Early v. Crockett

          APPEAL FROM THE JEFFERSON COUNTY CIRCUIT COURT [NO. 35CV-10-279] HONORABLE JODI RAINES DENNIS, JUDGE

          Reginald R. Early, pro se appellant.

          Leslie Rutledge, Att'y Gen., by: Gary Sullivan, Ass't Att'y Gen., for appellee.

          SHAWN A. WOMACK, ASSOCIATE JUSTICE.

         Appellant 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 affirm.

         I. Facts

         This 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.

         On 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.^[1]

         II. Appointment of Counsel

         For his 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 (1986).

         Citing 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.

         III. Exhaustion of Administrative Remedies

         Early 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.

         Pursuant 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 (2001). ...