United States District Court, E.D. Arkansas, Pine Bluff Division
FINDINGS AND RECOMMENDATION
INSTRUCTIONS
The
following proposed Findings and Recommendation have been sent
to United States District Judge D.P. Marshall Jr. You may
file written objections to all or part of this
Recommendation. If you do so, those objections must: (1)
specifically explain the factual and/or legal basis for your
objection, and (2) be received by the Clerk of this Court
within fourteen (14) days of this Recommendation. By not
objecting, you may waive the right to appeal questions of
fact.
DISPOSITION
I.
Introduction
Plaintiff
Pedro Johnson, who is currently held at the Arkansas
Department of Correction's East Arkansas Regional Unit,
filed a pro se complaint pursuant to 42 U.S.C.
§ 1983 on December 11, 2017, naming Ronald Bailey, Joe
Page, III, Linda Dykes, and Marshall Dale Reed as defendants
(Doc. No. 2). Johnson later amended his complaint to add
Corporal Cathy Paulk as a defendant (Doc. No. 18). Johnson
alleges defendants failed to protect him from a sexual
assault by another inmate on July 19, 2017. Doc. No. 2 &
18.
Defendants
Bailey, Page, Dykes, and Reed filed a motion for summary
judgment, a brief in support, and a statement of facts
claiming that Johnson had not exhausted claims against them
before he filed this lawsuit (Doc. Nos. 29-31). Johnson filed
a response to the defendants' motion (Doc. No. 32). After
she was served, defendant Paulk also filed a motion for
summary judgment, a brief in support, and a statement of
facts claiming that Johnson had not exhausted claims against
her before he filed this lawsuit (Doc. Nos. 40-42). Johnson
filed several pleadings in response to Paulk's motion
(Doc. Nos. 46-48). The defendants filed a reply (Doc. No.
49), and Johnson filed a response and declaration in support
(Doc. Nos. 50-51). The defendants' statement of facts,
and the other pleadings and exhibits in the record, establish
that the material facts are not in dispute and that
defendants are entitled to summary judgment as a matter of
law.
II.
Legal Standard
Under
Rule 56 of the Federal Rules of Civil Procedure, summary
judgment is proper if the pleadings, depositions, answers to
interrogatories and admissions on file, together with the
affidavits or declarations, if any, show that there is no
genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.
Fed.R.Civ.P. 56; Celotex v. Catrett, 477 U.S. 317,
321 (1986). When ruling on a motion for summary judgment, the
court must view the evidence in a light most favorable to the
nonmoving party. Naucke v. City of Park Hills, 284
F.3d 923, 927 (8th Cir. 2002). The nonmoving party may not
rely on allegations or denials, but must demonstrate the
existence of specific facts that create a genuine issue for
trial. Mann v. Yarnell, 497 F.3d 822, 825 (8th Cir.
2007). The nonmoving party's allegations must be
supported by sufficient probative evidence that would permit
a finding in his favor on more than mere speculation,
conjecture, or fantasy. Id. (citations omitted). A
dispute is genuine if the evidence is such that it could
cause a reasonable jury to return a verdict for either party;
a fact is material if its resolution affects the outcome of
the case. Othman v. City of Country Club Hills, 671
F.3d 672, 675 (8th Cir. 2012). Disputes that are not genuine
or that are about facts that are not material will not
preclude summary judgment. Sitzes v. City of West
Memphis, Ark., 606 F.3d 461, 465 (8th Cir. 2010).
III.
Analysis
Defendants
argue that they are entitled to summary judgment because
Johnson failed to exhaust his administrative remedies as to
them before he filed this lawsuit. In support of their
motions for summary judgment, defendants submitted a
declaration of Shelly Byers, the ADC's Grievance
Coordinator; a copy of the ADC's inmate grievance policy;
a copy of Grievance TU-17-00595; and a copy of Grievance
TU-17-00594 (Doc. Nos. 29-1 - 29-4 & 42-1 - 42-4).
The
Prison Litigation Reform Act (PLRA) requires an inmate to
exhaust prison grievance procedures before filing suit in
federal court. See 42 U.S.C. §1997e(a);
Jones v. Bock, 549 U.S. 199, 202 (2007); Jones
v. Norris, 310 F.3d 610, 612 (8th Cir. 2002). Exhaustion
under the PLRA is mandatory. Jones v. Bock, 549 U.S.
at 211. The PLRA's exhaustion requirement applies to all
inmate suits about prison life whether they involve general
circumstances or particular episodes, and whether they allege
excessive force or some other wrong.” Porter v.
Nussle, 534 U.S. 516, 532 (2002). The PLRA does not
prescribe the manner in which exhaustion occurs. See
Jones v. Bock, 549 U.S. at 218. It merely requires
compliance with prison grievance procedures to properly
exhaust. See id. Thus, the question as to whether an
inmate has properly exhausted administrative remedies will
depend on the specifics of that particular prison's
grievance policy. See id.
A.
ADC Grievance Policy
Pursuant
to the ADC's grievance policy (Administrative Directive
14-16), inmates are provided Unit Level Grievance Forms as
part of the Inmate Grievance Procedure. See Doc. No.
29-2 at 4. To resolve a problem, an inmate must first seek
informal resolution by submitting a Step One Unit Level
Grievance Form within 15 days after the occurrence of the
incident. Id. at 5. Inmates are to
“specifically name each individual involved for a
proper investigation and response to be completed by the
ADC.” Id. at 4. An inmate must be
“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.” Id. at 5-6. A problem solver
investigates the complaint and provides a written response at
the bottom of the form. Id. If the inmate is not
satisfied with the resolution, he may then complete Step Two
of the grievance procedure and submit the form as a formal
grievance. Id. at 8. If the inmate receives no
response, or if the inmate is not satisfied with the
response, the inmate can appeal to the appropriate Chief
Deputy/Deputy/Assistant Director. Id. at 10-11. Once
that person responds, the grievance process is exhausted.
Id. at 12. According to the ADC's grievance
policy, the entire grievance procedure should be completed
within 76 working days absent an extension or unforeseen
circumstances. Id. at 13. The grievance policy
specifically states that inmates must exhaust administrative
remedies at all levels of the procedure before filing a
federal civil rights lawsuit. Id. at 17.
B.
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