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Stephens v. Does

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

October 1, 2018

LARRY W. STEPHENS, ADC # 103706 PLAINTIFF
v.
DOES, et al. DEFENDANTS

          RECOMMENDED DISPOSITION

         I. Procedures for Filing Objections:

         This 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 Recommendation.

         If no 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.

         II. Discussion:

         A. Background

         Plaintiff 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 problems.[1] (#29)

         Mr. 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 (“Defendants”).[2]

         Defendants 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, #190)

         B. Standard

         Summary 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.

         C. Exhaustion

         The 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”).

         There 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).

         That 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 ...


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