# Harris v. Payne

> District Court, W.D. Arkansas · December 21, 2022

URL: https://www.frixlaw.com/law-library/cases/10632562

## Case

- **Court:** District Court, W.D. Arkansas
- **Decided:** December 21, 2022
- **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

JAY LLOYD HARRIS PLAINTIFF

v. Civil No. 6:21-cv-06143

DIRECTOR DEXTER PAYNE,
Arkansas Division of Correction (ADC);
CHIEF DEPUTY DIRECTOR MARSHALL D. REED, ADC DEFENDANTS

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, Jay L. Harris (“Harris”), filed this civil rights action pursuant to 42 U.S.C. § 1983.
He proceeds pro se and in forma pauperis. Pursuant to the provisions of 28 U.S.C. §§ 636(b)(1)
and (3), 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. The case is before the
Court on the Motion for Summary Judgment (ECF No. 36) on the issue of exhaustion filed by
Arkansas Division of Correction (“ADC”) Director Dexter Payne and ADC Deputy Director
Marshall D. Reed. Harris has responded (ECF No. 42) to the Motion. The Motion is ready for
decision.
I. FACTUAL BACKGROUND
Harris is currently incarcerated in the Pine Bluff Unit of the ADC. When he filed his
complaint, he was incarcerated in the Ouachita River Correctional Unit of the ADC. (ECF No. 1
at 2). He is serving a 40-year sentence. Id. at 3.
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This lawsuit concerns the “lights out” policy of the ADC. Specifically, the ADC has a
“lights out” policy which on weekdays is from 10:30 p.m. to 4:30 a.m., a mere six hours. (ECF
No. 1 at 4). During this time, Harris says his sleep is interrupted for disciplinary court, legal mail
delivery, morning pill call, and breakfast. Id. With respect to the morning pill call, Harris asserts

that inmates are faced with a choice between medication and sleep. Id. at 8. Similarly, at
breakfast call, he indicates he is faced with a choice between nutrition and sleep. Id. at 10.
Harris alleges that uninterrupted sleep is required to maintain proper physical and mental
health and recovery. (ECF No. 1 at 5). Harris maintains that limiting the amount of
uninterrupted sleep inmates get constitutes physical and mental torture via sleep deprivation and
violates the Eighth Amendment. Id. at 4-5. He notes that the night shift staff works from 6:30
p.m. until 6:30 a.m. which gives them four hours before lights out and two hours after lights out
to accomplish the tasks at issue. Id. at 5.
Defendants previously filed a Motion to Dismiss. (ECF No. 9). The Motion was granted
in part and denied in part. (ECF No. 34). Specifically, all claims for monetary damages were

dismissed as were the individual capacity claims against Defendants. Id. The Motion was
denied with respect to Harris’ claims for prospective injunctive relief. Id. Defendants have now
moved for summary judgment arguing Harris failed to properly exhaust his administrative
remedies before filing this lawsuit.
II. APPLICABLE STANDARD
Summary judgment is appropriate if, after viewing the facts and all reasonable inferences
in the light most favorable to the non-moving party, the record “shows that there is no genuine

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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). A fact is “material” if it may “affect the outcome of the suit.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
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”) mandates exhaustion of available
administrative remedies before an inmate files suit. Specifically, Section 1997e(a) of the PLRA
provides: “[n]o action shall be brought with respect to prison conditions under section 1983 of this

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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.

A. ADC Grievance Policy
Administrative Directive 19-34 (“AD 19-34”) provides inmates in ADC custody an
administrative process for the resolution of complaints, problems, and other issues. (ECF No. 36-
1 at 1). The policy is designed “to solve problem[s] at the lowest level, as promptly as feasible,
and in a manner that is fair, reasonable, and consistent with” the ADC’s mission. Id. The policy
requires inmates to “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.” Id. at p. 6. Inmates may only write in the
space provided on the form. Id. No additional pages are permitted. Id. The policy stresses
that an inmate must “specifically name each individual involved in order that a proper investigation

