# Devine v. Walker

> District Court, W.D. Arkansas · December 19, 2022

URL: https://www.frixlaw.com/law-library/cases/10632571

## Case

- **Court:** District Court, W.D. Arkansas
- **Decided:** December 19, 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
TEXARKANA DIVISION

ROBERT DEVINE PLAINTIFF

v. Civil No. 4:18-CV-04156-SOH-BAB

WARDEN JEFFIE WALKER, SERGEANT DEFENDANTS
ALLEN SANDERS, SHERIFF RUNION and
NURSE KING

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 Susan O. Hickey, Chief United States District
Judge, referred this case to the undersigned for the purpose of making a Report and
Recommendation.
Currently before the Court are Motions for Summary Judgment by Defendant King (ECF
No. 80), and Defendants Walker, Sanders and Runion (“Miller County Defendants”). (ECF No.
84).
I. BACKGROUND
Procedural Background
Plaintiff filed his Complaint on November 15, 2018, and an Amended Complaint on
December 3, 2018. (ECF Nos. 1, 6). At the time of filing for both Complaints, Plaintiff was
incarcerated in the Jester 3 Unit of the Texas Department of Criminal Justice. (ECF Nos. 1 at 3,
23; 6 at 2, 26). Plaintiff’s claims center on his incarceration in the Miller County Detention Center
(“MCDC”) between January 9, 2017, and his release to the Texas Department of Criminal Justice
on May 5, 2017. (ECF No. 6).
For his first claim, Plaintiff alleges he was subjected to the use of excessive force when he
was booked into MCDC on January 9, 2017. (ECF No. 6 at 6). He names Defendant Sanders,
Cornell, Hennessy, Barnes, and John Doe Officers 1-3 for this claim. (Id.). Plaintiff alleges that
the John Doe officers held him while Defendants Sanders and Cornell hit him in the face and body

prior to placing him in “suicide suit” and placing him in a solitary psychiatric cell. (Id. at 7-8).
He alleges he suffered cuts on his face and an abrasion on his eye from the use of force. (Id. at 7).
He further alleges that Defendant Hennessy sprayed him in the eyes with pepper-spray on January
12, 2017. (Id. at 9). Plaintiff alleges he was diagnosed with a corneal abrasion. (Id. at 11). As
his official capacity portion of this claim, Plaintiff alleges Defendants violated MCDC policies.
(Id. at 14).
For his second claim, Plaintiff alleges that he was denied medical care for his eyes between
March 3, 2017, and May 5, 2017. (Id. at 14). He names Defendant Walker and King for this
claim. (Id.). Plaintiff does not mention the corneal abrasion specifically on this claim, but does
reference erythromycin eye ointment, eyedrops, and Tramadol. (Id. at 11, 15). Thus, while

Plaintiff’s complaint for this claim is disjointed and difficult to follow, the undersigned will infer
that he is complaining of a lack of care for the corneal abrasion he alleges he received on January
9, 2022.1 (Id. at 15-20). Plaintiff alleges his eyes are “forever damaged” and require future
medical treatment that the Texas Department of Criminal Justice does not provide. (Id. at 20). As
his official capacity portion of this claim, Plaintiff alleges Defendants violated MCDC and the
health care provider policy, and made medical decisions based on cost instead of policy. (Id. at
21).

1 Plaintiff also lists other eye conditions and/or diagnoses that will be detailed in the timeline below for clarity.
For his third claim, Plaintiff alleges that Defendant Runion failed to train or supervise
MCDC staff, resulting in the excessive force incident on January 9, 2022. (Id. at 21-22). Plaintiff
also appears to allege that the MCDC pill-window policy in insufficient. (Id. at 23). As his official
capacity portion of this claim, Plaintiff alleges Defendant Runion permits “widespread violence.”

He cites a “history” of lawsuits and deaths at MCDC but provides no specific dates or other
information. (Id. at 25).
Plaintiff proceeds against all Defendants in both their individual and official capacities.
(Id. at 6, 14, 21). He seeks compensatory and punitive damages. (Id. at 25).
The undersigned entered a Service Order on December 7, 2018. (ECF No. 7). Defendant
King filed his Answer on December 24, 2018. (ECF No. 10). The Miller County Defendants filed
their Answer on January 2, 2019. (ECF No. 13). The Initial Scheduling Order was entered on
January 8, 2019. (ECF No. 16). On March 4, 2019, Defendants Hennesy, Barnes, and Cornell
were dismissed as parties in the case because Plaintiff had failed to provide accurate information
for service of these Defendants. (ECF No. 27).

On April 29, 2019, the Miller County Defendants filed a Motion to Stay the case. (ECF
No. 28). As grounds, the Miller County Defendants cited difficulty and expense in scheduling
Plaintiff’s deposition because he was incarcerated in a Texas Department of Criminal Justice unit
for a ten-year sentence. (Id.). They asked that the case be stayed until Plaintiff was released or
transferred to a correctional facility in Arkansas. (Id.). The stay was granted on May 3, 2019, and
Plaintiff’s case was administratively terminated. (ECF No. 30).
Plaintiff appealed the stay to the Eighth Circuit on August 22, 2019. (ECF No. 35). On
November 7, 2019, the Eighth Circuit appointed attorney Christopher Swiecicki to represent
Plaintiff for his appeal. (ECF No. 44). On February 26, 2021, the Eighth Circuit dismissed
Plaintiff’s appeal for lack of jurisdiction. (ECF No. 46). Mr. Swiecicki agreed to continue his
representation of Plaintiff, and the undersigned sua sponte appointed him to represent Plaintiff on
March 19, 2021. (ECF No. 49). Mr. Swiecicki filed his Notice of Appearance on March 23, 2021.
(ECF No. 50). On June 17, 2021, the Miller County Defendants filed a Motion asking that the

