Robertson v. Pace

          RECOMMENDED DISPOSITION

         I. Procedures for Filing Objections

         This 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.

         To be 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.

         II. Background

         Plaintiff 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)

         Defendants 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).

         Defendants 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)

         On May 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.

         III. Discussion

         There 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).

         It is undisputed that Mr. Robertson failed to fully exhaust grievances VU-18-00085 and VU-18-00145.^[1] 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.^[2] (#39 at 4)

         That 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.

         In 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)

         A staff 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 ...