United States District Court, W.D. Arkansas, Texarkana Division
O. Hickey United States District Judge
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.
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.
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
(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).
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.
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).
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.