Harris v. Ball

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

HOT SPRINGS DIVISION

JAY LLOYD HARRIS PLAINTIFF

v. Civil No. 6:22-CV-06011-RTD-BAB

RICHARD TODD BALL and JOHN DOES 1- DEFENDANTS

2001

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

This is a civil rights action filed pursuant to 42 U.S.C. § 1983. Pursuant to the provisions

of 28 U.S.C. § 636(b)(1) and (3), the Honorable Robert T. Dawson, Senior United States District

Judge, referred this case to the undersigned for the purpose of making a Report and

Recommendation. Currently before the Court is a Motion for Summary Judgment by Defendant

Ball. (ECF No. 23).

I. BACKGROUND

Plaintiff filed his Complaint on January 20, 2021. (ECF No. 1). Plaintiff alleges that

from the beginning of the COVID-19 pandemic to the time he filed this Complaint, Defendant

Ball either “refuses to train and enforce mask wearing among his security staff or is deliberately

indifferent to the health and safety of inmates and staff at this facility.” (Id. at 4). The facility in

question is the Arkansas Division of Correction (“ADC”) Ouachita River Unit. Plaintiff further

alleges that Defendant “Ball and unknown staff keep refusing to respond to grievances raising

the subject.”2 (Id.). Plaintiff proceeds against Defendant Ball in both his official and personal

1 The John Doe Defendants were not identified, and the deadline to do so has long passed. (ECF No. 11).

2 To the extent this could be interpreted as a complaint against the ADC grievance process itself, Plaintiff fails to

state a cognizable claim. The Eighth Circuit has made it clear prisoners do not have a constitutional right to a prison

grievance procedure. Lomholt v. Holder, 287 F.3d 683, 684 (8th Cir. 2002) (no claim when “various defendants

capacity. (Id.). Plaintiff seeks compensatory and punitive damages, including “appropriate

funds to obtain actual PPE for inmates,” inmate testing for long-haul COVID issues, and the

donation of Defendant Ball’s paycheck to a free clinic. (Id. at 7).

Plaintiff attached copies of two grievances to his Complaint, with beginning dates of

December 6, 2021, and December 21, 2021. (ECF No. 1 at 8-9). The text of the grievance form

with a Step One Date of December 6, 2021, is illegible. (ECF No. 1 at 8). The text of the

grievance form with a Step One date of December 21, 2021, is only partially legible. There

appears to be a reference to hand sanitizing stations. The last sentence states: “However Deputy

Warden of Security Richard T. Ball has failed to train or enforce proper mask wearing policies

among the majority of the security officers here at ORCU.” (ECF No. 1 at 9). Neither grievance

was dated or assigned a grievance number in the “For Office Use Only” box on the form. In

order to progress from an informal Step One grievance to a formal Step Two grievance, the ADC

grievance policy requires the inmate to submit his Step Two grievance form to the grievance

officer, who then assigns a grievance number and logs the date the grievance was received in that

box. (ECF No. 19-2 at 9). The grievances attached to Plaintiff’s Complaint list a Step Two date,

but do not contain any information in the “For Office Use Only” box. Thus, there is no summary

judgment evidence that the copies Plaintiff attached to his Complaint were submitted to the

grievance officer to begin the Step Two formal grievance process.

Defendant Ball filed his Motion for Summary Judgment on August 22, 2022. (ECF No.

19). He argues that Plaintiff failed to exhaust his administrative remedies against him prior to

filing this lawsuit. (Id. at 2). He also argues that Plaintiff failed to state an Eighth Amendment

claim, qualified immunity bars Plaintiff’s personal capacity claims, and sovereign immunity bars

denied his grievances or otherwise refused to help him”); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir.1993) (no

claim when defendants failed to timely and properly respond to a grievance).

Plaintiff’s official capacity claims. (Id.). Defendant Ball filed an Addendum containing

Plaintiff’s deposition transcript on August 25, 2022. (ECF No. 22).

On August 26, 2022, the Court entered an Order directing Plaintiff to file his Summary

Judgment Response by September 16, 2022. (ECF No. 23). Plaintiff filed a Notice of Address

Change, Motion for Counsel, his Summary Judgment Response, and a one-page, three-paragraph

Statement of Facts with attached grievance copies on September 12, 2022. (ECF Nos. 24-27).

The Motion for Counsel was denied on September 13, 2022. (ECF No. 28).

In his Summary Judgment Response, Plaintiff does not dispute that he failed to exhaust

any ADC grievances against Defendant Ball for COVID-19 mask-wearing policies prior to filing

this case. Instead, he argues that “ADC policy fails to take in account active staff destruction

and interference with the process.” (ECF No. 26 at 2). He cites two Fifth Circuit cases for the

premise that when time limits for responses expire without a response or when officials interfere,

then grievances are exhausted. (Id.). He further states: “I no longer risk my last copy to prison

officials.” (Id.).

