REGINALD R. EARLY APPELLANT
KEITH CROCKETT, CLAYBORN CARROLL, ROBERTA LEWIS, AND LAMON MAYO APPELLEES
FROM THE JEFFERSON COUNTY CIRCUIT COURT [NO. 35CV-10-279]
HONORABLE JODI RAINES DENNIS, JUDGE
Reginald R. Early, pro se appellant.
Rutledge, Att'y Gen., by: Gary Sullivan, Ass't
Att'y Gen., for appellee.
A. WOMACK, ASSOCIATE JUSTICE.
Reginald Early, an inmate in the Arkansas Department of
Corrections (ADC), appeals an order from the Jefferson County
Circuit Court granting summary judgment to Appellees Keith
Crockett, Clayborn Carroll, Roberta Lewis, and Lamon Mayo.
For reversal, Early argues that the circuit court erred in
granting summary judgment on his civil-rights claim. We
court provided a full recitation of the facts in Early v.
Crockett, 2014 Ark. 278, 436 S.W.3d 141. Early had filed
a failure-to-protect action against Appellees, as employees
of the ADC, stemming from an attack by Fred Hogan, a general
population inmate, in the shower area at the Tucker Maximum
Security Unit. In his complaint, Early brought causes of
action under 42 U.S.C section 1983, the Eighth Amendment to
the United States Constitution, and Arkansas law. The circuit
court granted summary judgment in favor of Appellees on the
basis of qualified immunity. In Early I, we affirmed
in part and reversed in part. We remanded for the circuit
court to consider Early's section 1983 claim under the
federal standard of deliberate indifference to determine
whether Appellees were entitled to qualified immunity in
their individual capacities.
remand, the circuit court considered Early's section 1983
claims under the deliberate-indifference standard. The court
noted that Early presented no proof to support his claim that
Appellees were deliberately indifferent to his safety. Thus,
the circuit court concluded that Appellees were entitled to
qualified immunity and granted their motion for summary
judgment. Early now brings this appeal.
Appointment of Counsel
first point on appeal, Early argues that the circuit court
committed procedural error by dismissing his section 1983
claim without making a ruling on his renewed motions for the
appointment of counsel. In criminal cases, the accused has a
constitutional right to counsel at trial. There is no
corresponding right to counsel in a postconviction
proceeding, or in a civil action. See Nelson v. Redfield
Lithograph Printing, 728 F.2d 1003 (8th Cir. 1984);
Virgin v. Lockhart, 288 Ark. 92, 702 S.W.2d 9
McElyea v. Babbitt, 833 F.2d 196 (9th Cir. 1987),
and Brown-Bey v. United States, 720 F.2d 467 (7th
Cir. 1983), Early argues that the circuit court's failure
to rule on his request for appointment of counsel before
granting summary judgment was an abuse of discretion.
However, McElyea is distinguishable because the
court also found that summary judgment was inappropriate due
to the existence of a genuine issue of material fact. 833
F.2d at 198. In Brown-Bey, while the court did find
there was an abuse of discretion by the circuit court for
failing to rule on the motion to appoint counsel, it also
held that the error was harmless by the clear lack of merit
in the appellant's case. 720 F.2d at 471; see also
Taylor v. Dickel, 293 F.3d 427 (8th Cir. 2002). In the
present appeal, even if the circuit court had abused its
discretion by failing to rule on Early's request for
counsel, his claims are without merit, as discussed below,
and thus any error on this point is rendered harmless.
Exhaustion of Administrative Remedies
next argues that the circuit court erred in dismissing his
claim against Appellee Lewis after finding he had not
exhausted his available administrative remedies.
Specifically, Early argues that he did not learn of
Lewis's identity until well after the time limit provided
for filing a grievance.
to the Prison Litigation Reform Act of 1995 (PLRA), prisoners
are barred from bringing an action under section 1983 until
all available administrative remedies have been exhausted. 42
U.S.C. § 1997e. The PLRA mandates administrative
exhaustion before an inmate files suit and the
plaintiff is required to file a proper grievance against
all defendants. See Jones v. Norris, 310
F.3d 610, 612 (8th Cir. 2002). The doctrine of exhaustion of
administrative remedies provides that no one is entitled to
judicial relief for a supposed injury until the prescribed
statutory remedy has been exhausted. See Ark. Prof'l
Bail Bondsman Lic. Bd. v. Frawley, 350 Ark. 444, 450, 88
S.W.3d 418, 421 (2002). In Booth v. Churner, 532
U.S. 731, 739, 741 (2001), the Supreme Court held that courts
have no discretion in excusing exhaustion. The failure to
exhaust administrative remedies is grounds for dismissal.
Douglas v. City of Cabot, 347 Ark. 1, 59 S.W.3d 430