United States District Court, E.D. Arkansas, Eastern Division
PATRICK CANTRELL SR. Reg. #22630-075 PLAINTIFF
v.
MICHELLE WINGO, et al. DEFENDANTS
PROPOSED 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
Patrick Cantrell filed a pro se complaint on
February 26, 2018,[1] while incarcerated at the Forrest City
Federal Correctional Institute (“FCC - Forrest
City”) (Doc. No. 1). Cantrell sues Michelle Wingo,
Physician's Assistant, FCC -Forrest City; Brenda Hoy,
Assistant Health Services Administrator, FCC - Forrest City;
Gene Beasley, Warden, FCC - Forrest City; D.J. Harmon, Acting
Regional Director, South Central Regional Office; and Dr.
Sheila Stinson-Woodard. Cantrell's complaint is brought
pursuant to Bivens v. Six Unknown Agents of the Fed.
Bureau of Narcotics, 403 U.S. 388 (1971)
(“Bivens”). A Bivens claim is a
cause of action brought directly under the United States
Constitution against a federal official acting in his or her
individual capacity for violations of constitutionally
protected rights. In this case, Cantrell complains about his
medical treatment, or lack thereof, related to a kidney
condition.
Defendants
Wingo, Hoy, Beasley, and Harmon filed a motion for summary
judgment, a brief in support, and a statement of facts,
claiming that Cantrell had not exhausted his claims against
them before he filed this lawsuit (Doc. Nos. 20-23).
Defendant Dr. Woodard also filed a motion for summary
judgment, a brief in support, and a statement of facts,
claiming that Cantrell had not exhausted his claims against
her before he filed this lawsuit (Doc. Nos. 33-36). Cantrell
filed responses to both motions (Doc. Nos. 24 & 39). 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 movant shows that there is
no genuine dispute 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(a); 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). An assertion that a fact cannot be
disputed or is genuinely disputed must be supported by
materials in the record such as “depositions,
documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes
of the motion only), admissions, interrogatory answers, or
other materials . . .”. Fed.R.Civ.P. 56(c)(1)(A). A
party may also show that a fact is disputed or undisputed by
“showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the
fact.” Fed.R.Civ.P. 56(c)(1)(B). 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
assert that they are entitled to summary judgment because
Cantrell failed to exhaust his administrative remedies before
he filed this lawsuit. In support of their motions,
defendants submit the declaration of Susan Gaither-Miller,
the Associate Warden's secretary at the FCC - Forrest
City; a copy of public information regarding Cantrell that is
maintained in the Bureau of Prison's SENTRY computer
program; and Cantrell's administrative remedy records
maintained in the SENTRY program (Doc. Nos. 22-1 & 35-1).
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.
The
Bureau of Prisons (BOP) has a three-tiered administrative
procedure for inmate grievances which is codified at 28
C.F.R. §§ 542.10 - 542.19. Inmates must first
attempt to resolve their grievance or complaint informally
with prison staff. 28 C.F.R. § 541.13(a). If that
attempt is unsuccessful, the inmate must submit a Request for
Administrative Remedy to the Warden at the local
institutional level. 28 C.F.R. § 542.14(a). If the
inmate is not satisfied with the Warden's response, the
inmate must appeal to the Regional Director within 20 days of
the Warden's response, and, in turn, to the Office of the
General Counsel, Bureau of Prisons, Washington, D.C. (the
“Central Office”), within 30 days of the Regional
Director's response. 28 C.F.R. § 542.15(a). The
Regional Director has 30 days to respond to an appeal and the
Central Office has 40 days to respond to an appeal. 28 C.F.R.
§ 542.18. The administrative remedy process for a
grievance is not deemed exhausted unless it has been properly
presented and denied at all three levels. See e.g.,
Marlin v. Raper, 2007 WL 779710, *3 (E.D. Ark. 2007).
All administrative remedy requests from each institution, the
Regional Office, and the Office of General Counsel of the
Bureau of Prisons have been recorded and maintained in the
SENTRY computer system. Doc. No. 22-1 at ¶ 5.
The
affidavit of Ms. Gaither-Miller states that Cantrell filed
two administrative remedy requests while in Bureau of Prisons
custody.[2] Id. SENTRY records show that
Cantrell filed Administrative Remedy Request 901468-F1 at FCC
- Forrest City on May 10, 2017, requesting 90 - 180 day
regular testing of kidney function related to his kidney
condition. Doc. No. 22-1 at ¶ 6, 8. The Warden provided
Cantrell with a response on May 19, 2017. Id.
Cantrell appealed the Warden's response to the South
Central Regional Office on June 5, 2017. Doc. No. 22-1 at
¶ 7, 9. The Regional Director responded to 901468-R1 on
June 28, 2017. Id. There is no record of Cantrell
appealing the Regional Director's response to the Central
Office. Doc. No. 22-1 at ¶ 10, 11.
Cantrell
disputes only one fact asserted by the
defendants.[3] Cantrell maintains that he appealed the
Regional Director's response to the Central Office. Doc.
Nos. 24 & 39. However, he submits no proof to
substantiate his claims other than his own unsworn affidavit.
See Conseco Life Ins. Co. v. Williams, 620 F.3d 902,
909 (8th Cir. 2010) (quoting Flentje v. First Nat'l
Bank of Wynne,340 Ark. 563, 11 S.W.3d 531 (2000)
(“When the movant makes a prima facie showing of
entitlement to a summary judgment, the respondent ...