United States District Court, E.D. Arkansas, Western Division
RECOMMENDED DISPOSITION
I.
Procedures for Filing Objections:
This
Recommended Disposition (“Recommendation”) has
been sent to Chief Judge Brian S. Miller. 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, all objections must be
received in the office of the Court Clerk within 14 days of
this Recommendation.
If no
objections are filed, Judge Miller can adopt this
Recommendation without independently reviewing the record. By
not objecting, the parties may waive their right to appeal
questions of fact.
II.
Discussion:
A.
Background
Tariq
Mahdi, an Arkansas Department of Correction inmate formerly
detained at the Pulaski County Regional Detention Facility
(“Detention Facility”), filed this civil rights
lawsuit without the help of a lawyer under 42 U.S.C. §
1983.[1] (Docket entry #2) In his complaint, Mr.
Mahdi alleges that he was exposed to toxic gas fumes while
housed at the Detention Facility.
Defendants
have moved for summary judgment on Mr. Mahdi's claims
against them, arguing that he failed to exhaust his
administrative remedies before filing this lawsuit. (#34) Mr.
Mahdi has not responded to the Defendants' motion, and
the time for doing so has passed. (#38) The motion is now
ripe for review.
B.
Exhaustion
The
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) (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 mandatory”).
There
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. For
example, 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. 2000).
In
support of their motion, Defendants attach the declaration of
Nancy Brawley, the Administrative Sergeant and Grievance
Officer at the Detention Facility. (#35-2) According to
Sergeant Brawley, on September 20, 2018, Mr. Mahdi submitted
PCRDF grievance 18-1083, complaining that there was a gas
leak in the roof of the Detention Facility that was causing
him to feel light-headed. (Id. at pp.3, 19)
On
September 24, 2018, Sergeant Brawley received that grievance.
(Id. at p.19) On October 8, 2018, Sergeant Brawley
responded to Mr. Mahdi's grievance informing him that, on
September 20, a master plumber had discovered a crack in the
elbow of the natural gas line on the Detention Facility's
roof and had replaced the elbow that day. (Id. at
p.22)
On the
same day that Sergeant Brawley received Mr. Mahdi's
grievance (September 24), Mr. Mahdi filed this lawsuit. (#2)
Accordingly, he could not have fully exhausted PCRDF
grievance 18-1083 before filing this lawsuit, and dismissal
is mandatory.
III.
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