# Walton v. Voss

> District Court, W.D. Arkansas · April 19, 2021

URL: https://www.frixlaw.com/law-library/cases/10632158

## Case

- **Court:** District Court, W.D. Arkansas
- **Decided:** April 19, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION

MARCUS WALTON PLAINTIFF

v. Civil No. 6:20-cv-06033

DILLION R. VOSS, SERGEANT,
OUACHITA RIVER UNIT, ET AL. DEFENDANTS

REPORT AND RECOMMENDATION
The Plaintiff, Marcus Walton, originally filed his pro se action on March 11, 2020, in the
Eastern District of Arkansas pursuant to 42 U.S.C. § 1983. (ECF No. 1). On March 19, 2020, the
matter was transferred to this Court. (ECF No. 3). On March 20, 2020, Plaintiff’s application to
proceed in forma pauperis was granted. (ECF No. 6). The remaining claims in this matter are
contained in the Third Amended Complaint, as supplemented by Plaintiff’s Motion to Supplement.
(ECF No. 58, 61, 79).
Before the Court is Defendants’ Motion for Summary Judgment (ECF No. 88) based on
exhaustion, and the Plaintiff’s response thereto. (ECF No. 95). Also before the Court are
supplemental pleadings filed by the parties with respect to the pending Motion: Declaration of
Gladys Evans (ECF No. 111) filed by the Defendants; Notice (ECF No. 113) filed by the Plaintiff;
and Reply (ECF No. 114) filed by the Plaintiff.
The Motion is now ripe for decision. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)
and (3)(2011), the Honorable Susan O. Hickey, Chief United States District Judge, referred this
case to the undersigned for the purpose of making a Report and Recommendation.
I. FACTUAL BACKGROUND
Plaintiff’s first claim in his Third Amended Complaint is for “excessive force” and is stated
against Defendants Dillion R. Voss, Ebony Harris, Shacoya Lewis, Tomisha Ivory, and Dillion
Jennings, in their individual capacity only. (ECF No. 58 at 5). Plaintiff lists the date of occurrence
as “1-26-2020” and states: “Ebony Harris struck plaintiff 5 or 6 times in face for no reason while
incoherent on ground, as well as Dillion Jennings and Shacoya Lewis struck plaintiff with state
issued radio, Dillion R. Voss struck plaintiff with brass knuckle style cooper.” (ECF No. 58 at 5).
Plaintiff’s second claim is also for “excessive force” with respect to “1-26-2020.” (ECF
No. 58 at 6). The claim is stated against Defendants Dillion R. Voss, Ebony Harris, Shacoya

Lewis, and Tomisha Ivory, in their personal capacity only. Id. Plaintiff states: “[h]ad two teeth
knocked out, severe [sic] chronic migraine [sic] headaches from blows by all defendants to the
head, and blunt force trauma to my back blood in urine and loss of hearing in left ear.” (ECF No.
58 at 6).
Plaintiff’s third claim is for “due process of law denial of medical” with the date of
occurrence of “2-6-2020.” (ECF No. 58 at 7). Plaintiff names Defendants Sedrick Franklin, Flora
Washington, James Gipson, and Dale Reed, in their personal capacity only. Id. Plaintiff states he
was “[d]enied my right to medical treatment and due process of law.” Id. Plaintiff’s third claim
is supplemented by the information included in Plaintiff’s pleading docketed as Motion to
Supplement. (ECF No. 61). With respect to Sedrick Franklin, Plaintiff states: “procedural due
process, denial of medical care. Defendant put in false reports that denied plaintiff right to a report
hearing and denied him right to medical care which is a violation of amendment 8 also 14 . . .
denied the plaintiff liberty without due process of law.” (ECF No. 61 at 1). With respect to Flora
Washington, Plaintiff states: “substantial due process, also procedural due process. Defendant

placed plaintiff on involuntary treatment program which caused a . . . liberty denial and also signed
papers for the plaintiff that he was unaware of to admit him for the treatment program. Also denied
him the right to appear before the classification committee.” (ECF No. 61 at 2). With respect to
James Gipson, Plaintiff states: “procedural due process, substantial due process. Defendant is
liable for the due process violation by reason of his failure to correct them on administrative appeal
in course of his supervisory responsibilities and affirmed the plaintiff’s placement and conviction.”
(ECF No. 61 at 2). With respect to Dale Reed, Plaintiff states: “procedural due process, substantial
due process. Defendant is liable for due process violation by reason of his failure to correct them
on administration appeal in course of his supervisory responsibilities and affirmed the plaintiff’s
placement and conviction.” (ECF No. 61 at 2).

