Griffin v. Wood

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

CENTRAL DIVISION

TONY ANTHONY GRIFFIN PLAINTIFF

ADC #150964

V. No. 4:21-CV-00192-BRW-JTR1

MATTHEW WOOD, Nurse,

Barbara Esther Unit, ADC, et al. DEFENDANTS

MEMORANDUM OPINION AND ORDER

I. Introduction

On February 20, 2021, Plaintiff Tony Anthony Griffin (“Griffin”), who was

then a prisoner in the Ester Unit (“ESU”) of the Arkansas Division of Correction

(“ADC”), signed his pro se § 1983 Complaint, under penalty of perjury.2 Doc. 1 at

5; Doc. 1-1 at 6. Thereafter, on an unknown date, Griffin placed his Complaint in

the ESU mailbox for delivery to the Clerk of the Court of the Eastern District of

Arkansas. Doc. 1 at 14; Doc. 1-1 at 15. On March 10, 2021, the Clerk of the Court

received Griffin’s Complaint, filed stamped it “March 10, 2021,” and docketed it

as a new § 1983 action. Doc. 1 at 1.

1 By consent of the parties, this case was referred to a United States Magistrate Judge to

conduct all proceedings and order the entry of a final judgment, in accordance with 28 U.S.C. §

636(c) and Fed. R. Civ. P. 73. See Doc. 39.

2 Griffin is now incarcerated in the ADC’s Pine Bluff Unit. Doc. 52.

Griffin’s Complaint alleges that Defendants Nurse Matthew Wood

(“Wood”) and Medical Administrator Mary Carter (“Carter”) failed to provide him

with adequate medical care for his “severe bean allergy.” Doc. 1. According to

Griffin, Wood and Carter: (1) eliminated his “no bean script;” (2) refused to place

him on a bean-free diet; and (3) delayed and/or denied him appropriate medical

care for his allergic reactions to beans. Doc. 1.

On October 1, 2021, Wood and Carter (collectively “Defendants”) filed a

Motion for Summary Judgment, Brief in Support, and Statement of Undisputed

Facts asserting that Griffin failed to fully and properly exhaust his administrative

remedies before he initiated this action. Docs. 36-38. Defendants attached to their

Statement of Undisputed Facts: (1) ADC Administrative Directive (“AD”) 19-34

(Doc. 37-1); (2) Griffin’s relevant grievance records (Doc. 37-2), and (3) the

Declaration of Jacqueline Padgett (“Padgett”), the ADC’s Medical Grievance

Coordinator (Doc. 37-3).

On October 13, 2021, the Court entered an Order advising Griffin of his

right to file a Response to the Motion for Summary Judgment. Doc. 40. The Court

clearly explained to Griffin that, “[a]t the summary judgment stage, a plaintiff

cannot rest upon mere allegations and, instead, must meet proof with proof.” Id. at

1. Thus, Griffin was on notice that his Response to Defendants’ Motion for

Summary Judgment “should include his legal arguments, as well as affidavits,

prison records, or other evidence establishing that there is a genuine issue of

material fact that must be resolved at a hearing or trial.” Id.

Finally, the Order advised Griffin of his obligations under Local Rule 56.1:

[P]ursuant to Local Rule 56.1, Plaintiff must separately file a

“short and concise statement of material facts as to which he contends

a genuine issue exists to be tried.” Defendants’ Statement of

Undisputed Material Facts (Doc. 37) contains room for Plaintiff to

write, below each numbered paragraph, whether he “agrees” or

“disagrees” with Defendants’ factual statement. If Plaintiff disagrees,

he must explain, in the provided space, why he disagrees and

include a citation to the evidence he is relying on to support his

version of the disputed fact.

Doc. 40 at 1-2 (emphasis in original). It also explained to Griffin that, if he failed

to timely and properly file a Response and Statement of Disputed Facts, it would

result in “all of the facts in Defendants’ Statement of Undisputed Facts being

deemed undisputed by [him].” Id. at 2.

Griffin filed two Responses to Defendants’ Motion for Summary Judgment.

Doc. 41 & 43. Neither of these Responses were supported by an Affidavit or sworn

declaration. Id. As Defendants point out in their Reply, Griffin did not “meet proof

with proof” or comply with Local Rule 56.1. Doc. 42. Thus, they contend all of the

facts set forth in their Statement of Undisputed Facts should be deemed to be

admitted. Id.

