United States District Court, E.D. Arkansas, Pine Bluff Division
RPROPOSED FINDINGS AND RECOMMENDATION
following Recommendation has been sent to United States
District Judge D.P. Marshall 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.
Myron Thompson, an inmate at the Arkansas Department of
Correction's (ADC) Delta Regional Unit, filed this
pro se civil rights complaint against ADC Director
Wendy Kelley, Warden Darryl Golden, Deputy Warden Linda
Dykes, and officers Percy Arnold and Tonda Spencer. Doc. No.
2. Thompson alleges that Spencer used excessive force against
him during an incident which occurred on December 21, 2018.
Id. at 5-6. He further alleges Spencer retaliated
against him, and that Kelley, Golden, Dykes, and Arnold were
alerted about his complaints against Spencer but failed to
take corrective action. Id. at 6-7.
defendants filed a motion for summary judgment, a brief in
support, and a statement of facts claiming that Thompson had
not exhausted his claims against them before he filed this
lawsuit (Doc. Nos. 12-14). Despite the Court's order
notifying Thompson of his opportunity to file a response and
statement of disputed facts, he did not do so. Doc. No. 15.
Because Thompson failed to controvert the facts set forth in
defendants' statement of undisputed facts, Doc. No. 14,
those facts are deemed admitted. See Local Rule
56.1(c). For the reasons described herein, the undersigned
recommends the defendants' motion for summary judgment be
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 that they are entitled to summary judgment
because Thompson failed to exhaust his administrative
remedies with respect to them before he filed this lawsuit.
In support of their motion, the defendants submitted the
ADC's grievance policy (Doc. No. 12-1); a declaration by
Terri Grigsby, the ADC's Grievance Supervisor (Doc. No.
12-2); and a copy of Grievance DR-19-00018 (Doc. No. 12-3).
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); Jones v. Norris, 310 F.3d 610, 612
(8th Cir. 2002). Exhaustion under the PLRA is mandatory.
Jones v. Bock, 549 U.S. at 211. The 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.
to the ADC's grievance policy (AD 14-16), inmates are
provided Unit Level Grievance Forms as part of the Inmate
Grievance Procedure. Doc. No. 12-1 at 4. To resolve a
problem, an inmate must first seek informal resolution by
submitting a Step One Unit Level Grievance Form (“Step
One”) within 15 days after the occurrence of the
incident. Id. at 5. Inmates are to
“specifically name each individual involved for a
proper investigation and response to be completed by the
ADC.” Id. at 4. 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 5-6. A problem solver
investigates the complaint and provides a written response at
the bottom of the form. Id. If the inmate is not
satisfied with the resolution, he may then complete Step Two
of the grievance procedure and submit the form as a formal
grievance (“Step Two”). Id. at 8. If the
inmate receives no response, or if the inmate is not
satisfied with the response, the inmate can appeal to the
appropriate Chief Deputy/Deputy/Assistant Director.
Id. at 10-11. A written decision or rejection of an
appeal is the end of the grievance process. Id. at
12. 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 13. 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 17.
states in her declaration that she reviewed grievances
submitted by Thompson and found that he filed one grievance
relevant to his complaint allegations: Grievance DE-19-00018.
Doc. No. 12-2 at 1. Thompson submitted DR-19-00018 as a Step
One grievance on December 24, 2018. Doc. No. 12-3 at 6.
On 12-24-2018 @ approx. 10:51 pm I was in 3 BKS when LT
Spencer come in and approached me Regarding wearing my Field
jacket in the Day Room & Advised me to go upstairs in
which I complied And proceeded by asking “why are you
messing with me when I just wrote a grievance on you”
LT Spencer Replied I'm tired of your Shit catch the cuffs
I protested by Stating I Havent done anything this is
Retaliation I want to note I was in no way being aggressive
towards LT Spencer only trying to avoid her I turned my Back
& Stated I need to Speak to a Captain or major She then
pulled the tazor Stating Imma Knock your ass out So I ran She
then Deployed ...