Plaintiff seeks both compensatory and punitive damages as relief for his claims.
Specifically, Plaintiff seeks “350,000 in compensatory damages . . . 200.00 a day . . . pain and
suffering for my depression mental stability being away from my children.” (ECF No. 58 at 8).
In the instant Motion, the Defendants argue that they are entitled to summary judgment
because Plaintiff did not exhaust his administrative remedies as required by the Prison Litigation
Reform Act, 42 U.S.C. § 1997e.
The Plaintiff denies that the Defendants are entitled to summary judgment.
Defendants’ Motion for Summary Judgment attaches several exhibits: (1) Declaration of
Terri Grigsby Brown (ECF No. 88-1); (2) Arkansas Department of Correction Administrative
Directive concerning Grievance Procedure for Offenders (ECF No. 88-2); (3) Plaintiff’s Inmate
Grievances and associated documents (ECF No. 88-3); (4) Declaration of Sgt. Sedrick Franklin
(ECF No. 88-4); and (5) Arkansas Department of Correction Administrative Directive concerning
Disciplinary Rules and Regulations (ECF No. 88-5).

Plaintiff has responded to the Defendants’ Motion, attaching his Declaration as support.
(ECF No. 95).
After reviewing the summary judgment pleadings submitted, I find the following material
facts not in dispute:
Plaintiff Marcus Walton in an inmate with the Arkansas Department of Corrections1
(“ADC”) currently housed at Varner SuperMax.
Terri Grigsby Brown is the Inmate Grievance Supervisor at the ADC. Her job
responsibilities include responding to non-medical inmate grievance appeals for the current and
former ADC Chief Deputy Directors and Assistant-Directors. (ECF No. 88-1).
The ADC has an inmate grievance policy. At all times relevant to this lawsuit,

Administrative Directive 19-34 was the governing ADC Inmate Grievance Policy. (ECF No. 88-
1). The effective date of Administrative Directive 19-34 was 12/2/2019. (ECF No. 88-2 at 1).
Administrative Directive 19-34 states: “A summary of the Inmate Grievance Procedure
will be included in the Inmate Handbook. However, the Inmate Grievance procedure is governed
by this Administrative Directive and not any summary in the Inmate Handbook. All inmates shall
be provided access to this Administrative Directive.” (ECF No. 88-2 at 4).
The ADC’s grievance policy informs inmates that they must specifically name each
individual involved and fully exhaust their grievance prior to filing a lawsuit. (ECF No. 88-1, 88-
2).
The ADC’s grievance policy also informs the inmates that only one problem/issue should
be stated in their grievance, not multiple problems/issues. The inmates are instructed that they
must use a separate form for each issue. (ECF No. 88-1, 88-2).
The ADC’s grievance policy warns the inmates that only one issue will be addressed in

their grievance and that additional problems/issues contained in the grievance will not be
considered as exhausted. (ECF No. 88-1, 88-2).
The ADC inmate grievance policy further instructs inmates that when submitting a

1 The Arkansas Department of Correction was reorganized in 2019 to become the Arkansas Department
of Corrections. The new Department is a Cabinet level department within the Arkansas State
Government which includes the Division of Correction and the Division of Community Correction.
grievance; the grievant must “write a brief statement that is 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.” (ECF No. 88-1, 88-2).
Pursuant to the inmate grievance policy, in order to timely file a grievance, an inmate is
required to fully comply with all other provisions of the ADC inmate grievance policy in order to
fully exhaust administrative remedies as required by the Prison Litigation Reform Act. (ECF No.