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and response may be completed.” Id. at 5. Only one issue may be raised in a grievance. Id. If
other issues are raised, they “will not be addressed and will not be considered as exhausted.” Id.
The ADC’s inmate grievance procedure consists of three steps. Step-One is known as the
Informal Resolution Procedure, which requires an inmate to first seek an informal resolution by

submitting a Unit Level Grievance Form within 15 days of the alleged incident to the designated
problem solver. (ECF No. 36-1 at 6). If the inmate is dissatisfied with the Problem Solver’s
resolution, he may proceed to Step-Two. Id. at 8. And if the designated Problem Solver has not
contacted the inmate within three working days, the inmate may also proceed to Step-Two. Id.
Step-Two is known as the Formal Grievance Procedure, and the inmate files a formal
grievance on the same Unit Level Grievance Form used during Step-One. (ECF No. 36-1 at
9). Upon receipt, the Grievance Officer will complete the form by assigning a number to the
grievance and logging the date the grievance was received, the inmate’s name, ADC number, type
of grievance, and the text of the inmate’s complaint into the Electronic Offender Management
Systems (“eOMIS”). Id. at 9. An inmate will receive a response to his formal grievance from the

warden or the warden’s designee within 20 working days. Id. at 11. The response shall state “the
reason for the decision, in clear, well reasoned terms.” Id.
If the inmate is not satisfied with the warden’s response, or the inmate has not received a
response “within the allotted time frame as stated on the Acknowledgment Form or the Extension
Form,” the inmate may proceed to Step-Three and file an appeal. (ECF No. 36-1 at 11). An
appeal is to be submitted within five working days to the Chief Deputy/Deputy/Assistant Director.
Id. at 11-12. An inmate’s appeal must be written in the space provided on the original

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Warden/Center Supervisor’s form, the Health Services Response to the Unit Level Grievance
Form, or the Acknowledgement or Rejection of the Unit Level Grievance Form. Id. at 12. To
complete the appeal, the inmate must state a reason for disagreeing with the warden, Health
Services Administrator, or Mental Health Supervisor’s decision and date, sign, and write his ADC

number on the attachment being appealed. Id. The inmate may not “list additional issues,
requests, or names which were not a part of the original grievance.” Id.
The ADC’s entire grievance process is to be completed within 76 working days “unless a
valid extension has been executed, or it can be documented that unforeseen circumstances have
occurred.” (ECF No. 36-1 at 14). The policy explicitly states that inmates are required to exhaust
their administrative remedies as to all defendants at all levels of the grievance process before filing
a lawsuit or their lawsuit may be dismissed summarily pursuant to the exhaustion requirement of
the Prison Litigation Reform Act. Id. at p. 19.1 To fully exhaust administrative remedies under
AD 19-34, an inmate is required to timely file an informal resolution, a formal grievance, and a
grievance appeal and receive a decision addressing the allegations contained in the grievance at

each level.
B. Exhaustion
Defendants maintain that the undisputed facts demonstrate Harris did not exhaust his
administrative remedies as to his claims against them and that they are entitled to summary
judgment in their favor. (ECF No. 36 at 1).

1 The Court notes that exhaustion is an affirmative defense that can be waived. Charron v. Allen, 37 F.4th 483,489
(8th Cir. 2022).
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According to the affidavit of Terri Brown (“Brown”), the inmate grievance supervisor for
the ADC, Harris filed a single grievance relating to the claim in this lawsuit: Grievance Number
OR-21-00532. (ECF No. 36-2 at 6). Harris filed the unit level grievance on July 6, 2021. Id.
His grievance stated as follows: “Breakfast meal is served during our limited lights out period.

This leads to a choice of nutrition & calories vs. needed rest. Thus putting our physical or mental
health at risk.” (ECF No. 1 at 10-12). Harris did not name the Defendants in the grievance.
(ECF No. 36-2 at 6).
Harris proceeded to Step-Two and received a response from the warden on August 26,
2021. (ECF No. 36-2 at 7). The response found the grievance without merit because Harris
failed to state a specific date, time, or staff to be investigated. Id. Harris proceeded to Step-
Three by appealing the warden’s decision. Id. Harris wrote: “Every day, every shift (AM).
Torture, no matter your policy is illegal. Sleep deprivation is recognized as torture.” (ECF No.
1 at 11). Defendant Reed responded to the appeal on October 11, 2021, and informed Harris that
he agreed with the warden’s decision that Harris had failed to state a specific time, date, and staff

to be investigated. (ECF No. 36-2 at 7). The appeal was denied. Id. Brown opines that
“[a]lthough Harris completed all three steps of AD 19-34, he did not properly exhaust any claim
against Defendants Payne and Reed, as he did not name them in the sole grievance related to his
claims.” Id. Brown asserts that Harris “is precluded from pursuing legal action against them
under the PLRA.” Id. at 8.
Defendants argue the unit level grievance was facially deficient under the terms of AD 19-
34. (ECF No. 37 at 8). Defendants argue the “vague complaints” in the grievance did not include

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any information that would put the ADC on notice to investigate either of the Defendants. Id. at
8-9. Further, they argue Harris failed to specify what policy he claims is illegal. Id. at 9.
Finally, they argue that the claims on appeal differed from those presented in the original grievance
which is not allowed under AD 19-34. Id.