In his Statement of Disputed Facts, Plaintiff argues that “having filed all but one copy

with a known adversarial grievance officer and no way to make copies, I opted to follow

established caselaw.”3 (ECF No. 27 at 1). Plaintiff attached copies of grievance forms with

starting dates of December 21, 2021, January 19, 2022, and January 23, 2022. (Id. at 2-6). None

of these grievances are relevant to the claims in this case. The December grievance does not

name Defendant Ball or make any mention of COVID-19 masking policy, and was not

exhausted. (Id. at 2). The January 19th grievance does not name Defendant Ball, does not

reference COVID-19 masking policies, and was not exhausted until long after this case was filed.

(Id. at 5-6). The January 23rd grievance was started after this case was filed. (Id. at 5). The two

3 Plaintiff cites to the two Fifth Circuit cases again as the caselaw in question.

January grievances complain of issues regarding COVID-19 testing; they were given grievance

numbers, addressed by the ADC, and administratively exhausted. (ECF No. 27 at 4, 6).

II. LEGAL STANDARD

Summary judgment is appropriate if, after viewing the facts and all reasonable inferences

in the light most favorable to the non-moving party, Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986), 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).

“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.” National Bank of Commerce v. Dow Chemical 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.” National 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. ANALYSIS

The Prison Litigation Reform Act (“PLRA”) mandates exhaustion of available

administrative remedies before an inmate files suit. Section 1997e(a) of the PLRA 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.” 42 U.S. C. § 1997e(a).

In Jones v. Bock, 549 U.S. 199 (2007), the Supreme Court concluded that “exhaustion [as

required by the PLRA] is not per se inadequate simply because an individual later sued was not

named in the grievances.” Id. at 219. “[T]o 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.

The Eighth Circuit Court of Appeals has recognized only 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) (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).

Plaintiff does not dispute that he failed to exhaust any ADC grievances concerning his

complaints about Defendant Ball and COVID-19 masking policies. Nor do any of his arguments

support a claim that he is eligible for an exception to the PLRA exhaustion requirement.

Plaintiff argues that ADC staff refused to respond to grievances concerning COVID-19

masking policies and enforcement, at times engaging in what he characterizes as “active staff

destruction or interference.” The ADC grievance policy in effect at the time, AD 19-34, permits

an inmate to continue though the grievance process to exhaustion in the event he receives an

incorrect or unsatisfactory staff response, or simply fails to receive a timely staff response. (ECF

No. 19-2 at 8, 11). Thus, assuming any ADC staff failed to respond to a grievance in a timely

manner at any point in the process, Plaintiff needed only to submit a timely appeal. There is no

evidence in the summary judgment record that Plaintiff took any steps to continue through the

ADC grievance procedure to exhaustion regarding his claims in this case. Instead of providing

evidence of such appeals, Plaintiff attached copies of grievances that either failed to progress

past Step One and/or had no relevance to the claims in this case. In his deposition, Plaintiff

testified that he was familiar with the ADC grievance process, and has filed other grievances and

lawsuits in the past. (ECF Nos. 20 at 11; 22 at 6, 9-11). There is also no evidence that Plaintiff

was denied access to the ADC grievance process, as the summary judgment record before the

Court indicates he filed 32 grievances between May 14, 2020, and February 18, 2022, many of

which Plaintiff appealed. (ECF No. 19-3 at 10-11). Plaintiff does not dispute his grievance

record.

Plaintiff also argues he followed Fifth Circuit caselaw when he decided not to pursue the

ADC appeal process. This argument fails for two reasons. First, Plaintiff filed this case in the

Eighth Circuit, not the Fifth Circuit. It is also well-established by the United States Supreme

Court that it is the prison’s requirements which control the boundaries of proper administrative

exhaustion. Jones, 549 U.S. at 218. Second, Plaintiff testified there was a period of time where

he simply decided not to complete the ADC grievance process, including the grievances attached

to his Complaint. (ECF No. 22 at 10-12). As discussed above, Plaintiff provided deposition

testimony that he is familiar with the ADC grievance process and has filed lawsuits in the past.

(ECF No. 22 at 6, 9-11). He further admitted in his deposition that there was a period of several

months where he filed request forms and grievances “without following up, being polite,

thinking oh, they’ll get to it.” (ECF No. 22 at 9). Finally, he testified that he did not receive a

response to the grievances attached to his Complaint, and decided to “let the 30 days pass.”

(ECF No. 22 at 11-12). Thus, Plaintiff testified that he chose not to exhaust the administrative

process for the only grievance in the summary judgment record where the text actually mentions

Defendant Ball and COVID-19 masking policy. This testimony is supported by the grievance

copy Plaintiff attached to his Complaint because there is no evidence that this grievance

progressed past Step One.

Thus, Plaintiff failed to comply with ADC grievance procedure to exhaust any grievances

relevant to this case. See Jones, 549 U.S. at 218 (“it is the prison’s requirements, and not the

PLRA, that define the boundaries of proper exhaustion”). There is no material fact in dispute

concerning PLRA exhaustion for Plaintiff’s claim, and Defendant Ball is entitled to summary

judgment as a matter of law.

IV. CONCLUSION

Accordingly, it is recommended that Defendant Ball’s Motion for Summary Judgment

(ECF No. 23) be GRANTED, and Plaintiff’s Complaint be DISMISSED WITH PREJUDICE.

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 December 2022.

/s/ Barry A. Bryant

HON. BARRY A. BRYANT

UNITED STATES MAGISTRATE JUDGE