Griffin later filed a Sur-Reply, which also was unsupported by an Affidavit

or sworn declaration. Doc. 44. Thus, the only properly presented facts the Court

can consider from Griffin are the ones he stated in his verified Complaint. Because

none of those facts controvert or dispute any of the facts in Defendants’ Statement

of Undisputed Facts, all of the facts in Defendants’ Statement of Undisputed Facts

are now deemed to be admitted by Griffin, pursuant to Rule 56(c) of the Federal

Rules of Civil Procedure and Eastern District of Arkansas Local Rule 56.1(c).3

II. Discussion

A. To Fully and Properly Exhausted His Administrative Remedies, Griffin

Was Required to Complete the ADC’s Three Step Exhaustion Process

Before He Filed This Action

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

3 Local Rule 56.1 provides, in relevant part:

In addition to the requirements set forth in Local Rule 7.2, the following

requirements shall apply in the case of motions for summary judgment.

(a) Any party moving for summary judgment pursuant to Rule 56 of the Federal

Rules of Civil Procedure, shall annex to the notice of motion a separate, short and

concise statement of the material facts as to which it contends there is no genuine

dispute to be tried.

(b) If the non-moving party opposes the motion, it shall file, in addition to any

response and brief, a separate, short and concise statement of the material facts as

to which it contends a genuine dispute exists to be tried.

(c) All material facts set forth in the statement filed by the moving party pursuant

to paragraph (a) shall be deemed admitted unless controverted by the statement

filed by the non-moving party under paragraph (b). (Emphasis added).

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 also requires prisoners to: (1) fully and properly exhaust their

available 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); Johnson v. Jones, 340 F.3d 624, 626-28 (8th

Cir. 2003). 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, Griffin must

comply with the ADC’s exhaustion requirements before he can properly bring

those claims in a § 1983 action.

The relevant ADC directives and regulations governing exhaustion require

that, in connection with each claim, a prisoner must, among other things: (1)

“specifically name each individual involved;” (2) state only one problem or issue

per grievance; and (3) 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.” See ADC Adm. Dir. (“AD”) 19-34, § IV(C)(4), (D)(2), & (E)(2). The

grievance forms themselves also contain these instructions to ensure prisoners are

aware of them. Id. at Att. 1 (“Briefly state your one complaint/concern and be

specific as to the complaint, date, place, name of personnel involved and how you

were affected.”). If an ADC inmate wishes to grieve more than one issue, he or she

“must use a separate [grievance] form for each issue[, as] [o]nly one issue will be

addressed in the response to a grievance.” Id. at § IV(D)(2). Any [a]dditional

problems/issues contained in the grievance will not be addressed and will not be

considered as exhausted.” Id. Finally, the ADC’s 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. Id. at § IV(N) (emphasis added); see also Id. at §

IV(C)(4) & (D)(2) (both advising inmates to fully exhaust a grievance before filing

a lawsuit).

Thus, with respect to his medical claims against Defendants, Griffin was

required to fully and properly exhaust the ADC’s three-step administrative

grievance process. Id. at §§ IV(D)-(G). This required him to file: (1) a “Step One”

informal resolution raising his medical issue with the designated unit-level

problem-solver, within 15 working days of the incident; (2) a “Step Two” formal

grievance raising his claims with the Health Services Administrator, within three

working days of the denial of the informal resolutions for each of his claims; and

(3) a “Step Three” appeal to the ADC Deputy Director for Health and Correctional

Programs, within five working days of the Health Services Administrator’s

Decision on each of his grievances. AD 19-34 § IV(E)-(G)).

B. The Undisputed Material Facts

The undisputed material facts establish the following:

1. On December 4, 2020, Griffin was transferred to the ESU. See

Defendants’ Statement of Undisputed Facts, Doc. 37 at ¶ 9.

2. On February 20, 2021, Griffin signed his § 1983 Complaint under

penalty of perjury. Doc. 1 at 6; Doc. 37 at ¶ 2, n. 1.

3. Thereafter, but at the latest, on March 9, 2021, Griffin placed his §

1983 Complaint in the ESU mailbox for mailing to the United States District Court

for the Eastern District of Arkansas for filing.4 Doc. 1 at 15; Doc. 37 at ¶ 2.

