United States District Court, E.D. Arkansas, Pine Bluff Division
JASON R. STEWART, ADC #162429 PLAINTIFF
MICHAEL D. BOLEN, et al. DEFENDANTS
Procedures for Filing Objections:
Recommended Disposition (“Recommendation”) has
been sent to Judge Billy Roy Wilson. Mr. Stewart may file
written objections to this Recommendation, which should be
specific and should include the factual or legal basis for
the objection. To be considered, Mr. Stewart's objections
must be received in the office of the Court Clerk within 14
days of this Recommendation.
objections are filed, Judge Wilson can adopt this
Recommendation without independently reviewing the record. By
not objecting, Mr. Stewart risks waiving the right to appeal
questions of fact.
R. Stewart, an Arkansas Department of Correction
(“ADC”) inmate, filed this civil rights lawsuit
without the help of a lawyer. (Docket entry #2) In his
complaint, Mr. Stewart alleges that Defendants Bolen, Childs,
Johnson, and Cosen used excessive force against him, and that
Defendants Childs, Johnson, and Cosen failed to protect him
from Defendant Bolen's attack.
have now moved for summary judgment, arguing that Mr. Stewart
failed to fully exhaust his administrative remedies before
filing this lawsuit. (#17) Mr. Stewart has not responded to
the Defendants' motion, and the time for responding to
the motion has passed. (#20)
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”); 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) (“If exhaustion was not
completed at the time of filing, dismissal is
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). But
the exceptions to the exhaustion requirement are few. An
inmate's subjective belief about the effectiveness of the
grievance process does not excuse a failure to exhaust; nor
does confusion about the requirements for exhaustion.
Chelette v. Harris, 229 F.3d 684, 688 (8th Cir.
requirements may vary from prison to prison because “it
is the prison's requirements, and not the PLRA, that
define the boundaries of proper exhaustion.” Jones
v. Bock, 549 U.S. 199, 218 (2007); see also
Woodford, 548 U.S. at 91.
in his complaint, Mr. Stewart concedes that he did not file
any grievances related to the claims raised in this lawsuit.
(#2 at p.3) Mr. Stewart, however, explains that he did not
exhaust his administrative remedies because he was denied
access to ADC grievance forms. (Id. at p.4) He
states that, when he was provided grievances forms and
submitted them, those grievances were denied as untimely.
Therefore, he was denied access to the grievance process.
attach the declaration of April Gibson, the ADC Grievance
Officer, in support of their motion. (#17-2) Ms. Gibson
testifies that Mr. Stewart was housed in restrictive housing
from March 28, 2018 (the date that the alleged incident took
place), until April 18, 2018. (Id. at p.4) She
explains that grievance forms are available to inmates who
are in restrictive housing and that officers were available
to process grievances for Mr. Stewart. (Id. at
pp.4-5) She also testifies that, during the time period at
issue, the ADC grievance office received and processed forty
grievances from inmates housed in the same location as Mr.
Stewart. (Id. at p.5)
Gibson further states that Mr. Stewart did not file any
grievances related to the issues raised in this lawsuit after
he was released from restrictive housing. (Id.) She
concludes that “Mr. Stewart has not filed or properly
exhausted a single grievance against specifically any of the