submitted without the completion of step one, the informal process; however, if the grievance is found to not involve a substantial risk of personal injury or serious and irreparable harm, it will be returned to the problem solver and processed under Step One.

(Id., ¶ 29; Dkt. No. 23-2, at 2). ADC defendants contend that designating a grievance as an emergency does not obviate the inmate's need or requirement to file a grievance; however, it streamlines the reporting process for the inmate, which allows the issue to be brought to the attention of staff sooner (Id., ¶ 30). Ms. Arnett denies that Administrative Directive 14-16 serves as a guideline for inmates (Dkt. No. 29, ¶ 31).

         ADC defendants assert that inmates are notified in at least three separate sections of the grievance policies that exhaustion of their administrative remedies is required prior to filing a § 1983 lawsuit (Dkt. No. 23, ¶ 32). Ms. Arnett denies this allegation and asserts that McPherson grievance guidelines and policies are found in two locations: the Inmate Handbook and the ADC Grievance Policy No. 835 (Dkt. No. 29, ¶ 32).

         Rose Higgins is the Inmate Grievance coordinator at the McPherson Unit for the Arkansas Department of Correction (Dkt. No. 23, ¶ 33). ADC defendants assert that Ms. Higgins has reviewed Ms. Arnett's grievance history for purposes of this litigation (Id., ¶ 34). Ms. Arnett denies that Ms. Higgins has reviewed Ms. Arnett's grievance history for purposes of this litigation, citing two grievances Ms. Arnett filed in 2017 which are not referenced in Ms. Higgins' affidavit and claiming, had Ms. Higgins reviewed Ms. Arnett's grievance history for purposes of this litigation, she would have cited these grievances (Dkt. No. 29, ¶ 34).

         ADC defendants maintain that, prior to 2010, Ms. Arnett did not file any Informal Resolutions or formal grievances (Dkt. No. 23, ¶ 35). During the year 2010, Ms. Arnett submitted two (Id., ¶ 36). Both were submitted on April 8, 2010 (Id.). In Ms. Arnett's first Informal Resolution, she complained about comments allegedly made to her by Sgt. Arnold, a non-party (Id., ¶ 37). Sgt. Michael Dickinson, a non-party, responded to Ms. Arnett's Informal Resolution on April 12, 2010 (Id., ¶ 38). Dissatisfied with Sgt. Dickinson's response, Ms. Arnett proceeded to Step Two of the grievance procedure that same day (Id., ¶ 39). Ms. Higgins received the grievance the following day and assigned it the number of MCP-10-00340 (Id., ¶ 40). ADC defendants contend that grievances are assigned numerical numbers in the order in which they are received by Ms. Higgins' office (Id., ¶ 41).[23] Ms. Arnett alleges that she cannot comment competently on Ms. Higgins' diligence, or lack thereof, in terms of following ADC internal employee directives (Dkt. No. 29, ¶ 41). Ms. Higgins informed Ms. Arnett, in writing, that her grievance would be addressed by the Warden or Center Supervisor or designee by May 11, 2010 (Dkt. No. 23, ¶ 42). Warden Maples responded to Ms. Arnett's appeal of grievance MCP-10-00340 on May 6, 2010 (Dkt. No. 29, ¶ 43). Ms. Arnett chose not to appeal Warden Maples' decision (Id., ¶ 44). Ms. Arnett did not allege in grievance MCP-10-00340 that she was being sexually assaulted by Chaplain Dewitt (Id., ¶ 45).

