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Lane v. Avery

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

July 16, 2019



         The following Recommended Disposition (“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 the date of this Recommendation. If you do not file objections, Judge Moody 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 Adam Lane (“Lane”) is a prisoner in the Maximum Security Unit of the Arkansas Department of Correction (“ADC”). He has filed this pro se § 1983 action alleging that, while he was incarcerated at the Cummins Unit: (1) Defendant Lieutenant Kedrick R. Avery (“Avery”) used excessive force against him on March 26, 2018; and (2) Defendant Warden Christopher Budnik (“Budnik”) authorized Avery's conduct. Docs. 5 & 7.[1]

         Defendants have filed a Motion for Summary Judgment, a Brief in Support, and a Statement of Undisputed Material Facts, arguing that Lane's claims should be dismissed because he failed to exhaust the administrative remedies available to him at the ADC. Docs. 20, 21 & 22. Lane has filed a Response. Doc. 24. Thus, the issues are joined and ready for disposition.[2]

         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, 1141-42 (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 fifteen days of the alleged incident; (2) a “Step Two” formal unit-level grievance, raising that claim, within three days of receiving a response to the Step One informal resolution; and (3) an appeal to the appropriate Deputy Director. ADC Adm. Dir. 14-16 § IV(E) through (G) (“AD 14-16”).[3] The ADC's grievance policy requires that, in connection with each claim, an inmate must “specifically name each individual involved, ” and include a “brief statement that is specific as to the substance of the issue or complaint to include the date, place [and] personnel involved or witnesses.” AD 14-16 §§ IV(C)(4) & (E)(2) (emphasis added). The grievance forms themselves repeat these instructions to ensure prisoners are aware of them. AD 14-16, Att. 1 (“[B]e specific as to the complaint, date, … place, name of personnel involved and how you were affected.”). Finally, the ADC's grievance policy cautions prisoners that, if they fail to “exhaust their administrative remedies as to all defendants at all levels of the grievance procedure … their lawsuits or claims may be dismissed immediately” under the PLRA. AD 14-16 § IV(N); see also § IV(C)(4) & (D)(2) (both advising inmates to fully exhaust a grievance prior to filing a lawsuit).

         B. Analysis

         Although Lane filed a Response to Defendants' Motion for Summary Judgment, he addressed only the merits of his excessive force claim and did not contest any of the facts set forth in Defendants' Statement of Undisputed Material Facts that are relevant to the exhaustion issue. See Docs. 22 & 24. Accordingly, all of those facts, which form the basis for Defendants' Motion for Summary 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 Substituted Complaint, Lane alleges that, on March 26, 2018: (1) Avery came to his cell and tried to force him to accept a man of another race as a cellmate, when Lane's records show that he “cannot house outside [his] race”; (2) when Lane protested, Avery said Lane would be moved to punitive isolation; (3) when Lane explained that he was a Class 2 inmate who should be in administrative segregation, not punitive isolation, Avery left, but later returned and “hit [Lane] with a large poison gas, ” which “almost killed” him. According to Lane, Budnik “cleared” Avery's conduct. Doc. 5 at 4-5.

         Lane filed only one grievance that is relevant to the claims he is asserting against Defendants: CU-18-00403. Doc. 22 ¶ 23; see Doc. 20, Ex. B & Ex. C ¶¶ 17- 18 (Grigsby Decl.).[4] He initiated this grievance on March 27, 2018, by filing a Step One informal resolution which stated the following:

On 3-26-18 at approximately 3 pm, I was doing my daily prayer and reviewing my holy scriptures when Lt. Avery came to my door in a very unethical and aggressive manner stating I don't give no f* about nothing you're taking a celly who is not your race. I told him it is a well-known fact on documentation [that] I cannot cell/house with another race. I told him a lot of people discriminate against Hebrews and Asianics. He said he wanted to put me in the East Building. I told him I am Ad-Seg and I have a right to access to the news, and I am Class #2 and will be Class #1 in 3 days. He stormed off. I continued in my prayers. Next he came back and was mumbling something. I was trying to speak to the other officer present and he mased [sic] me with gas which got in my lungs, eyes, nose, hair and all over my belongings. I was escorted to East Building in great pain and suffering, thrown into a shower naked for 6 hours, then thrown in a cell ...

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