4 As previously indicated, the Clerk’s Office received and filed Griffin’s Complaint on

“March 10, 2021.” See Doc. 1 at 1. The Court takes judicial notice that the latest possible date

Griffin could have deposited his Complaint into the ESU mailbox was March 9, 2021, one day

before it was received by the Clerk’s Office in Little Rock and then file-marked “March 10,

2021.” Under the prison mailbox rule, Griffin’s Complaint, as a matter of law, was filed, at the

latest, on March 9, 2021, one day before it was received by the Clerk of the Court. See Sulik v.

Taney County, 316 F.3d 813, 815 (8th Cir. 2003), rev’d on other grounds, 393 F.3d 765 (8th Cir.

2005) (under the “prison mailbox rule,” a prisoner’s § 1983 Complaint is deemed “filed” when

he places it in the prison’s internal mail system).

4. On March 10, 2021, the Clerk’s Office received Griffin’s § 1983

Complaint and file-marked it “March 10, 2021.” Doc. 1 at 1; Doc. 37 at ¶ 2.

5. Between December 4, 2020, the date Griffin was transferred to the

ESU, and March 9, 2021, the latest possible date his § 1983 Complaint was filed

under the prison mailbox rule, Griffin filed four grievances: (1) ESU20-00218: (2)

ESU20-00228; (3) ESU21-00016; and (4) ESU21-00017. Doc. 37 at ¶ 9; see also,

Padgett Declaration, Doc. 37-3 at 1-2.

6. In Grievance ESU20-00218, Griffin did not name or otherwise refer

to either Wood or Carter. Doc. 37-2 at 4; Doc. 37 at ¶ 10. Instead, ESU20-00218

specifically stated that “[t]his [grievance is] on Ms. Harris at Ester Unit,” and

complained about her giving him a tray with bean products on it.5 Doc. 37-2 at 4.

Ms. Harris is not a party to this action. Because this grievance, which Griffin fully

exhausted, did not name either of the Defendants or raise any complaints against

them, Griffin cannot rely on ESU20-00218 to establish that he fully and properly

exhausted any of the claims he is asserting against the Defendants in this action.

5 In his informal resolution, Griffin complained about “Ms. Harris” serving him corn beef

hash, which he believed contained soybean products. Doc. 37-2 at 4. The Step One response

stated: “Per kitchen supervisor C. Harris, beans are not served for breakfast chow. Also after

examining ingredients in corn beef hash, there is no beans/soybean products in it.” Id. Thereafter,

Griffin timely filed a Step Two formal grievance, designated as Grievance ESU20-00218, which

the Warden found to be without merit, reiterating that there were no beans or soybeans in the

corn beef hash. Id. at 3. The Deputy Director concurred with the Warden and denied Griffin’s

Step Three appeal on January 26, 2021. Id. at 1.

7. Griffin’s Step One informal resolution, which was later designated as

grievance ESU20-00228, specifically asserted inadequate medical care and

retaliation claims against only Defendant Wood for serving him a food tray with

beans on it, despite knowing about his “serious bean allergy.” Doc. 37-2 at 8. After

the problem-solver responded that Griffin had been “evaluated by a qualified

provider,” and there was “no supporting evidence in [his] records of [a bean]

allergy,” Griffin timely filed his Step Two formal grievance. Id.

8. Defendant Carter, the Step Two decision-maker, found the grievance

to be without merit because Griffin’s “medical record d[id] not support a bean

allergy.” Id. at 6. Griffin timely filed a Step Three appeal in which he asserted that:

(1) he has a bean allergy; (2) his “medical record shows the evidence;” and (3)

Wood and Carter were retaliating against him by refusing to look at his entire

medical record.6 Id.

9. The Deputy Director’s Decision, which is dated March 10, 2021,

recited Griffin’s claims against Wood and Carter, and then stated: “A review of

your Electronic Medical Records indicates currently and at the time of your

Informal Resolution an allergy to beans is not listed on your medical records.” Id.

at 5. Thus, the Deputy Director’s Step Three decision was dated and issued at least

6 Griffin raised this retaliation complaint against Carter for the first time in his Step Two

grievance, which means, as to Carter, this grievance was not properly and fully exhausted.

one day after Griffin initiated this action, which at the latest was on March 9, 2021,

when he placed his Complaint in the ESU mailbox.

10. In Griffin’s Step One informal resolution, which was later designated

grievance ESU21-00016, Griffin complained that Defendant Wood refused to

provide medical care for his bean allergy and refused to “renew his [no-bean]

script.” Doc. 37-2 at 11. At Step Two, Carter found this grievance to be without

merit after she reviewed Griffin’s medical records and found “no documented

allergy to beans.” Id. at 10.

