United States District Court, E.D. Arkansas, Pine Bluff Division
KRISTINE G. BAKER UNITED STATES DISTRICT JUDGE
the Court is the Recommended Disposition submitted by United
States Magistrate Judge Beth Deere (Dkt. No. 33). Plaintiff
Mark Daniel Crowley filed timely objections to the
Recommended Disposition (Dkt. Nos. 34, 35). After careful
consideration of the Recommended Disposition, Mr.
Crowley's objections, and a de novo review of
the record, the Court concludes that the Recommended
Disposition should be, and hereby is, approved and adopted in
its entirety as this Court's findings in all respects
(Dkt. No. 33). Further, the Court denies as moot Mr.
Crowley's motion for status report (Dkt. No. 36).
Court writes separately to address Mr. Crowley's
objections (Dkt. Nos. 34, 35). In his objections filed on
September 27, 2018, Mr. Crowley argues that his case falls
under the exceptions for exhaustion of administrative
remedies because prison officials failed to comply with
administrative procedures (Dkt. No. 34, at 2-3). Mr. Crowley
further argues that his next administrative remedy was to
file a “Step Three” grievance because the
“Emergency Grievance” that he filed automatically
counts as a “Step Two” grievance (Id.,
at 5-6). In his objection filed on September 28, 2018, Mr.
Crowley argues that he could not pursue a “Step
3” grievance until he first received a response from
the prison officials regarding his “Emergency
Grievance” (Dkt. No. 35, at 1).
Court must dismiss any claim that was not fully exhausted
before the date a complaint was filed. 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”). There are exceptions to the exhaustion
requirement. For example, prisoners can be excused from
exhausting administrative remedies when correction officials
have prevented them from using grievance procedures or when
officials have themselves failed to comply with
administrative procedures. Miller v. Norris, 247
F.3d 736, 740 (8th Cir. 2001); Foulk v. Charrier,
262 F.3d 687, 697-98 (8th Cir. 2001). An inmate's
subjective belief about the effectiveness of the grievance
process does not excuse a failure to exhaust, nor does
confusion about exhaustion requirements excuse a failure to
exhaust. Chelette v. Harris, 229 F.3d 684, 688 (8th
Crowley again attached the grievances that he filed on June
15, 2018, and August 1, 2018 (Dkt. No. 34, at 8-10). On those
grievance forms, Mr. Crowley had the option of filing a
“Step One, ” “Step Two, ” or
“Emergency Grievance.” (Id.). Mr.
Crowley's grievance from June 15, 2018, was labeled as
both “Step One” and “Emergency Grievance,
” and his grievance from August 1, 2018, was labeled as
“Step One.” (Id.). As Judge Deere
explained in the Recommended Disposition, an “Emergency
Grievance” can count as a “Step Two, ” or a
formal grievance, if a problem solver determines that an
emergency grievance presents a true emergency (Dkt. No. 33,
at 3). If that determination is made, prison officials must
take “corrective action” within 24 hours of the
grievance being filed (Id.). “[H]owever, 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.” (Dkt. No. 20-1, Inmate Grievance Procedure, Ex.
A, at 2).
to Mr. Crowley, he did not receive a response within 24 hours
from prison officials to the “Emergency
Grievance” he filed on June 15, 2018 (Dkt. No. 34, at
1). If prison officials determine that there is not a
substantial risk of personal injury or serious and
irreparable harm, they are not required to respond to an
“Emergency Grievance” within 24 hours (Dkt. No.
20-1, Inmate Grievance Procedure, Ex. A, at 2, 6). In that
situation, which applies to this case, the grievance is
treated as a “Step 1, ” or informal process, and
prison officials are required to process the grievance
“within the normal time limits.” (Id.).
Therefore, the Court finds that prison officials complied
with administrative procedures.
on the record before the Court, Mr. Crowley has not presented
a grievance form indicating that he filed a “Step
Two” grievance. Mr. Crowley has also not presented any
evidence that prison officials did not allow him to file a
“Step Two” grievance. Even though he did not
receive a response regarding his “Emergency Grievance,
” the “Step Two” grievance was available to
Mr. Crowley; he could have used the same grievance form that
he filed previously to file his “Step Two.”
See Miller, 247 F.3d at 740 (finding that §
1997e(a) “does not require exhaustion of all
remedies; it requires the exhaustion of ‘such
administrative remedies as are available.'”).
Further, Mr. Crowley's allegations do not support a claim
that a prison official prevented him from taking this action.
Therefore, Mr. Crowley failed to exhaust his administrative
remedies by failing to file a “Step Two”
Court grants defendants Maqez Nailor, Patrick Pierre, Kenneth
Starks, William Straughn, and Latoya Woods' motion for
summary judgment (Dkt. No. 19). Mr. Crowley's complaint
is dismissed without prejudice (Dkt. No. 2). The Court ...