88-1, 88-2).
The ADC’s inmate grievance procedure is a three-step process. (ECF No. 88-1, 88-2).
Step One, the Informal Resolution Procedure, requires inmates to first seek an informal
resolution by submitting a unit level grievance form within fifteen days of the alleged incident to
the designated problem solver. Depending on the inmate’s particular issue, the designated
problem-solver will either meet with the inmate within three working days to resolve the issue;
meet with the inmate immediately if the issue is an emergency; refer the issue to the Health
Services Administrator; or refer the issue to the Mental Health Supervisor. (ECF No. 88-1, 88-2).
The ADC inmate grievance policy instructs inmates that if the designated problem-solver
fails to contact the inmate and attempt resolution of the complaint or fails to return Step One within
the three designated working days, the inmate may proceed to Step Two. When this occurs, the
Step Two, formal grievance, must be filed no later than six working days from the submission of
the Unit Level Grievance Form, pursuant to Step One. (ECF No. 88-1, 88-2).
Due to excessive submissions causing a delay in processing inmate grievances, inmates

are limited to five Step One, Informal Resolutions per seven-day period. Only the first five Step
One, Informal Resolutions will require a response. Each seven-day period begins on Saturday and
ends on Friday. (ECF No. 88-1, 88-2).
After attempting to resolve their issue through Step One, the inmate may proceed to Step
Two, the Formal Grievance Procedure, by filing a formal grievance on the same unit level
grievance form used during Step One. (ECF No. 88-1, 88-2).
Inmates are allowed to submit three Step Two, formal grievances during a seven-day
period. A new seven day period begins each Saturday and ends on the following Friday. Only the
first three formal grievances submitted by an inmate require an investigation and response. This
limit includes nonmedical, medical, and mental health grievances. (ECF No. 88-1, 88-2).

Formal grievances that are filed after an inmate reaches the limit are logged and reviewed
to determine if an emergency exists. If no emergency exists, the grievance will be logged out on
the same day it was received and it shall be written on the Unit Level Grievance Form “No action
necessary-exceeds weekly limit,” dated, and signed. The original grievance is then placed in the
grievance file and no other response will be given to the inmate. (ECF No. 88-1, 88-2).
The inmate will receive a response to the formal grievance from the warden or warden’s
designee within twenty working days. (ECF No. 88-1, 88-2).
If the inmate is not satisfied with the warden’s response, the inmate may file an appeal
within five days to the Chief Deputy/Deputy/Assistant Director. (ECF No. 88-1, 88-2).
If the warden fails to respond to the Step Two within twenty days, the inmate may proceed
with an appeal. (ECF No. 88-1, 88-2).
An inmate’s appeal must be written in the space provided on the original Warden/Center
Supervisor’s Form, the Health Services Response to the Unit Level Grievance Form for medical
or mental health grievances entitled Inmate’s Appeal or the Acknowledgement or Rejection of

Unit Level Grievance Form. (ECF No. 88-1, 88-2).
The ADC inmate grievance policy informs the inmates that only what is written in the
space provided for appeal will be considered part of the grievance appeal and that additional sheets
should not be attached and will be returned to the inmate upon receipt of the appeal or as soon as
practical. (ECF No. 88-1, 88-2).
The inmate must include the original Unit Level Grievance Form and either the Warden’s
Decision Form or the Acknowledgement or Rejection of the Unit Level Grievance with his appeal.
If an inmate fails to submit either of the two pages with his appeal, the appeal may be returned to
the inmate as rejected. (ECF No. 88-1, 88-2).
The entire grievance procedure should be complete within seventy-six working days unless

an extension has been executed or unforeseen circumstances have occurred. (ECF No. 88-1, 88-
2).
The ADC grievance policy instructs inmates that if, at any level of the inmate grievance
process, the inmate fails to receive a response to his grievance within the allotted timeframe the
inmate may proceed to the next level of the process. (ECF No. 88-1, 88-2).
The ADC grievance policy explicitly informs inmates that they must exhaust their
administrative remedies as to all defendants at all levels of the grievance process before filing a
Section 1983 lawsuit or their lawsuit or claims may be dismissed immediately pursuant to the
exhaustion requirements of the Prison Litigation Reform Act. (ECF No. 88-1, 88-2).
To fully exhaust administrative remedies, inmates are required to timely file an informal
resolution and formal grievance at the unit level; a grievance appeal should be filed to the Assistant
and/or Deputy Director’s level as detailed in the ADC inmate grievance policy. (ECF No. 88-1,
88-2).
Ms. Brown reviewed Plaintiff’s grievance appeal file and grievance history. During her

