United States District Court, E.D. Arkansas, Northern Division
PROPOSED FINDINGS AND RECOMMENDATION
following Recommendation has been sent to United States
District Judge James M. Moody Jr. You may file written
objections to all or part of this Recommendation. 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 this Recommendation. By not objecting, you may waive the
right to appeal questions of fact.
Lisa Ryan Murphy, an inmate at the Arkansas Department of
Correction's (ADC) McPherson Unit, filed a complaint
pursuant to 42 U.S.C. § 1983 and an application to
proceed in forma pauperis on September 14, 2018. Doc. Nos. 1
& 2. Although Murphy is a three-striker under the
three-strikes provision of the Prison Litigation Reform Act
(“PLRA”), she was granted leave to proceed in
forma pauperis under the PLRA's imminent danger
exception. Doc. No. 3. After screening, Murphy's amended
complaint (Doc. No. 5) and an addendum (Doc. No. 6) were
served on certain defendants. See Doc. No. 7. Other
defendants were dismissed after screening, for failure to
serve, or on Murphy's motion. See Doc. Nos. 22, 26, 88,
111 & 120. The remaining defendants are: Dr. Joseph
Hughes, APN Betty Hutchinson, Dr. Donald Pate, and Dr.
alleges she had surgery in June 2018, that the surgery
failed, and that she subsequently began to profusely bleed
and had 10 inches of her colon hanging out. Doc. No. 5 at
1-2. She claims that Dr. Laryea (originally spelled Loria)
refused to see her and that Dr. Pate told her she was fine
after only briefly examining her. Id. at 3-4. She
further claims that medical professionals at the McPherson
Unit discontinued her treatment for this issue. Id.
the Court is a motion for summary judgment, a brief in
support, and a statement of facts filed by Dr. Hughes and
Hutchinson (Doc. Nos. 84-86) as well as a motion for summary
judgment, a brief in support, and a statement of facts filed
by Drs. Pate and Laryea (Doc. Nos. 92-94). The defendants
claim that Murphy did not exhaust available administrative
remedies with respect to her claims against them before she
filed this lawsuit. Murphy filed responses to the
defendants' motions (Doc. Nos. 96-97). Drs. Pate and
Laryea filed a reply (Doc. No. 98); Murphy filed another
response and addendum (Doc. Nos. 99-100); Drs. Pate and
Laryea filed a sur-reply (Doc. No. 103); and Murphy filed
another response (Doc. No. 108). For the reasons described
herein, the undersigned recommends that the defendants'
motions for summary judgment be granted.
Rule 56 of the Federal Rules of Civil Procedure, summary
judgment is proper if “the movant shows that there is
no genuine dispute as to any material fact and that the
moving party is entitled to a judgment as a matter of
law.” Fed.R.Civ.P. 56(a); Celotex v. Catrett,
477 U.S. 317, 321 (1986). When ruling on a motion for summary
judgment, the court must view the evidence in a light most
favorable to the nonmoving party. Naucke v. City of Park
Hills, 284 F.3d 923, 927 (8th Cir. 2002). The nonmoving
party may not rely on allegations or denials, but must
demonstrate the existence of specific facts that create a
genuine issue for trial. Mann v. Yarnell, 497 F.3d
822, 825 (8th Cir. 2007). The nonmoving party's
allegations must be supported by sufficient probative
evidence that would permit a finding in his favor on more
than mere speculation, conjecture, or fantasy. Id.
(citations omitted). An assertion that a fact cannot be
disputed or is genuinely disputed must be supported by
materials in the record such as “depositions,
documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes
of the motion only), admissions, interrogatory answers, or
other materials . . .”. Fed.R.Civ.P. 56(c)(1)(A). A
party may also show that a fact is disputed or undisputed by
“showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the
fact.” Fed.R.Civ.P. 56(c)(1)(B). A dispute is genuine
if the evidence is such that it could cause a reasonable jury
to return a verdict for either party; a fact is material if
its resolution affects the outcome of the case. Othman v.
City of Country Club Hills, 671 F.3d 672, 675 (8th Cir.
2012). Disputes that are not genuine or that are about facts
that are not material will not preclude summary judgment.
Sitzes v. City of West Memphis, Ark., 606 F.3d 461,
465 (8th Cir. 2010).
defendants argue they are entitled to summary judgment
because Murphy failed to exhaust available administrative
remedies as to her claims against them before she filed this
lawsuit. In support of their motions,  the defendants
submitted a declaration by Shelly Byers, the ADC's
Medical Grievance Coordinator, and the ADC's grievance
policy. Doc. No. 86-1.
Prison Litigation Reform Act (PLRA) requires an inmate to
exhaust prison grievance procedures before filing suit in
federal court. See 42 U.S.C. §1997e(a); Jones v.
Bock, 549 U.S. 199, 202 (2007); Burns v. Eaton,
752 F.3d 1136, 1141 (8th Cir. 2014). Exhaustion under the
PLRA is mandatory. Jones v. Bock, 549 U.S. at 211;
Hammett v. Cofield, 681 F.3d 945, 949 (8th Cir.
2012). “[T]he PLRA's exhaustion requirement applies
to all inmate suits about prison life whether they involve
general circumstances or particular episodes, and whether
they allege excessive force or some other wrong.”
Porter v. Nussle, 534 U.S. 516, 532 (2002). The PLRA
does not prescribe the manner in which exhaustion occurs.
See Jones v. Bock, 549 U.S. at 218. It merely
requires compliance with prison grievance procedures to
properly exhaust. See Id. Thus, the question as to
whether an inmate has properly exhausted administrative
remedies will depend on the specifics of that particular
prison's grievance policy. See id.
to the ADC's grievance policy, inmates are provided Unit
Level Grievance Forms as part of the Inmate Grievance
Procedure. See Doc. No. 86-1 at 6. To resolve a problem, an
inmate must first seek informal resolution by submitting a
Step One Unit Level Grievance Form within 15 days after the
occurrence of the incident. Id. at 7. Inmates are to
“specifically name each individual involved for a
proper investigation and response to be completed by the
ADC.” Id. at 8. An inmate must be
“specific as to the substance of the issue or complaint
to include the date, place, personnel involved or witnesses,
and how the policy or incident affected the inmate submitting
the form.” Id. at 7-8. A problem solver
investigates the complaint and provides a written response at
the bottom of the form. Id. at 8-9. If the inmate is
not satisfied with the resolution or the problem solver does
not respond within three working days, he may then complete
Step Two of the grievance procedure and submit the form as a
formal grievance. Id. at 10. If a formal grievance
is medical in nature, it is forwarded to the appropriate
medical personnel for response. Id. at 11. If the
inmate receives no response, or if the inmate is not
satisfied with the response, the inmate can appeal to the
Deputy Director for Health and Correctional Programs.
Id. at 12-14. Once the Deputy Director responds or
the appeal is rejected, the grievance process is exhausted.
Id. at 14. According to the ADC's grievance
policy, the entire grievance procedure should be completed
within 76 working days absent an extension or unforeseen
circumstances. Id. at 15. The grievance policy
specifically states that inmates must exhaust administrative
remedies at all levels of the procedure before filing a
federal civil rights lawsuit. Id. at 19.
brings Eighth Amendment and medical negligence claims against
the defendants based on an alleged denial of medical
treatment after her June 21, 2018 colon surgery allegedly
failed. Doc. No. 5. Byers reviewed Murphy's grievance
records and found that she did not file any medical grievance
after June 21, 2018, for which she received an appeal
response before filing this lawsuit on September 14, 2018.
ADC policy ...