Paxton v. Gray

          RECOMMENDED DISPOSITION

         The following Recommended Disposition (“Recommendation”) has been sent to United States District Judge J. Leon Holmes. 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 the date of this Recommendation. If you do not file objections, Judge Holmes can adopt this Recommendation 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

         Plaintiff Barry Paxton (“Paxton”) filed this pro se § 1983 action alleging that, while he was a prisoner at the Ester Unit of the Arkansas Department of Correction (“ADC”), ^[1] Defendant Assistant Warden Michelle Gray threatened to transfer him in retaliation for exercising his constitutional rights, and then followed through on that threat by having him transferred to the RLW Unit. Docs. 2 & 7.^[2]

         Defendant has filed a Motion for Summary Judgment, a Brief in Support, and a Statement of Undisputed Material Facts, arguing that Paxton's claims should be dismissed because he failed to exhaust the administrative remedies available to him at the ADC. Docs. 20, 21 & 22. Although notified of his right to file a Response, Paxton did not respond, and the time for doing so has passed.^[3] Thus, the issues are joined and ready for disposition.^[4]

         II. Discussion

         A. ADC Procedures Governing the Exhaustion of Administrative Remedies

         The Prison Litigation Reform Act (“PLRA”) requires prisoners to exhaust their administrative remedies before filing a § 1983 action: “No 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). The purposes of the exhaustion requirement include “allowing a prison to address complaints about the program it administers before being subjected to suit, reducing litigation to the extent complaints are satisfactorily resolved, and improving litigation that does occur by leading to the preparation of a useful record.” Jones v. Bock, 549 U.S. 199, 219 (2007); see also Woodford v. Ngo, 548 U.S. 81, 88-91 (2006).

         The PLRA requires inmates to: (1) fully and properly exhaust their administrative remedies as to each claim in the complaint; and (2) complete the exhaustion process before filing an action in federal court. Jones, 549 U.S. at 211, 219-20, 223-24; Woodford, , 548 U.S. at 93-95; Burns v. Eaton, 752 F.3d 1136, 1141-Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011). 42 (8th Cir. 2014). Importantly, “it is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion.” Jones, 549 U.S. at 218; see also Woodford, 548 U.S. at 90 (explaining that administrative exhaustion “means using all steps that the agency holds out, and doing so properly so that the agency addresses the issues on the merits”). Thus, to satisfy the PLRA, a prisoner must comply with the exhaustion requirements of the incarcerating facility before he can properly file a § 1983 action.

         To fully and properly exhaust administrative remedies, an ADC prisoner must file: (1) a “Step One” informal resolution raising the claim with the designated unit-level problem-solver “within 15 days after the occurrence of the incident”; (2) a “Step Two” formal unit-level grievance raising that claim; and (3) an appeal to the appropriate Deputy Director. ADC Adm. Dir. 14-16 § IV(E) through (G) (“AD 14-16”).^[5] To properly complete an appeal to the Deputy Director, the ADC grievance policy requires an inmate to “include the original Unit Level Grievance Form (Attachment I), which describes the matter originally grieved, and … the Acknowledgment or Rejection of Unit Level Grievance (Attachment II) if the inmate is asserting the grievance was improperly rejected.” AD 14-16 § IV(G)(2) (“If these … pages are not submitted with the inmate's appeal portion completed, the appeal may be returned to the inmate as rejected.”).

         B. Analysis

         Paxton did not respond to Defendant's Motion for Summary Judgment or otherwise contest any of the facts set forth in Defendant's Statement of Undisputed Material Facts (Doc. 22). Accordingly, all of those facts, which form the basis for her Motion for Summary of Judgment, are now deemed to be admitted. See Local Rule 56.1(c); Reasonover v. St. Louis County, Mo., 447 F.3d 569, 579 (8th Cir. 2006) (holding that grant of summary judgment motion was proper where non-moving party had not filed response to motion, district court had under local rules deemed as admitted facts set forth in summary judgment motion, and summary judgment was appropriate based on uncontroverted facts set forth in motion).

         In his Complaint and Amended Complaint, Paxton alleges that, while he was at the ADC's Ester Unit, Defendant violated his constitutional rights by: (1) verbally threatening to “write [him] up and ship [him]” for writing grievances and contacting the Department of Veterans Affairs about “matters and problems” at the Ester Unit; and (2) following through on that threat by having him transferred to the RLW Unit. Doc. 2 at 3-4; Doc. 7 at 2. It appears that Paxton was transferred to the RLW Unit in October or November 2017.

         Paxton filed only one grievance that is relevant to the claims he is asserting against Defendant: ESU-18-00013. Doc. 22 ¶¶ 17-19; see Doc. 22, Ex. B ¶¶ 6-8 (Brown Decl.) & Ex. C.^[6] Paxton initiated this grievance on January 7, 2018, after his transfer to the RLW Unit, by filing a Step One informal resolution which stated the following:

While I was at Ester Unit I was verbally threaten by Warden Gray on two occasions. She told me “to have patience” and how dare I use her name in letters to the Director and Gov office. Then told me that anything else that I was getting wrote up and ship. (This was said numerous times.) Also there was no forms or legal materials in the library even though this is the veterans [barracks]. Also the legal mail of veterans was always getting open before it was handed out. This occurred on 17 Oct [20]17, 13 Oct [20]17, [and] 4 Oct [20]17. By not having materials for veterans ...