United States District Court, E.D. Arkansas, Pine Bluff Division
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 ...