Johnson v. Bailey

          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. ...