United States District Court, W.D. Arkansas, Hot Springs Division
MAGISTRATE JUDGE'S REPORT AND
RECOMMENDATION
HON.
BARRY A. BRYANT UNITED STATES MAGISTRATE JUDGE.
This is
a civil rights action provisionally filed pursuant to 42
U.S.C. § 1983. Pursuant to the provisions of 28 U.S.C.
§ 636(b)(1) and (3)(2011), the Honorable Robert T.
Dawson, United States District Judge, referred this case to
the undersigned for the purpose of making a Report and
Recommendation.
Currently
before the Court is Defendant Merritt's Motion for
Summary Judgment. (ECF Nos. 15, 16, 17).
I.
BACKGROUND
Plaintiff
filed his Complaint on October 16, 2018. (ECF No. 1). He is
currently incarcerated in the Arkansas Department of
Correction (“ADC”) Ouachita River Unit. He
alleges his constitutional rights were violated by Defendant
Merritt's use of excessive force against him in the chow
hall on August 21, 2018. (Id. at 3). Plaintiff
proceeds against Defendant Merritt in his personal capacity.
(Id. at 4). He seeks compensatory and punitive
damages. (Id. at 5).
Defendant
Merritt filed his Motion for Summary Judgment on December 11,
2018. (ECF Nos. 15, 16, 17). On December 12, 2018, the Court
entered an Order directing Plaintiff to file his Response to
the Motion. (ECF No. 20). Plaintiff did so on January 7,
2019. (ECF Nos. 23, 24, 25, 26).
II.
LEGAL STANDARD
Summary
judgment is appropriate if, after viewing the facts and all
reasonable inferences in the light most favorable to the
nonmoving party, Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986), the record
"shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law." Fed.R.Civ.P. 56(a). "Once a party
moving for summary judgment has made a sufficient showing,
the burden rests with the non-moving party to set forth
specific facts, by affidavit or other evidence, showing that
a genuine issue of material fact exists.” National
Bank of Commerce v. Dow Chemical Co., 165 F.3d 602, 607
(8th Cir. 1999).
The
non-moving party "must do more than simply show that
there is some metaphysical doubt as to the material
facts." Matsushita, 475 U.S. at 586. "They
must show there is sufficient evidence to support a jury
verdict in their favor." National Bank, 165
F.3d at 607 (citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249 (1986)). "A case founded on
speculation or suspicion is insufficient to survive a motion
for summary judgment." Id. (citing, Metge
v. Baehler, 762 F.2d 621, 625 (8th Cir. 1985)).
“When opposing parties tell two different stories, one
of which is blatantly contradicted by the record, so that no
reasonable jury could believe it, a court should not adopt
that version of the facts for purposes of ruling on a motion
for summary judgment.” Scott v. Harris, 550
U.S. 372, 380 (2007).
III.
ANALYSIS
Defendant
Merritt argues summary judgment in his favor is appropriate
because Plaintiff failed to exhaust his administrative
remedies against him for the incident on August 21, 2018,
prior to filing this lawsuit. (ECF No. 15 at 1).
Plaintiff
admits he did not exhaust his grievance, but argues he filed
an Informal Step One grievance about the incident and was
told a disciplinary issue was a non-grievable matter, so he
did not proceed further with the ADC grievance process. (ECF
No. 26 at 1). He notes that he did not grieve the fact that
he received a disciplinary because he did not know at the
time that a disciplinary charge had been filed. The subject
of his Step One Informal grievance was instead
Defendant's actions against him. He further states that
it is common procedure for ADC staff to deem any incident in
which an inmate receives a disciplinary charge to be
non-grievable. (ECF No. 24 at 2).
The
Prison Litigation Reform Act (“PLRA”) provides
that “[n]o action shall be brought with respect to
prison conditions under section 1983 of this title, or any
other Federal law, by a prisoner confined in any jail,
prison, or other correctional facility until such
administrative remedies as are available are
exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is
mandatory. Porter v. Nussle, 534 U.S. 516, 524-25
(2002). “[T]o properly exhaust administrative remedies
prisoners must complete the administrative review process in
accordance with the applicable procedural rules.”
Jones v. Bock, 549 U.S. 199, 218 (2007) (internal
quotation marks and citation omitted). The “level of
detail necessary in a grievance to comply with the grievance
procedures will vary from system to system and claim to
claim, but it is the prison's requirements, and not the
PLRA, that define the boundaries of proper exhaustion.”
Id. A prisoner's remedies are exhausted
“when [the] inmate pursues the prison grievance process
to its final stage and receives an adverse decision on the
merits.” Hammett v. Cofield, 681 F.3d 945, 947
(8th Cir. 2012).
The
Eighth Circuit Court of Appeals has recognized only two
exceptions to the PLRA exhaustion requirement: (1) when
officials have prevented prisoners from utilizing the
grievance procedures; or (2) when the officials themselves
fail to comply with the grievance procedures. See Gibson
v. Weber,431 F.3d 339, 341 (8th Cir. 2005) (citing
Miller v. Norris, 347 F.3d 736 (8th Cir. 2001)
(explaining that a prisoner is only required to exhaust those
administrative remedies that are available and any remedies
that prison officials prevent a prisoner from utilizing are
not considered available)). It is not Plaintiff's
subjective belief regarding whether he had any administrative
remedies remaining that should be considered, but whether any
administrative remedies were in fact still available. See
Gibson v. Weber,431 F.3d 339, 340 (8th Cir. 2005)
(incorrect advice from medical staff and officers
that medical complaints should be done informally and not to
the prison administration under its grievance procedure did
not excuse failure to exhaust); Lyon v. VandeKrol, 305 F.3d 806, 809 (8th Cir. 2002) (the court
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