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Boyd v. Rechcigl

United States District Court, E.D. Arkansas, Eastern Division

May 3, 2019

MICHAEL LAVERN BOYD ADC #115890 PLAINTIFF
v.
GREG RECHCIGL, AHSA East Arkansas Regional Unit, et al. DEFENDANTS

          RECOMMENDED DISPOSITION

         The following Recommended Disposition has been sent to United States Chief District Judge Brian S. Miller. You may file written objections to all or part of this Recommended Disposition. 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 the date of this Recommended Disposition. If you do not file objections, Judge Miller can adopt this Recommended Disposition without independently reviewing all of the evidence in the record. By not objecting, you may waive the right to appeal questions of fact.

         I. Introduction

         On January 10, 2017, Plaintiff Michael Lavern Boyd (“Mr. Boyd”) filed a Complaint alleging that, while he was incarcerated in the East Arkansas Regional Unit (“EARU”) of the Arkansas Department of Correction (“ADC”), he received inadequate and delayed medical care for symptoms related to his lower bowel, which were causing him pain and periodic blood in his stool. Doc. 2. In his Amended Complaint, Mr. Boyd named as Defendants: Nurse Amanda Sackett, who saw Mr. Boyd one time, on October 23, 2016; Dr. Kenneth L. Holder; and Greg Rechcigl (“Mr. Rechcigl”), who reviewed and denied Grievance EA-16-01463, at Step Two of the ADC's exhaustion process (hereinafter referred to collectively as “Defendants”). Doc. 6. Between June and December 2016, all of the Defendants were employed by Correct Care Solutions (“CCS”), the medical provider for the EARU.

         At the time Mr. Boyd filed this action in early January 2017, he had initiated only one grievance, EA-16-01463, which complained about the medical treatment he was receiving for the problems with his lower bowel. On December 6, 2016, Mr. Rechcigl reviewed that grievance and found no substantive basis for Mr. Boyd's complaints. Among other things, Mr. Rechcigl noted that, on November 10, 2016, Mr. Boyd was examined and given a colonoscopy by Dr. Samad, a gastroenterologist in private practice in Pine Bluff Arkansas.[1] Court's Ex. 1 at 2 & 4.

         On December 7, 2016, Mr. Boyd appealed Mr. Rechcigl's denial of grievance EA-16-1463 to Rory L. Griffin (“Mr. Griffin”), the ADC Deputy Director of Health Services. On December 22, 2016, Mr. Griffin rejected Mr. Boyd's appeal on procedural grounds, because his grievance appeal papers did not include the Unit Level Grievance, a document created on an ADC form captioned “Attachment I.” In addition, Mr. Griffin rejected the appeal because Mr. Boyd did not include his “name, ADC#, and/or date” on Attachment IV.[2] Court's Ex. 1 at 2; Court's Ex. 2 at 3-4.

         On June 27, 2017, I filed a Recommended Disposition granting Defendants' Motion for Summary Judgment (Doc. 34) on the ground that Mr. Boyd failed to exhaust his administrative remedies. Specifically, I found that Mr. Boyd: (1) did not include his Unit Level Grievance (Attachment I) among the documents he submitted to Mr. Griffin, as part of his appeal of Mr. Rechcigl's Step Two resolution of Grievance EA-16-01463; and (2) did not sign his “name, ADC#, and/or the date” on Attachment IV, the other document he was required to complete and submit as part of his appeal. Doc. 41. Both of those deficiencies were noted by Mr. Griffin on Attachment V, which rejected Mr. Boyd's appeal on procedural grounds.[3]

         On July 27, 2017, United States Chief District Judge Brian S. Miller entered an Order and Judgment adopting my Recommended Disposition and dismissing Mr. Boyd's Complaint, without prejudice. Doc. 45.

         On August 3, 2017, Mr. Boyd filed a Notice of Appeal to the United States Court of Appeals for the Eighth Circuit. Doc. 48.

         On December 28, 2018, the Eighth Circuit entered a per curiam decision reversing the order granting summary judgment. Boyd v. Doe, 746 Fed.Appx. 599 (8th Cir. 2018) (Doc. 56). After noting that Mr. Boyd's grievance appeal was rejected because he “did not send … the unit level grievance form [Attachment I]” and failed to include “his name, his inmate number, and the date” on Attachment IV, the Court held there was a material dispute “about whether Boyd complied with the exhaustion requirement, either by submitting all of the required attachments at the appeal stage or by submitting whatever attachments were available to him after officials failed to return some forms to him with the decision on his grievance.” Id. at 600 (emphasis added).

         On February 6, 2019, Judge Miller entered an Order vacating the decision to grant summary judgment and directing the Clerk to reopen the case. Doc. 60. As a result, Defendants' Motion for Summary Judgment, based on Mr. Boyd's alleged failure to exhaust, remains pending. Doc. 34.

         On April 17, 2019, I conducted an evidentiary hearing to resolve the disputed facts related to the exhaustion issue as directed by the Eighth Circuit in its December 28, 2018 decision.[4] Mr. Boyd, who appeared pro se, testified that he had fully and completely exhausted his administrative remedies by including the Unit Level Grievance (Attachment I) among the appeal papers he mailed to Mr. Griffin on December 7, 2016.

