United States District Court, E.D. Arkansas, Pine Bluff Division
Procedures for Filing Objections
Recommended Disposition (Recommendation) has been sent to
Judge D.P. Marshall Jr. Any party may file written objections
to the Recommendation's findings and conclusion.
Objections should be specific and should include the factual
or legal basis for the objection.
considered, objections must be filed with the Clerk of Court
within 14 days of this Recommendation. If no objections are
filed Judge Marshall can adopt this Recommendation without
independently reviewing the record. Also, if parties do not
filed objections, they risk waiving the right to appeal
questions of fact.
Lorenzo Robertson, an inmate in the Arkansas Department of
Correction (ADC), filed this lawsuit without the help of a
lawyer under 42 U.S.C. § 1983. (Docket entry #2) Mr.
Robertson claims that Defendants Pace, Hester, Martin, and
Smith (Defendants) failed to conduct routine security checks
and property searches at the ADC's Varner Unit. He
alleges that a fellow inmate stabbed him on January 29, 2018,
as a direct result of the Defendants' failure. (#2)
moved for summary judgment, contending that Mr. Robertson had
not fully exhausted his administrative remedies at the time
he filed this lawsuit. (#36) After reviewing the
Defendants' evidence in support of their motion, this
Court recommended that the motion be denied because
Defendants had not met their burden to show that Mr.
Robertson did not exhaust his grievance. (#46); see
Porter v. Sturm, 781 F.3d 448, 451 (8th Cir. 2015)
(citing Jones v. Bock, 549 U.S. 199, 211-12, (2007))
(holding that failure to exhaust is an affirmative defense;
thus, defendants have the burden of raising and proving the
absence of exhaustion).
objected to the partial recommendation and, in their
objection, included supplemental material for Judge Marshall
to consider. (#49) In light of the new evidence, Judge
Marshall remanded the case for further consideration of the
exhaustion issue. (#57)
6, 2019, Mr. Robertson appealed the order denying appointment
of counsel (#12), the order staying discovery (#35), and the
order denying Mr. Robertson's motion for trial (#56).
(#72) The Eighth Circuit has now dismissed Mr.
Robertson's appeal for lack of jurisdiction. (#85)
Accordingly, the issue of exhaustion is now ripe for review.
are four grievance forms in the record relevant to the claims
raised in this lawsuit: VU-18-00085 (#38-3, p.1); VU-18-00145
(#38-3, p.4); an unnumbered unit level grievance form
submitted to a staff member on February 1, 2018 (Grievance A)
(#39, p.3); and an unnumbered unit-level grievance Mr.
Robertson dated February 9, 2018 (Grievance B) (#39, p.4).
undisputed that Mr. Robertson failed to fully exhaust
grievances VU-18-00085 and VU-18-00145. It is also clear
he did not fully exhaust Grievance B, given that the section
indicating that the grievance was submitted to a problem
solver for a resolution at step one is blank. (#39 at 4)
leaves Grievance A. As with the other three grievances,
Grievance A was not fully exhausted. It was signed by a staff
member on February 1, 2018, but it did not proceed far enough
into the process to be assigned a number. The question
remains as to whether Mr. Robertson should be excused for
failing to fully exhaust Grievance A.
Grievance A, which was written after he was stabbed, Mr.
Robertson complained that he had written an inmate request to
Warden Jared (not a Defendant) and to Classification asking
to be moved. In Grievance A, Mr. Robertson stated that he did
not feel safe due to multiple stabbings that had occurred in
his barracks. (#39, p.3)
member noted on Grievance A that it was received and dated it
February 1, 2018. (Id.) As with Grievance B, a stamp
on the form indicates that the grievance was, “RETURNED
TO INMATE FOR THE FOLLOWING REASON(S): NOT PROCESSED
ANSWERED/REJECTED OR A DUPLICATE.” (Id.) As
noted in the previous recommendation, the Defendants offered
no explanation in their ...