         In Ms. Arnett's second Informal Resolution, she again complained about Sgt. Arnold's comments and how they made her feel (Id., ¶ 46). Sgt. Michael Dickinson responded to Ms. Arnett's Informal Resolution on April 12, 2010 (Id., ¶ 47). Dissatisfied with Sgt. Dickinson's response, Ms. Arnett proceeded to Step Two of the grievance procedure that same day (Id., ¶ 48). Ms. Higgins received the grievance the following day and assigned it the number of MCP-10-00341 (Id., ¶ 49). Ms. Higgins informed Ms. Arnett, in writing, that her grievance would be addressed by the Warden or Center Supervisor or designee by May 11, 2010 (Id., ¶ 50). Warden Maples responded to Ms. Arnett's appeal of grievance MCP-10-00341 on May 2, 2010 (Id., ¶ 51). Ms. Arnett chose not to appeal Warden Maples' decision (Id., ¶ 52). Ms. Arnett did not allege in grievance MCP-10-00341 that she was being sexually assaulted by Chaplain Dewitt (Id., ¶ 53).

         Ms. Arnett did not file any Informal Resolutions or formal grievances in 2011 or in 2012 (Id., ¶¶ 54-55). In 2013, Ms. Arnett submitted two (Id., ¶ 56). On October 15, 2013, Ms. Arnett submitted an Informal Resolution regarding medical issues (Id., ¶ 57). It was marked for medical, and medical personnel responded to the Informal Resolution on October 18, 2013 (Id., ¶ 58). Ms. Arnett proceeded to Step Two of the process and submitted it as a formal grievance (Id., ¶ 59). The formal grievance was received in the Grievance Office on October 21, 2013 (Id., ¶ 60). It was assigned number MCP-13-01015 (Id.). Because the grievance was of a medical nature, it was forwarded, pursuant to policy, to the Health Services Administrator for a response (Id.). The Health Services Administrator responded to grievance MCP-13-01015 on November 14, 2013 (Id., ¶ 61). Ms. Arnett did not appeal the Health Services Administrator's response to grievance MCP-13-01015 (Id., ¶ 62). Ms. Arnett did not allege in grievance MCP-13-01015 that she was being sexually assaulted by Chaplain Dewitt (Id., ¶ 63).

         The second 2013 Informal Resolution was submitted by Ms. Arnett on November 4, 2013 (Id., ¶ 64). In it, she addressed a medical issue (Id.). Her Informal Resolution was addressed by the medical department on November 7, 2013 (Id., ¶ 65). Ms. Arnett proceeded to Step Two of the grievance process on November 8, 2013 (Id., ¶ 66). The formal grievance was received in the Grievance Office on November 12, 2013, and it was assigned number MCP-13-01067 (Id., ¶¶ 67, 68). Because the grievance was of a medical nature, it was forwarded, pursuant to policy, to the Health Services Administrator for a response (Id., ¶ 69). The Health Services Administrator responded to the grievance MCP-13-01067 on November 14, 2013 (Id., ¶ 70). Ms. Arnett did not appeal the Health Services Administrator's response to grievance MCP-13-01067, nor did she allege in grievance MCP-13-01067 that she was being sexually assaulted by Chaplain Dewitt (Id., ¶¶ 71, 72).

         ADC defendants contend that Ms. Arnett did not file any Informal Resolutions or formal grievances in 2014 (Dkt. No. 23, ¶ 73). Ms. Arnett denies this allegation and asserts that she attempted to file a grievance in December 2014 but was prevented from doing so by certain defendants (Dkt. No. 29, ¶ 73). In support of this assertion, Ms. Arnett cites grievance number MCP-17-00010 and a witness statement she wrote on December 29, 2014, signed by ADC defendant Linda Dykes (Id.). In MCP-17-00010, Ms. Arnett wrote

I have been an inmate since 1999 here at McPherson. Between the years of 2010 to 2014 I was a victim of repeated sexual assault and misconduct, and physical and mental abuse caused by Kenneth Dewitt. I was also a victim of retaliation after I reported the abuse. Those who retaliated against me include Kenneth Dewitt, members of his family, Stacey Smith, Jennifer Smith, Chaplain Yancey, Nurzuhal Faust, Linda Dixon, Linda Dykes, and I also believe prison staff failed to protect me from this misconduct dispite [sic] awareness of this misconduct. This matter was brought to the attention of ADC in late 2014, and I wrote out several witness statements. In the event that my statements were not part of a formal grievance process, I request that one be initiated now.

