United States District Court, E.D. Arkansas, Eastern Division
LARRY W. STEPHENS, ADC # 103706 PLAINTIFF
DOES, et al. DEFENDANTS
Procedures for Filing Objections:
Recommended Disposition (“Recommendation”) has
been sent to Judge James Moody Jr. Any party may file written
objections to this Recommendation. Objections must be
specific and must include the factual or legal basis for the
objection. To be considered, objections must be received in
the office of the Court Clerk within 14 days of this
objections are filed, Judge Moody can adopt this
Recommendation without independently reviewing the record. By
not objecting, the parties may also waive any right to appeal
questions of fact.
Larry W. Stephens, an Arkansas Department of Correction
(“ADC”) inmate, filed this lawsuit without the
help of a lawyer under 42 U.S.C. § 1983. (Docket entries
#1, #4) Mr. Stephens claims that he has been exposed to raw
sewage in his cell at the East Arkansas Maximum Unit since
his arrival there on June 19, 2017, and that his cell was not
adequately sanitized after the sewage leak. (#29) He also
alleges that he was not able to shower from June 27, 2017 to
August 14, 2017 and, therefore, could not clean the sewage
from his body. He alleges that the filth resulted in health
Stephens is proceeding with claims against Defendants Lester
Allen, Tyrone Allison, Jeremy Andrews, Seccer Cole, James
Dycus, Amanda Granger, Wendy Kelley, David Knott, Danny
Norment, M . D. Reed, Valerie Westbrook, and Franklin Graham
have moved for summary judgment based on a failure to exhaust
administrative remedies prior to filing suit. (#170) Mr.
Stephens has responded to the motion, alleging that he was
thwarted from exhausting administrative remedies. (#186,
judgment is granted to a party when the evidence, viewed in
the light most favorable to the nonmoving party, presents no
genuine dispute as to any fact important to the outcome of
the lawsuit. Fed.R.Civ.P. 56; Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). If
important facts remain in dispute, the court cannot grant
summary judgment, and the case is set for a trial.
Court must dismiss any claim that was not fully exhausted
prior to filing a civil lawsuit under 42 U.S.C. § 1983.
See 42 U.S.C. § 1997e(a) (“No action
shall be brought with respect to prison conditions . . . by a
prisoner confined in any jail, prison, or other correctional
facility until such administrative remedies as are available
are exhausted”); Woodford v. Ngo, 548 U.S. 81,
90 (2006) (explaining the proper exhaustion of remedies
“means using all steps that the [prison] holds out, and
doing so properly”); Johnson v. Jones, 340
F.3d 624, 627 (8th Cir. 2003) (holding an inmate must exhaust
all available administrative remedies before filing suit, and
“[i]f exhaustion was not completed at the time of
filing, dismissal is mandatory”).
are exceptions to the exhaustion requirement, but they are
few in number and narrow in scope. For example, an
inmate's subjective belief about futility of the
exhaustion process or his misunderstanding about the process
are irrelevant in determining whether administrative
procedures are available. See Chelette v. Harris,
229 F.3d 684, 688 (8th Cir. 2000).
said, the law only requires exhaustion of “such
administrative remedies as are available.” 42 U.S.C.
§ 1997e(a). The availability of a remedy, according to
the Supreme Court, is about more than just whether an
administrative procedure is “on the books.”
Ross v. Blake, 136 S.Ct. 1850, 1859 (2016). An
administrative remedy is “not capable of use, ”
and therefore unavailable, for example, “when prison
administrators thwart inmates from taking advantage of a
grievance process through machination, misrepresentation, or
intimidation.” Id. at 1859-60. A self-serving
affidavit, however, is not insufficient to show ...