United States District Court, E.D. Arkansas, Pine Bluff Division
ORDER
Kristine G. Baker, United States District Judge.
Before
the Court are the Proposed Findings and Recommendations
submitted by United States Magistrate Judge Joe J. Volpe
(Dkt. No. 44). Plaintiff Evatt Warner filed objections to the
Proposed Findings and Recommendations (Dkt. No. 46). After
careful consideration of the Proposed Findings and
Recommendations, the objections, and a de novo
review of the record, the Court adopts the Proposed Findings
and Recommendations as its findings in all respects (Dkt. No.
44).
The
Court writes separately to address Mr. Warner's
objections. Mr. Warner filed this action pursuant to 42
U.S.C. § 1983 alleging that defendant Rahkeem Hawthorne,
a correctional officer, allowed him to be attacked (Dkt. No.
2, at 5). Judge Volpe recommends dismissal without prejudice
of Mr. Warner's claims because there is no genuine issue
of material fact in dispute as to whether Mr. Warner failed
to complete and submit a “Unit Level Grievance
Form” within fifteen days after the occurrence of the
incident at issue as required by Arkansas Department of
Correction Administrative Directive 14-16 (Dkt. No. 44, at
7). In his objections, Mr. Warner argues that he “was
denied paperwork and signing of proper paperwork (grievances)
from multiple [sergeants], problem solvers . . . .”
(Dkt. No. 46). Mr. Warner also presents the affidavit of Cody
King, who states that he “was in administrative
segregation with Evatt Warner . . . from between the date
1/16/16 to 1/27/16 and witnessed Mr. Warner trying to no
avail to get a number of Sgts/problem solvers to bring
grievance form[]s and or sign his grievance forms.”
(Dkt. No. 48).
The
Court agrees with Judge Volpe that summary judgment as a
matter of law is appropriate on Mr. Warner's claims, as
no reasonable juror could conclude that Mr. Warner timely
filed a grievance under Administrative Directive 14-16 or
that the grievance process was unavailable to Mr. Warner. The
Prison Litigation Reform Act (“PLRA”) requires an
inmate to exhaust available 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) (per curiam). “[T]o properly exhaust
administrative remedies prisoners must ‘complete the
administrative review process in accordance with the
applicable procedural rules,' rules that are defined not
by the PLRA, but by the prison grievance process
itself.” Bock, 549, at 218 (quoting
Woodford v. Ngo, 548 U.S. 81, 88 (2006)). Compliance
with a prison's grievance procedures is, therefore, all
that is required by the PLRA to properly exhaust.
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.
The
undisputed record evidence is that, at the time Mr. Warner
alleges he was attacked, the grievance policy of the ADC was
Administrative Directive 14-16 and that Mr. Warner's
allegations are governed by that policy (see Dkt.
Nos. 38-1; 38-2, at 2-3). Administrative Directive 14-16
states that the first step of the grievance process is that
an inmate must complete and submit a Unit Level Grievance
form “within 15 days after the occurrence of the
[grieved] incident . . . .” (Dkt. No. 38-2, at
5).[1]
The prisoner must then present the grievance form to a
“designated problem-solver” or, if a designated
problem-solver is unavailable, to “any staff member
holding the rank of sergeant or above, ” at which point
the problem-solver or staff member must sign and date the
form (Id., at 6). The undisputed record evidence is
that Mr. Warner filed two grievances related to the
attack-CU-16-00152 and CU-17-120-and that both of those
grievances were submitted more than fifteen days after the
attack, which allegedly occurred on January 16, 2016 (Dkt.
Nos. 38-1, ¶¶ 30-32).
Since
there is no question that Mr. Warner's grievances were
untimely under Administrative Directive 14-16, the Court
turns to the question of whether ADC officials prevented Mr.
Warner from utilizing the grievance process. It is true that
a prisoner is not required to exhaust prison grievance
procedures if prison officials prevent that prisoner from
utilizing grievance procedures. See Miller v.
Norris, 247 F.3d 736, 740 (8th Cir. 2001). The Court
concludes that Mr. Warner and Mr. King's statements
regarding Mr. Warner's inability to file a grievance
following the alleged attack are insufficient to create a
genuine issue of material fact.
In his
own statement, Mr. Warner avers that he was placed in
segregation following the attack and not allowed
“proper paperwork.” (Dkt. No. 41, at 2). However,
Mr. Warner also alleges that, during this same time, he
grieved “the decision of the Disciplinary Officer to
the first step, ” and that the Warden overturned a
decision and gave Mr. Warner his class back, which indicates
that Mr. Warner during his segregation and lockdown was using
processes available to him (Dkt. No. 41, at 1). Further, as
Judge Volpe notes, Mr. Warner never mentioned his alleged
lack of access to grievance forms as the reason for his late
submission in his step-two, his appeal, or his complaint in
this case (Dkt. No. 44, at 7).
Additionally,
Mr. King avers that he “was in administrative
segregation with Evatt Warner . . . from between the date
1/16/16 to 1/27/16 and witnessed Mr. Warner trying to no
avail to get a number of Sgts/problem solvers to bring
grievance form[]s and or sign his grievance forms.”
(Dkt. No. 48). Even taking this statement as true, Mr. Warner
could have turned in his grievance form timely to an
appropriate prison official up to January 31, 2016, and Mr.
King does not aver that Mr. Warner was unable to do so after
January 27, 2016.
Accordingly,
viewing this record evidence in the light most favorable to
Mr. Warner, the Court concludes that no reasonable juror
could conclude that the ADC's grievance procedures were
unavailable to Mr. Warner. Thus, since it is uncontested that
Mr. Warner failed to grieve timely his claims against Mr.
Hawthorne, the Court concludes that summary judgment as a
matter of law in Mr. Hawthorne's favor is appropriate.
It is
therefore ordered that:
1. The
Court adopts the Proposed Findings and Recommendations in
their entirety as the Court's findings in all respects
(Dkt. No. 44);
2. The
Court grants Mr. Hawthorne's motion for summary judgment
and dismisses without prejudice Mr. Warner's claims
against Mr. Hawthorne for failure to exhaust administrative
remedies (Dkt. No. 38);
3. The
Court denies as moot Mr. Warner's motion to alter or
amend judgment, motion to appoint counsel, and motion for
trial and oral deposition (Dkt. Nos. 49, 53, 54);
4. The
Court certifies that, pursuant to 28 U.S.C. §
1915(a)(3), an in forma pauperis appeal this Order
and an accompanying ...