(Dkt. No. 28-1, at 1).[24]

         In a witness statement written on December 29, 2014, Ms. Arnett wrote:

About December 2010 Chaplain Dewitt began to talk to me in a way of being sexual asking me about my desires concerning men, do I ever have or have I had a desire towards him. He told me that it was that it was [sic] normal because the training is like that of a wife. After a few of these conversations he began to touch me and tell me it was okay and he began to initiate me touching him with his hands. It led to a process of a one sided physical relationship of oral sex with him for a while and then he began to touch me however I guess I didn't respond right because he would make fun of me and make statements like Oh my God your [sic] a virgin, and I cried when he tried to masterbate [sic] with me that was really hard because he said I didn't know anything because I couldn't tell him if I climaxed. From there I would try by his statements of what I wasn't doing right to try to figure out what he wanted and from then on thats [sic] what I tried to do. Things began to get worse over a process of time he began to bring in birth control suppositories from the free world they would be hidden in his groin area by his zipper when the physical sex started out a year and a half ago. I was sitting in the barracks one Sunday morning and had a weird feeling something was up and I walked down the hall to the chaplain's office and caught him with Inmate L. MacKool having sex. I did not say anything right then but the next morning there was a mess in the floor and I went in and cleaned it up and he asked me what I was doing it trailed from the office door to around his desk. I told him I was cleaning up his mess later that afternoon I asked him about it and I told him I knew what I was cleaning up this morning he said, “I'm a chaplain, and I meet needs, ” he told me not to say anything or I would destroy the program. I felt trapped, I let fear shut my mouth. Later on I was coming out from work and L. MacKool was with me and I was out first when I walked up to the door I saw him with L. Villarreal acting out sexually and walked back through the gate and called Leslie out loud within seconds he was out the door instructing me to go get [illegible] for our visitors that were coming. He was very aggressive with me in the way he talked to me one day he back [sic] me up in the office and I was crying and he told me that he would put me out of the program, they didn't need me and I was replaceable, how dare I challenge him I quickly cowered down like always and asked him to forgive me, he told me to remember what he said. He used my fears against me to control me because he knew how much the program meant to me. I kept my mouth shut. There was a confrontation about Mr. Dewitt and Stacey Smith that happened in the free world about their physical relationship. Chaplain Stacey Smith came in the office while Chaplain Dewitt was gone to Utah about 2 weeks before he retired and Chaplain Smith confronted me, L. Villarreal, and L. MacKool about our sexual relationships in the office with Mr. Dewitt. She said he called her from Utah and told her he was going to prison and told her he had a physical relationship with all of us. She asked me what was going on in the office. I said whats [sic] not been going on in the office. I told her about my part of the physical relationship with Mr. Dewitt. She told me she forgave me like I did something wrong to her. At one time me and MacKool were having problems. I told her that I couldn't keep working in the office with the way things I had to deal with like Leslie standing behind me raising her shirt rubbing her stomach looking at Mr. Dewitt. She told me that I had to understand she was in training like a wife and she understood her struggles.

(Dkt. No. 28-6).[25]

         Underneath Ms. Arnett's statement, a handwritten notation reads: “This issue was stopped per Internal Affairs” (Id., at 3). It is unclear from the record who wrote this handwritten notation. ADC defendants contend that Ms. Arnett did not notify anyone of Mr. Dewitt's actions toward her until December 2014, when she shared the information with another inmate (Dkt. No. 23, ¶ 74). Ms. Arnett asserts that she did not notify ADC staff about her abuse until December 2014 (Dkt. No. 29, ¶ 74).