11. In his Step Three appeal of ESU21-00016, Griffin accused Carter of

lying, claiming he had been diagnosed with a bean allergy, and a doctor had issued

him a no-bean script. Id. at 10. On March 31, 2021, the Deputy Director denied

Griffin’s Step Three appeal because the grievance was without merit. Id. at 9.

Thus, Griffin completed the exhaustion of ESU21-00016 several weeks after he

initiated this action on or before March 9, 2021. See ¶¶ 3-5, supra.

12. In the informal resolution, which later become Grievance ESU21-

00017, Griffin again complained that Wood and Carter refused to update his “no

bean script” and failed to provide him adequate medical treatment. Doc. 37-2 at

15. The Step One decision-maker responded that “simply possessing a script at one

point in time (which [she could] not locate) is not a diagnosis. GERD/acid reflux

[is] not an allergic reaction. Place a sick call for reflux issues.” Id.

13. Defendant Carter, the Step Two decision-maker, denied ESU21-

00017 because Griffin had no medically documented allergy to beans. Id. at 13.

14. Griffin’s Step Three appeal stated that he had been diagnosed with a

bean allergy while at the ADC’s North Central Unit and had been issued a no-bean

script there, which should be in his medical records. Id. Griffin also pointed out

that the Health Services Response was “the second time Ms. Carter has answer[ed]

this grievance.” Id. On April 2, 2021, more than three weeks after Griffin initiated

this action, the Deputy Director’s Decision “upheld” the medical department’s

response and found ESU21-00017 without merit. Id. at 12.

C. Based on the Undisputed Facts Griffin Initiated This Action

Before He Had Fully Exhausted His Administrative Remedies on

Any of His § 1983 Claims

1. Grievance ESU20-00218 Did Not Name Wood or Carter or

Assert Any Claims Against Them

Griffin did not name or otherwise refer to Wood or Carter in Grievance

ESU20-00218. Doc. 37-2 at 4; Doc. 37 at ¶ 10. Nor did ESU20-00218 assert any

claims against them. Id. Instead, in ESU20-00218, Griffin complained only about

“Ms. Harris” serving him bean products. Doc. 37-2 at 4. Ms. Harris is not a party

to this lawsuit.

Accordingly, none of Griffin’s claims against Wood or Carter—the only two

Defendants in this § 1983 action—were administratively exhausted in ESU20-

00218. See AD 19-34 § IV(C)(4) (“A Grievance must specifically name each

individual involved in order that a proper investigation and response may be

completed …. An inmate who failed to name all parties during the grievance

process may have his or her lawsuit dismissed by the court … for failure to exhaust

against all parties.”).

2. Grievances ESU20-00228, ESU21-00016, and ESU21-00017

Were Not Fully Exhausted Before Griffin Filed this § 1983

Action On or Before March 9, 2021

a. Grievance ESU20-00228

On March 10, 2021, the Deputy Director issued his Step Three decision

denying appeal of ESU20-00228. Doc. 37-2 at 5. Thus, on that date, Griffin

completed the exhaustion process on the inadequate medical care and retaliation

claims he is asserting against Wood. Id. Because he did not name Carter in the

informal resolution, Griffin cannot rely on that grievance to establish his

exhaustion of any of his claims against her. However, because Griffin initiated this

§ 1983 action on or before March 9, 2021, he did so at least one day before he

completed the exhaustion process on March 10, 2021. This means he cannot rely

on ESU20-00228 to establish that he properly exhausted any of his claims against

either Wood or Carter.

The PLRA requires a prisoner to fully exhaust his administrative remedies

before initiating a § 1983 action. 42 U.S.C. § 1997e(a). Under the “prison mailbox

rule,” a prisoner’s § 1983 Complaint is deemed “filed” when he places it in the

prison’s internal mail system. Sulik v. Taney County, 316 F.3d 813, 815 (8th Cir.

2003), rev’d on other grounds, 393 F.3d 765 (8th Cir. 2005). The undisputed

material facts establish that, at the latest, Griffin initiated this action on March 9,

2021, the last possible date (viewing the facts in a light most favorable to him) he

could have deposited his Complaint in the ESU mailbox and have that document

received by the Clerk’s Office in Little Rock and file-marked “March 10, 2021.”7

Because Griffin’s § 1983 Complaint was placed in the ESU mailbox at least

one day before the Deputy Director dated and entered his March 10, 2021 Step

Three decision denying Grievance ESU20-00228, Griffin did not completely

exhaust ESU20-00228 before he initiated this action on or before March 9, 2021.

