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Thrower v. Kelley

United States District Court, E.D. Arkansas, Pine Bluff Division

November 2, 2018

QUVONDO MARTA THROWER, ADC #153192 PLAINTIFF
v.
WENDY KELLEY, et al. DEFENDANTS

          RECOMMENDED DISPOSITION

         I. Procedures for Filing Objections

         This Recommended Disposition (“Recommendation”) has been sent to Judge D. P. Marshall Jr. Any party may file written objections to this Recommendation. Objections should be specific and should 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 Marshall can adopt this Recommendation without independently reviewing the record. By not objecting, parties may waive their right to appeal.

         II. Background

         Plaintiff QuVondo Thrower, an inmate in the Arkansas Department of Correction, filed this lawsuit without the help of a lawyer under 42 U.S.C. § 1983. (Docket entry #1) Mr. Thrower filed his complaint on July 2, 2018, alleging that Defendants Kelley, Shores, Powell, Maples, Watson, and Griffith used excessive force against him and failed to protect during a hostage stand-off at the prison on November 24, 2017. (#2)

         Mr. Thrower has filed an unsupported motion for summary judgment on the merits, reasserting his allegations against the Defendants (#19); and they have responded. (#22) Defendants have filed their own motion for summary judgment based on Mr. Thrower's alleged failure to exhaust his administrative remedies. (#24) Mr. Thrower has responded to that motion. (#28) The motions are ripe for review.

         III. Exhaustion

         The Prison Litigation Reform Act requires the Court to dismiss any claim raised in a 42 U.S.C. § 1983 lawsuit such as this if the claim was not fully exhausted prior to the date the 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”); 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 requirement, but they are few. For example, an inmate's misunderstanding about the exhaustion process or subjective belief as to the futility of the process are irrelevant in determining whether administrative procedures were available to the inmate. See Chelette v. Harris, 229 F.3d 684, 688 (8th Cir. 2000).

         That said, the law requires exhaustion only 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 is deemed unavailable, for example, “when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. at 1859-60.

         Under the current law, Defendants bear the burden of proving non-exhaustion. Porter v. Sturm, 781 F.3d 448, 451 (8th Cir. 2015) (citing Jones v. Bock, 549 U.S. 199, 211-12 (2007)) (Non-exhaustion is an affirmative defense; thus, defendants have the burden of raising and proving the absence of exhaustion.)

         IV. Discussion

         During all times relevant to this lawsuit, Administrative Directive (“AD”) 14-16 was in effect. (#24-2) Under AD 14-16, inmates must fully exhaust their administrative remedies as to all defendants before filing a § 1983 lawsuit. (Id. at 17-18)

         Inmates must first file a unit level grievance form within fifteen days of the underlying incident. (Id. at 5) The unit level grievance form must contain a statement that “is specific as to the substance of the 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) This form should be presented to a designated problem-solver or to any staff member holding the rank of sergeant or above. (Id. at 6) At this time, the staff member must sign and date the form. (Id.) If the problem cannot be resolved, the ...


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