         ADC defendants contend that, if an inmate such as Ms. Arnett appeals the Warden's decision or the Health Services Administrator's decision, the appeal is forwarded by the inmate to the ADC's Central Office, where the appeal is directed to the Deputy or Assistant Director over the unit (Dkt. No. 23, ¶ 75). Ms. Arnett maintains that she cannot comment competently on the ADC's diligence, or lack thereof, in terms of following their internal employee directives (Dkt. No. 29, ¶ 75).

         Ms. Arnett also maintains that she wrote a second witness statement on February 10, 2016 (Dkt. No. 28-7).[26] This statement refers to a conversation Ms. Arnett alleges she had with defendant Jennifer Smith in July 2015 regarding the Dewitt family's ongoing involvement in ministry.

         On May 22, 2018, Ms. Arnett filed a motion for leave to file supplemental documents in opposition to ADC defendants' motion for summary judgment (Dkt. No. 33).[27] The supplemental documents consist of an affidavit and supporting documents (Id.). In her May 15, 2018, affidavit, Ms. Arnett alleges that she was “stripped on the way out in the officers [sic] bathroom with no cameras and on the way back in I was told I had to be on camera” which “made [her] feel violated” and was “mortifying” “[i]n light of what [she has] experienced in regards to being violated [] in prison” (Dkt. No. 33-1, at 1). On January 18, 2018, Ms. Arnett filed a grievance based on this experience which was assigned grievance number MCP-18-00104 (Id.). She filed another grievance on January 30, 2018, after she had a sick call and did not start to feel better but “[medical] still would not see [her]” (Id., at 2). This grievance was assigned number MCP-18-00137 (Id., at 8). Ms. Arnett was not called down to medical until February 27, 2018 (Id., at 2-3).

         On April 25, 2018, Ms. Arnett filed a grievance because she had not received the results of her January 2018 surgery despite “speaking with everyone possible in attempt to get [her] results in regards to [her] surgery to no avail” (Id., at 3-4). Ms. Arnett alleges that she spoke with “Mrs. Baiza, Mrs. Bledsoe, Dr. Hughes, and Mr. Bernard Williams all on more than one occasion [sic]” and “wrote on at least 2 of [her] sick calls in the process that [she] had not received [her] results” (Id., at 4). According to Ms. Arnett, “Mr. Bernard Williams in the presence of Mrs. Baiza on 4-12-18 said he would get [her] results that afternoon” (Id.). After 15 days, “[she] wrote a grievance due to still no response” (Id.). This grievance was assigned number MCP-18-00564 (Id.).

         On May 3, 2018, Ms. Arnett wrote another grievance because “[she] still had not got [sic] a response to grievance (MCP-18-00564)” (Id., at 5). After speaking with Ms. Baiza on May 8, 2018, Ms. Arnett “dropped both grievances [Ms. Baiza] gave back to [Ms. Arnett] (MCP-18-00563-MCP-18-00564) in the grievance box together on 5-8-18 for second step” (Id.). Ms. Arnett “only received acknowledgement for grievance (MCP-18-00563) in which [she] wrote for not responding to [her] original grievance (MCP-18-00564), ” but she “dropped a request to the grievance officer on 5-9-18” (Id.). Ms. Arnett “only wrote grievance MCP-18-00563 because once again, [she] was not getting a response in regards to [her] medical needs” (Id., at 6). Ms. Arnett states she is “being retaliated against for reporting prison misconduct” (Id.).

         In their response in opposition to plaintiff's motion for leave to file supplemental documents in opposition to motion for summary judgment, ADC defendants argue that Ms. Arnett attached three nonexhausted grievances and one Inmate Request Form in support of her affidavit (Dkt. No. 34, ¶ 5).[28] ADC defendants contend that all three nonexhausted grievances pertain to medical issues and non-ADC staff members and that Ms. Arnett does not allege she is being retaliated against for reporting Mr. Dewitt's actions in December 2014 in the three 2018 nonexhausted grievances (Id., ΒΆ 6). ADC ...


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