See Hastings v. Wilbur, Case No. 3:20-cv-160-DPM-JJV, 2021 WL 2444166 (E.D.

Ark. June 15, 2021) (rejecting argument that prisoner’s grievance was fully

exhausted on the same day his § 1983 complaint was docketed, because “the

complaint was deemed ‘filed’ when [prisoner] mailed it—not when the Clerk

received and docketed it”) (citing Sulik, 316 F.3d at 815).

b. Grievance ESU21-00016

The Deputy Director’s Step Three decision denying ESU21-00016 is dated

March 31, 2021, several weeks after Griffin filed his § 1983 Complaint in this

7 Griffin’s Response to Defendants’ Motion for Summary Judgment seems to

acknowledge his understanding of the prison mailbox rule: “Griffin does not have anything to do

with the mail once he drop[s] it in the mail box.” Doc. 41 at 1.

case. Id. at 9; Doc. 1 at 1. Accordingly, Griffin did not properly exhaust any of his

claims in ESU21-00016 before initiating this action.

c. Grievance ESU21-00017

The Deputy Director’s Step Three decision denying ESU21-00017 is dated

April 2, 2021, more than three weeks after Griffin initiated this action on or before

March 9, 2021. Doc. 37-2 at 12; Doc. 1. Accordingly, Griffin did not properly

exhaust any of his claims in ESU21-00017 before he initiated this action.

3. Griffin’s Argument the ADC’s Exhaustion Process Was

“Unavailable” to Him Is Without Merit

In an effort to excuse his failure to fully exhaust his claims, Griffin argues

that the ADC’s grievance process was “unavailable” to him because the ADC

grievance policy prohibited Carter from being involved as a decision-maker on

ESU21-00016 and ESU21-00017. Docs. 41 & 43.

AD 19-34 provides that, “[t]he HSA, or designee, should not respond to a

grievance that is alleging misconduct by that individual unless the inmate still has

another step in the grievance process to challenge the conduct.” AD 19-34 §

IV(F)(5)(a) (emphasis added). Here, while Carter, at Step Two, denied ESU21-

00016 and ESU21-00017, Griffin still had another step to challenge Carter’s

decision to the Deputy Director at Step Three. Doc. 37-2 at 13. Thus, Carter’s

denial of ESU21-00016 and ESU21-00017, at Step Two, was not a violation of the

ADC’s grievance policy and did not make the grievance procedure “unavailable”

to Griffin.

Further, nothing about Carter’s role in ESU21-00016 and ESU21-00017, at

Step Two, prevented Griffin from fully exhausting his administrative remedies on

those claims, which he successfully completed when the Deputy Director denied

his Step Three appeals of those grievances.8 See Porter v. Sturm, 781 F.3d 448,

452 (8th Cir. 2015) (“[prison] official’s non-compliance [with the grievance

procedure] did not cause remedies to be unavailable,” where plaintiff was not

prevented from utilizing the grievance procedures).

Accordingly, Griffin’s argument that the ADC’s exhaustion process was not

available to him, in connection with ESU21-00016 and ESU21-00017, is without

merit. See Ross v. Blake, 578 U.S. 632, 642-44 (2016) (a prisoner must properly

exhaust all “available” remedies, which the Court narrowly defined as all remedies

that are “capable of use”).9

8 Because Griffin initiated this action on or before March 9, 2021, weeks before he had

fully exhausted ESU21-00016 and ESU21-00017, any arguments about Carter’s involvement in

those grievances are also moot.

9The Court, in Ross, made it clear that administrative remedies are “unavailable” to

prisoners in three narrowly proscribed circumstances, which “will not often arise”: (1) when the

process cannot be completed because it is a “dead end,” with prison officials “unable or

consistently unwilling” to provide any relief; (2) when the administrative scheme is “so opaque

that it becomes, practically speaking, incapable of use”; and (3) when prison officials thwart the

inmate through “machination, misrepresentation, or intimidation.” Ross, 578 U.S. at 642-44.

None of those exceptions apply here.

III. Conclusion

IT IS THEREFORE ORDERED THAT Defendants’ Motion for Summary

Judgment is GRANTED, and this case is DISMISSED, WITHOUT PREJUDICE,

for lack of exhaustion.

DATED this 22nd day of August, 2022.

UNITED STATES MAGISTRATE JUDGE

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