review, she searched for any exhausted grievances filed from January 2020, through the date of
her affidavit, pertaining to Plaintiff’s claims in the present lawsuit. (ECF No. 88-1).
Upon review, Ms. Brown found that Walton filed the following grievances: VSM20-
00653, SNN20-00033, SNN20-00038, SN20-00039, SNN20-00062, VU-20-00304, and SNN20-
00063. (ECF No. 88-1).
None of the grievances mention Ebony Harris, Dillion Jennings, James Gibson, Dale Reed,
or Tomisha Ivory. (ECF No. 88-1).
Plaintiff named Defendant Dillon Voss in Grievance No. SNN20-00033 on January 31,
2020, regarding a complaint of excessive force. Only Voss was named in the grievance. On appeal
of the denial of the grievance, Plaintiff failed to include Attachment 1, the Unit Level Grievance

Form. So, the grievance appeal was rejected. (ECF No. 88-1, 88-3).
In Grievance No. SNN20-00038, Plaintiff claimed excessive force against Voss and
Defendant Shakoyia Lewis. Plaintiff failed to send Attachment 1, the Unit Level Grievance Form,
with his appeal and, thus, it was rejected. (ECF No. 88-1, 88-3).
In Grievance No. SNN20-00063, Inmate Walton attempted to claim force again against
Voss and Shakoyia Lewis. The grievance was deemed untimely submitted and was rejected for
that reason. (ECF No. 88-1).
Plaintiff claimed a denial of medical treatment in Grievance No. SNN20-00039. However,
he failed to name any staff that allegedly denied him medical treatment. Plaintiff also failed to
include Attachment 1, the Unit Level Grievance Form. Therefore, Brown concludes Plaintiff did
not properly and fully exhaust this claim against any staff in that grievance. (ECF No. 88-1, 88-
3).
In Grievance No. SNN20-00062, Plaintiff claimed excessive force again against Voss, also
relating to an altercation Plaintiff had with staff on or about January 27, 2020. The Grievance was

submitted on February 10, 2020, and was rejected as being untimely and because it was a non-
grievable disciplinary matter. Plaintiff only named Voss in the grievance, and did not “specifically
name” any additional staff. Furthermore, Plaintiff failed to exhaust the disciplinary matter because
he waived his appearance and, consequently, his appeal was rejected. (ECF No. 88-4, 88-5, 88-3)
Brown concludes that Plaintiff failed to properly and fully exhaust his grievance and his
disciplinary conviction. (ECF No. 88-1).
Plaintiff submitted Grievance No. VSM20-00653 regarding his classification at Varner
Supermax against Floria Washington. However, Plaintiff never claimed a denial of medical care
against Washington in that grievance, which is the only claim he makes against her in the Third
Amended Complaint. (ECF No. 58). Brown concludes Plaintiff failed to fully and properly

exhaust any grievance against Washington relating to a claim made in this lawsuit. (ECF No. 88-
1).
Plaintiff submitted Grievance No. VU-20-00304, wherein he complained about his waiver
of appearance at his disciplinary hearing for the incident that occurred on January 27, 2020.
Plaintiff names Defendant Franklin in the grievance. However, the grievance was submitted in
May and was denied as untimely and that finding was upheld on appeal. Therefore, Plaintiff failed
to fully and properly exhaust any grievance against Franklin relating to any claim made in this
lawsuit. (ECF No. 88-1, 88-3).
In Plaintiff’s response to Defendants’ Motion, he argues that he was given out of date rules
and did not have access to the current Inmate Grievance Procedure set forth in Administrative
Directive 19-34. (ECF No. 95).
On March 2, 2021, the Court entered a text only Order directing Defendants to supplement
their Motion with an affidavit from an individual with knowledge concerning how the Inmate
Grievance Procedure, AD 19-34, was communicated to inmates entering ADC custody in January

2020. (ECF No. 110).
Defendants filed the Declaration of Gladys Evans on March 4, 2021. (ECF No. 111). The
Declaration states that Evans is the Varner Supermax Unit Law Library Supervisor. Evans’ duties
include supervision library clerks, handling copies, typing and law library requests, managing
orientation for all new commitments and sponsor of Inmate Council. Id. Evans further states that
the Plaintiff, Marcus Walton, is an inmate currently housed at the Varner Supermax. Id.
Evans states, “[w]hen Varner Unit receives new commitments, those inmates are given an
orientation within 24 hours of arrival. Inmates are also provided an Inmate Handbook/Orientation
Package, which outlines the Unit’s procedures, rules and regulation. This packet of information
includes the grievance policy form [from] the Unit Law Library.” (ECF No. 111).