         Mr. Boyd called one witness, Steven McArthur (“Mr. McArthur”), who became Mr. Boyd's cellmate in the EARU in January of 2017. It is undisputed that everything Mr. Boyd did to exhaust Grievance EA-16-01463 occurred before December 31, 2016. In his testimony, Mr. McArthur conceded that he had no personal knowledge about any of the facts and circumstances surrounding Mr. Boyd's efforts to exhaust Grievance EA-16-01463. Thus, Mr. McArthur did not provide any substantive testimony to support Mr. Boyd's position on exhaustion.

         Defendants called one witness, Shelly Byers (“Ms. Byers”), the Medical Grievance Coordinator for Mr. Griffin, and the ADC employee who was personally involved in reviewing the appeal documents Mr. Boyd mailed to Mr. Griffin challenging Mr. Rechcigl's decision on Grievance EA-16-01463.[5]

         During the hearing, Mr. Boyd did not introduce any documents into evidence. I asked Mr. Boyd and Defendants' counsel, Ms. Michelle Odum, if they had any objection to me introducing into evidence two documents, marked Court's Exhibits 1 and 2.[6] They both responded, “No, ” and those two documents were admitted into evidence.

         The first page of Court's Exhibit 1 is the “Declaration of Tammy Kimble, ” the Assistant Health Services Administrator at the EARU between October and December of 2016. Attached to her Declaration are copies of the following documents: (1) Attachment I, Mr. Boyd's fully completed Unit Level Grievance Form; (2) Attachment II, “Acknowledgment or Rejection of Unit Level Grievance, ” which reflects that, because Mr. Boyd's “Grievance is of a medical nature [it] has been forwarded to the Health Services Administrator [Mr. Rechcigl] who will respond”; and (3) Attachment IV, which reflects Mr. Rechcigl's “Health Services Response to Unit Level Grievance.”

         Ms. Kimble states in her Declaration that “[t]he original (Attachment I) was returned to the inmate [Mr. Boyd] along with the unit response [written by Mr. Rechcigl on Attachment IV].”

         After the original “ink versions” of these documents were returned to Mr. Boyd on December 6, 2016, he completed the lower portion of Attachment IV, where he stated the reasons he disagreed with Mr. Rechcigl's decision. Everyone agrees that, on December 7, 2016, Mr. Boyd mailed Attachment II and Attachment IV to Mr. Griffin. The only disputed question of fact is whether Mr. Boyd also included Attachment I among the appeal documents he mailed to Mr. Griffin.

         The first page of Court's Exhibit 2 is the “Declaration of Shelly Byers, ” the Medical Grievance Coordinator for Mr. Griffin. Attached to her Declaration are the following documents which she found in the appeal file she maintained for Grievance EA-16-01463: (1) a copy of Attachment II, the “Acknowledgment or Rejection of Unit Level Grievance, ” which reflects Mr. Boyd's signature and ADC number, along with the date he signed the form on December 7, 2016; (2) a copy of Attachment IV, which includes Mr. Rechcigl's “response” denying the grievance and Mr. Boyd's “reasons” for appealing that decision; and (3) a copy of Attachment V (captioned “Acknowledgment of Grievance Appeal or Rejection of Appeal”), which reflects that Mr. Boyd's appeal of EA-16-01463 has been rejected because (a) he failed to include Attachment I, the Unit Level Grievance Form, in his appeal papers; and (b) he did not include his name, ADC number, and date on Attachment IV.

         Ms. Odum marked and moved to introduce into evidence Defendants' Exhibits 1 and 2.[7] I asked Mr. Boyd if he had any objections to the admission of those documents into evidence and he responded, “No.”

         The first page of Defendants' Exhibit 1 is a copy of Attachment V, which Ms. Byers located in Mr. Boyd's grievance file. Affixed to Attachment V is the original yellow post-it note reflecting Ms. Byers's and her assistant's handwritten notations, which they made immediately after reviewing Mr. Boyd's grievance appeal papers on or about December 22, 2016. This original post-it note contained the following handwritten notations: (1) “No Attachment I, No. Name, Date or ADC#, ” written by Ms. Byers's assistant; and (2) “Reject 12-22-16 SB [the initials of Shelly Byers], ” written by Ms. Byers. Defendants' Exhibit 1 also includes the fully completed Attachment II and Attachment IV. However, it does not include Attachment I, the document that the contemporaneous notations reflect was not among the appeal papers Mr. Boyd mailed to Mr. Griffin.

         Defendants' Exhibit 2 is a blank quadruplicate set of “Unit Level Grievance Form (Attachment I).” At the bottom of that document, it reflects where the four pages go after the Form is completed: “YELLOW & PINK [copies] - Inmate Receipts; BLUE - Grievance Officer; ORIGINAL - Given back to Inmate After Completion of Step One and Step Two.”

         Based on the routing instructions at the bottom of Defendants' Exhibit 2, when Mr. Boyd mailed his appeal of Grievance EA-16-01463 to Mr. Griffin, on December 7, 2016, he should have had in his possession the original “ink versions” of Attachment I and Attachment IV ...


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