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Hood v. Ewing

United States District Court, W.D. Arkansas, Texarkana Division

January 15, 2019

DEPUTY EWING, Mail Security Supervisor, Southwest Arkansas Community Correction “SWACC”; TINA HODGE, Discipline Supervisor, SWACC; HANSON, Maintenance Supervisor, SWACC; CORPORAL KELLY, Advisor/Counselor, SWACC; and LIEUTENANT MAXWELL, Warden, SWACC DEFENDANTS


          Susan O. Hickey United States District Judge

         Before the Court is Defendants' Motion to Dismiss. (ECF No. 15). Plaintiff has filed a response. (ECF No. 18). The Court finds this matter ripe for consideration.

         I. BACKGROUND

         Plaintiff is currently an inmate in the Southwest Arkansas Community Correction Center (the “SWACCC”) in Texarkana, Arkansas. On October 5, 2018, Plaintiff filed his Complaint in the Eastern District of Arkansas, pursuant to 42 U.S.C. § 1983. (ECF No. 2). On October 11, 2018, the case was transferred to the Western District of Arkansas, Texarkana Division. (ECF No. 4). Plaintiff names the following people as Defendants in this lawsuit: Deputy Ewing, a Mail Security Supervisor at the SWACCC; Tina Hodge, a Discipline Supervisor at the SWACC; Hanson, a Maintenance Supervisor at the SWACCC; Corporal Kelly, an Advisor/Counselor at the SWACC; and Lieutenant Maxwell, the Warden of the SWACCC.

         In his Complaint, Plaintiff alleges that his outgoing mail:

was read and passed around to the maintenance supervisor which in Fact was my work supervisor. I lost my Job due to this. Also my mail was read out loud in front of other Residents at said unit (SWACCC), were I'm being incarcerated. Mr. Ewing passed my outgoing mail to the S.O.D. Tina Hodge. She let advisor Kelly and Maintenance Supervisor Hanson read it. While Mrs. Tina Hodge read it out loud to the (Black dot) High Archy residents who follows orders from Staff.

(ECF No. 2, pp. 5-6). On November 7, 2018, Plaintiff supplemented his Complaint, attaching copies of: “1) my original grievance and 2 page additional grievance form; 2) copy of informal resolution form; . . . 4) Warden's/center Supervisory Decision; . . . 6) Decision of the Deputy Director of Residential Services; and 7) Declaration of Robert Higgins.” (ECF No. 9).

         In an informal grievance dated September 27, 2018, Plaintiff states, “I sent a resident request on or about 8-24-18 about unauthorized staff and residents reading my personal mail[;] this unfortunately was misplaced or lost.” (ECF No. 9, p. 2). That same day, Plaintiff checked the box on the grievance form indicating that his “complaint has NOT been resolved and [he] want[s] to pursue this matter (options include submitting a grievance), ” and signed the document. Id. Plaintiff then filed his formal grievance, dated September 27, 2018. This grievance was received by SWACCC officials on October 1, 2018, and addressed on October 3, 2018. Id. at p. 6. Plaintiff then appealed the decision. Id. Defendant Maxwell, the SWACCC warden, issued her final decision concerning Plaintiff's formal grievance on October 30, 2018, finding Plaintiff's grievances to be without merit. Id. at p. 7.

         Defendants filed the instant Motion to Dismiss on November 19, 2018, arguing: (1) the documents Plaintiff submitted in his Supplement demonstrate he failed to exhaust his administrative remedies before filing suit; and (2) Plaintiff fails to state a claim upon which relief may be granted as to separate Defendant Warden Maxwell. (ECF No. 15). Plaintiff filed a Response, stating as follows:

After filing the initial Resident Request [on August 24, 2018] I waited for 2 weeks before asking Mrs. Reed for a copy this extending past the 5 day response as procedure states. Then when I was informed it had been lost . . . Mrs. Reed informed me that I could just staple both the complaint and the grievance form together and file them at the same time. There was not back dating of any type on any part the Sept 27th is the date both forms were filed. I believe that this was intentional on the ARO Mrs. Reed's part. As this has seemingly been the rule and not the exception in this case. And as there being a delay between the time I appealed the Warden's Decision this is yet another break in the procedure of allowing 5 days for a response furthermore the Warden's decision was impossible to [decipher] . . . I do not think the timing on the 1983 filing would in any way change the decision of (SWACCC) . . . to sum this part of the case up I feel I have been deliberately misled on procedure by the ARO Mrs. Reed to create an opening for dismissal. As for Ms. Maxwell . . . I do not have any factual information that she had any involvement in the reading of my mail and I now know that she cannot be sued just because she is the center supervisor and agree she had no personal involvement.

(ECF No. 18).[1]


         Rule 8(a) contains the general pleading rules and requires a complaint to present “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). “In order to meet this standard, and survive a motion to dismiss under Rule 12(b)(6), ‘a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face.'” Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft, 556 U.S. at 678. Although the Court will liberally construe a pro se plaintiff's complaint, the plaintiff must nonetheless allege sufficient facts to support his claims. See Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004).

         III. ...

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