Evans further states, “[t]his process does not include inmates who are transferred from
other units who are not new commitments. Although they do not receive a new orientation, they
can still access the grievance policy via the Law Library.” Id. (ECF No. 111).
In Plaintiff’s response to the Declaration of Gladys Evans, he states “plaintiff was not a
new commit I was transferred and receive no law library assistance for 5 months . . . So there was
no way plaintiff could access full grievance procedure.” (ECF No. 113).
Plaintiff further states: “I was denied my right to access law library until September, 2020.”
(ECF No. 114). Plaintiff states: “I receive no policys or procedure in discovery efforts I had to
basically order those in other inmates names to receive them. The first time I knew the 19-34
grievance procedure existed was when their attorney sent it in to the Courts.” (ECF No. 114).
Plaintiff attaches an exhibit to his pleading noting that he was transferred to Varner from Ouachita
Correction on “2-3-3030.” (ECF No. 114, Ex. A).
II. LEGAL STANDARD
Summary judgment is appropriate if, after viewing the facts and all reasonable inferences

in the light most favorable to the nonmoving party, the record “shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). “Once
a party moving for summary judgment has made a sufficient showing, the burden rests with the
non-moving party to set forth specific facts, by affidavit or other evidence, showing that a genuine
issue of material fact exists.” Nat’l Bank of Comm. v. Dow Chem. Co., 165 F.3d 602, 607 (8th Cir.
1999).
The non-moving party “must do more than simply show that there is some metaphysical
doubt as to the material facts.” Matsushita, 475 U.S. at 586. “They must show there is sufficient

evidence to support a jury verdict in their favor.” Nat’l Bank, 165 F.3d at 607 (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). “A case founded on speculation or suspicion is
insufficient to survive a motion for summary judgment.” Id. (citing Metge v. Baehler, 762 F.2d
621, 625 (8th Cir. 1985)). “When opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not
adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott
v. Harris, 550 U.S. 372, 380 (2007).
III. DISCUSSION
The Prison Litigation Reform Act (“PLRA”) in 42 U.S.C. § 1997e(a) provides: “[n]o 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.” Exhaustion is mandatory. Porter v.
Nussle, 534 U.S. 516, 524-25 (2002). In Jones v. Bock, 549 U.S. 199 (2007), the Supreme Court
concluded “to properly exhaust administrative remedies prisoners must complete the
administrative review process in accordance with the applicable procedural rules.” Id. at 218
(internal quotation marks and citation omitted). The Court stated that the “level of detail necessary
in a grievance to comply with the grievance procedures will vary from system to system and claim
to claim, but it is the prison’s requirements, and not the PLRA, that define the boundaries of proper
exhaustion.” Id. A prisoner’s remedies are exhausted “when [the] inmate pursues the prison
grievance process to its final stage and receives an adverse decision on the merits.” Hammett v.
Cofield, 681 F.3d 945, 947 (8th Cir. 2012).
The Eighth Circuit has recognized two exceptions to the PLRA exhaustion requirement:
(1) when officials have prevented prisoners from utilizing the grievance procedures; or (2) when
the officials themselves fail to comply with the grievance procedures. See Gibson v. Weber, 431

F.3d 339, 341 (8th Cir. 2005) (citing Miller v. Norris, 247 F.3d 736 (8th Cir. 2001) (explaining a
prisoner is only required to exhaust those administrative remedies that are available and any
remedies that prison officials prevent a prisoner from utilizing are not considered available)).
Defendants argue that Plaintiff’s claims have not been fully exhausted. The specifics of
Defendants arguments vary with respect to each claim and each Defendant. With respect to some
claims, Defendants argue that Plaintiff did not properly name certain Defendants in a grievance;
with respect to other claims, Defendants argue that Plaintiff’s grievances were untimely or did not
include the correct forms. It is undisputed that ADC Administrative Directive 19-34 was the
governing ADC Inmate Grievance Procedure at the time. (ECF No. 88-1). The effective date of