In response, Harris argues he was challenging the policy that was applied day in and day
out at ADC facilities.2 (ECF No. 42 at 1). He asserts that the technical requirements of AD 19-
34 should not apply when an inmate is challenging an ADC policy. Id. Harris points out he
would have to name all personnel involved in applying the policy seven days a week, month after
month. Id. He notes that inmates are only allowed three grievances a week which go beyond
Step-One.3 Further, Harris asserts that Director Payne signed the administrative directives and
regulations in effect at ADC facilities and his appeal was decided by Deputy Director Reed. Id.
The PLRA, Section 1997e(a), contains no exceptions to the exhaustion of administrative
remedies requirement and forecloses judicial discretion. Ross v. Blake, 578 U.S. 632, 638-39
(2016). It does, however, contain “one significant qualifier: the remedies must indeed be

‘available’ to the prisoner.” Id. at 639. “But aside from that exception, the PLRA’s text suggests
no limits on an inmate’s obligation to exhaust—irrespective of any ‘special circumstances.’” Id.

2 Harris alleges Brown’s affidavit does not address other unit level grievances he filed that are attached to his
Complaint (ECF No. 1 at 8-9). However, Brown’s affidavit only indicates there was a single grievance that went
through all three steps of AD 19-34. Harris has offered no support for the fact that he proceeded through all three
levels with respect to these other grievances. There is no suggestion that Brown’s affidavit is in error.
3 Inmates are limited to five step-one informal grievances per each seven-day period. (ECF No. ECF No. 36-1 at 15).
Further, inmates are limited to three Step-Two formal grievances per each seven-day period. Id.
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To be “available” means capable of being made use of. “[A]n inmate is required to
exhaust those, but only those, grievance procedures that are ‘capable of use’ to obtain ‘some relief
for the action complained of.’” Ross, 578 U.S. at 642 (quoting Booth v. Churner, 532 U.S. 731,
738 (2001)). In Ross, the Supreme Court noted “three kinds of circumstances in which an

administrative remedy, although officially on the books, is not capable of use to obtain relief.”
578 U.S. at 643. First, “an administrative procedure is unavailable when (despite what regulations
or guidance materials may promise) it operates as a simple dead end—with officers unable or
consistently unwilling to provide any relief to aggrieved inmates. . .. “When the facts on the
ground demonstrate that no such potential exists, the inmate has no obligation to exhaust the
remedy.” Id. Second, when “an administrative scheme is so opaque that it becomes, practically
speaking, incapable of use. In this situation, some mechanism exists to provide relief, but no
ordinary prisoner can discern or navigate it.” Id. at 643-44. Third, “when prison administrators
thwart inmates from taking advantage of a grievance process through machination,
misrepresentation, or intimidation . . . such interference with an inmate’s pursuit of relief renders

the administrative process unavailable.” Id. at 644. An inmate’s subjective belief about the
futility of the process, or his misunderstanding of the process, is irrelevant to determining whether
a grievance procedure is available. Chelette v. Harris, 229 F.3d 684, 688 (8th Cir. 2000).
Here, Harris argues that he could not comply with the technical requirements of the
grievance policy because he was challenging an ADC policy. The Court construes this as an
argument that the procedure is unavailable when one is challenging an ongoing ADC policy.
Specifically, Harris essentially argues that it makes no sense to “include the date, place, personnel

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involved or witnesses” when challenging an ongoing ADC policy. Further, he notes he would
have to submit a daily grievance to challenge the application on an ongoing policy which in and
of itself is not possible under the grievances policy because of its limitations on the number of
open grievances.

The Court is not free to invoke a judge-made exception to the exhaustion requirement.
While the Court is sympathetic to Harris’ arguments about AD 19-34 not providing an “exact fit”
when the challenge is to an ongoing policy and not a discrete incident, the Court believes Harris
could easily have made his grievance more specific by explicitly stating he was challenging the
overall policy, as he did on appeal. More importantly, he could have easily named the Director
and Deputy Director in the grievance. Had Harris done so and received the same or similar
response, the question of whether he had an available remedy would be a different one. However,
administrative exhaustion requires “using all the steps that the agency holds out, and doing so
properly (so that the agency addresses the issues on the merits).” Woodford v. Ngo, 548 U.S. 81,
90–91 (2006). On the record before it, the Court concludes Harris failed to exhaust his

administrative remedies.
V. CONCLUSION
For the reasons and upon the authorities discussed above, it is recommended that the
Motion for Summary Judgment (ECF No. 36) be GRANTED, and that this case be DISMISSED
WITHOUT PREJUDICE.
The parties have fourteen (14) 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

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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 21st day of December 2022.

/s/ Mark E. Ford
HON. MARK E. FORD
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10632562. Public record. Not legal advice.