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Lamar v. Kelley

United States District Court, E.D. Arkansas, Pine Bluff Division

April 1, 2019

ANTHONY LAMAR, ADC #120479A PLAINTIFF
v.
WENDY KELLEY, et al. DEFENDANTS

          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 with the Clerk of Court. To be considered, objections must be filed within 14 days. Objections should be specific and should include the factual or legal basis for the objection.

         If the parties do not file objections, they risk waiving the right to appeal questions of fact. And, if no objections are filed, Judge Miller can adopt this Recommendation without independently reviewing the record.

         II. Background:

         Plaintiff Anthony Lamar, an inmate at the Varner Unit of the Arkansas Department of Correction (ADC), claims that Defendants Straughn and Jenkins transferred him in retaliation for retaining legal documents. He also claims that Defendants Andrews, Kelley, and Lawrence knew of the retaliation but failed to intervene or take corrective action. (#2; #21; #67)

         Defendants have moved for summary judgment, arguing that Mr. Lamar failed to exhaust his retaliation claim against Defendants Jenkins and failed to exhaust his corrective-inaction claim against Defendant Andrews prior to filing this lawsuit.[1] (#78)

         Defendants also contend that they are all entitled to summary judgment on the merits of Mr. Lamar's claims. (#78) They maintain that Mr. Lamar was transferred from the Ester Unit to the Varner Unit for health reasons and not for any retaliatory reason. Specifically, they contend that Mr. Lamar's need for a bottom bunk was the reason for his transfer. Mr. Lamar has responded to the Defendants' motion (#97), and it is ready for review.

         III. Exhaustion:

         The Prison Litigation Reform Act (PLRA) requires the Court to dismiss any claim filed by a prisoner that was not fully exhausted prior to the date the lawsuit was filed, with limited exceptions. 42 U.S.C. § 1997e(a) It is undisputed that Mr. Lamar did not name Defendants Jenkins and Andrews in any fully exhausted grievance concerning the claims raised in this case. In his response to the Defendants' motion, however, Mr. Lamar argues that he was thwarted in his attempt to exhaust grievances complaining of retaliation and that the grievance process was unavailable to him on the issue of corrective inaction. (#97) The Court must determine whether Mr. Lamar's claims against Defendants Jenkins and Andrews fall within one of the narrow exceptions to the exhaustion requirement. See e.g., Miller v. Norris, 247 F.3d 736, 740 (8th Cir. 2001); Foulk v. Charrier, 262 F.3d 687, 697-98 (8th Cir. 2001).

         A. Retaliatory Transfer Claims against Defendant Jenkins

         Mr. Lamar filed four grievances complaining that he was transferred in retaliation for storing documents: ESU-16-00151; ESU-16-00153; ESU-16-00154; ESU-16-00155. (#21, pp. 23-33) He concedes that he did not name Defendant Jenkins in those grievances but argues that he was prevented from exhausting his claims against Defendant Jenkins because all four retaliatory transfer grievances were rejected at the unit level.

         In Grievance ESU-16-00151 Mr. Lamar alleged a retaliatory transfer. Through mistake or otherwise, that grievance was not considered a retaliation complaint, but rather, a garden-variety complaint about a transfer, which is a non-grievable matter. (#21, pp. 22-23) However, while grievances ESU-16-00153, ESU-16-00154, and ESU-16-00155 were also initially rejected at the unit level as non-grievable, the Director ultimately determined that the matter should have been investigated. As she noted, “the allegations of retaliation by staff due to [Mr. Lamar's] legal documents and storage of them” were investigated. The investigation resulted in a finding that the transfer was based on Mr. Lamar's request or need for a bottom bunk and was not ordered in retaliation for his retention of legal documents. (#21, pp. 25, 28, 31) (emphasis added)

         The fact that Mr. Lamar did not specifically name Defendant Jenkins is of no import. The undisputed record shows that there was an investigation to determine whether retaliation by ADC staff played a part in the decision to transfer Mr. Lamar to a different ADC unit. The defense that Mr. Lamar did not fully exhaust his administrative remedies against Defendant Jenkins by specifically naming her was waived. Because ADC officials investigated the merits of Mr. Lamar's complaint to determine whether any ADC staff members orchestrated his transfer as retaliation for protected activity, that investigation is presumed to include both named and unnamed staff members involved in the transfer. See Hammett v. ...


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