Administrative Directive 19-34 was 12/2/2019. Id.
Plaintiff’s claims concern occurrences which happened on January 26, 2020, and February
6, 2020, soon after Plaintiff entered ADC custody. (ECF No. 58). At that time, Plaintiff was
confined at Ouachita River Unit (“ORU”) of the ADC. Id. In response to Defendants’ arguments
that Plaintiff failed to exhaust his administrative remedies, Plaintiff contends that he did not have
access to Administrative Directive 19-34 at the relevant time. (ECF No. 95, 114). Plaintiff was
transferred from the ORU to Varner on February 3, 2020. (ECF No. 114). Again, Plaintiff claims
he did not have access to Administrative Directive 19-34 when transferred to Varner. Id. Although
Plaintiff states that he was given a Varner handbook at some point, Plaintiff contends the handbook
was outdated and did not contain the full grievance policy.2 (ECF No. 95 at 2). Plaintiff further
claims that he did not have access to the law library until September of 2020. (ECF No 114).
Defendants were directed by the Court to supplement their summary judgment pleadings
“with an affidavit from an individual with knowledge concerning how the Inmate Grievance
Procedure, AD 19-34, was communicated to inmates entering ADC custody in January 2020.”

(ECF No. 110). Defendants filed a Notice entitled “Declaration of Gladys Evans.” (ECF No.
111). The Declaration speaks to information given when “Varner unit receives new
commitments.” (ECF No. 111). The Declaration further states “[t]his process does not include
inmates who are transferred from other units who are not new commitments.” Id. Stating further,
“[a]lthough they do not receive a new orientation, they can still access the grievance procedure via
the Law Library.” Id. Although the Declaration does state that Gladys Evans is aware that Plaintiff
“is an inmate currently housed at Varner Supermax,” the Declaration does not lay out how, when
or if Plaintiff actually received knowledge of Administrative Directive 19-34 or the full Inmate
Grievance Procedure. (ECF No. 111).

As set forth above, exhaustion is mandatory. Porter v. Nussle, 534 U.S. 516, 524-25
(2002). However, the PLRA only requires exhaustion of “such administrative remedies as are
available.” 42 U.S.C. § 1997e(a).
The availability of a remedy, according to the Supreme Court, is about more than
just whether an administrative procedure is ‘on the books.’ Ross v. Blake, 136 S.Ct.
1850 (2016). An administrative remedy is ‘not capable of use,’ and therefore
unavailable, for example, ‘when prison administrators thwart inmates from taking
advantage of a grievance procedure through machination, misrepresentation, or
intimidation.’ Id. at 1859-60.

Townsend v. Murphy, 898 F.3d 780, 783 (8th Cir. 2018).

2 According to Administrative Directive 19-34, although the Inmate Grievance Procedure is summarized in
the Inmate Handbook, the “Administrative Directive and not any summary in the Inmate Handbook”
controls. (ECF No. 88-2 at 4).
Failure to exhaust is an affirmative defense that must be proven by the Defendants. Porter
v. Sturm, 781 F3d 448, 451 (8th Cir. 2015)(citing Jones, 549 U.S. at 211-12). Further, the
Defendants’ burden includes showing that the administrative remedies were actually available to
the Plaintiff. Foulk v. Charrier, 262 F.3d 687, 697-98 (8th Cir. 2001).
Despite being directed by the Court to “supplement their Motion for Summary Judgment

with an affidavit from an individual with knowledge concerning how the Inmate Grievance
Procedure, AD 19-34, was communicated to inmates entering ADC custody in January 2020,”
Defendants failed to show how the Plaintiff was informed of the ADC inmate grievance procedure.
Accordingly, on the record before the Court, there remain genuine issues of material fact as to
whether Plaintiff had access to or knowledge of the requirements of the ADC inmate grievance
procedure in place when was committed to its custody. These genuine issues of material fact
prevent summary judgment based on exhaustion.
IV. CONCLUSION
For the reasons stated above, I recommend that Defendants’ Motion for Summary

Judgment (ECF No. 88) be denied.
The parties have fourteen days from receipt of the Report and Recommendation in
which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely
objections may result in waiver of the right to appeal questions of fact. The parties are
reminded that objections must be both timely and specific to trigger de novo review by the
district court.
DATED this 19th day of April 2021.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10632158. Public record. Not legal advice.