prior stay be considered and affirmed by Chief Judge Susan O. Hickey in accordance with the
Eighth Circuit opinion. (ECF No. 53). On June 18, 2021, Defendant King also filed a Motion
endorsing the Miller County motion and asking for the stay to be considered and affirmed by Chief
Judge Hickey. (ECF No. 55). On August 16, 2021, Chief Judge Hickey noted the increased
availability and use of video communication for litigation proceedings during the COVID-19
pandemic and vacated the stay. (ECF No. 63).
On October 20, 2021, the undersigned entered an Order setting a case management hearing
to be held by video teleconference on October 28, 2021. (ECF No. 72). After the hearing, an
Amended Scheduling Order was entered. (ECF No. 74). On January 11, 2022, Mr. Swiecicki
filed a Motion to Withdraw as attorney of record, stating he could no longer represent Plaintiff due

to Plaintiff’s conduct. (ECF No. 75). Mr. Swiecicki’s motion was granted on January 13, 2022.2
(ECF No. 76). The Order detailed Plaintiff’s actions in the case, which included a threat directed
at Mr. Swiecicki’s family.3 (Id.). Plaintiff was further warned that:
he should not contact the Court directly or attempt to speak to any member of the
Court’s staff, except as is necessary to file pleadings with the Clerk of Court. The
Court can and will offer no advice or direction to Plaintiff regarding this case.
Continued communication by Plaintiff with the Court directly will result in
sanctions including the possible dismissal of Plaintiff’s case for failing to follow
the Rules and Order of this Court.

2 The undersigned commends Mr. Swiecicki’s professionalism in representing Plaintiff at his deposition on January
23, 2022, after the Court had specifically stated in its Order that he was not required to do so. (ECF No. 85-3 at 2).
3 Because Plaintiff’s actions were described at length in the Order, they will not be duplicated here.
(Id.). The undersigned further noted that Plaintiff was no longer incarcerated at the time of the
Order and was free to seek private counsel of his own choosing. (Id.).
On March 14, 2022, the undersigned entered a Report and Recommendation which
recommended dismissal of the Doe Defendants because the deadline to do so in the Amended

Scheduling Order had passed, and Plaintiff had failed to identify any Doe Defendant. (ECF No.
79). The Report and Recommendation was adopted on June 15, 2022. (ECF No. 99).
Summary Judgment Motions
Defendant King filed his Motion for Summary Judgment on March 22, 2022. (ECF No.
80). Defendant King argues summary judgment in his favor is appropriate because he was not
deliberately indifferent to Plaintiff’s eye injury and the medical records from the University of
Arkansas for the Medical Sciences (‘UAMS”) indicate that Plaintiff’s corneal abrasion, which
occurred on January 23, 2017, was completely healed as of March 3, 2017. (Id.). He further argues
that Plaintiff failed to exhaust his administrative remedies regarding his corneal abrasion, he
cannot be held vicariously liable for any action or inaction of other medical personnel or jail staff,

and Plaintiff could not state any custom or policy which he believes is unconstitutional or was a
moving force behind any harm he allegedly suffered. (Id.). On March 28, 2022, the undersigned
entered an Order directing Plaintiff to submit his Summary Judgment Response by April 18, 2022.
(ECF No. 83).
The Miller County Defendants filed their Motion for Summary Judgment on March 29,
2022. (ECF No. 84). They argue that summary judgment in their favor is appropriate because
there is no medical evidence of any injury caused by the alleged excessive force incident and no
medical evidence that MCDC failed to provide medical care. (ECF No. 84 at 2). They further
argue that Plaintiff failed to exhaust his administrative remedies regarding the alleged excessive
force or denial of medical care. (Id.). They argue the failure to train/supervise claim against
Defendant Runion must fail because there is no evidence supporting the requisite elements of such
a claim. (Id. at 3). Finally, they argue they are entitled to qualified immunity for individual
capacity claims, and there is no evidence of an unconstitutional custom or policy to support an

official capacity claim. (Id. at 3). On April 4, 2022, the undersigned entered an Order directing
Plaintiff to file his summary judgment Response by April 25, 2022. (ECF No. 88).
On April 6, 2022, Plaintiff filed a Motion for Extension, asking for 60-day extension to file
his summary judgment Responses. He also asked to appointment of counsel. (ECF No. 89).
Plaintiff’s request for counsel was denied, and he was given an additional 30 days to submit his
Responses. (ECF No. 90). On May 13, 2022, Ms. DeeAnna Weimar filed her Notice of
Appearance as Counsel for Plaintiff and requested an additional extension to file the required
summary judgment Responses. (ECF Nos. 91, 92). The Motion was granted on May 16, 2022,
and Plaintiff was given until June 14, 2022, to file his Responses. (ECF No. 93).
Plaintiff timely filed two separate Responses to the Motions. (ECF No. 94, 95). A

document labelled as a “Combined Brief in Opposition to Both Summary Judgment Motions” was
signed by Ms. Weimar, as well as Alexander Wyrick, identified as co-counsel. (ECF No. 97). A
document labelled “Response to King’s Statement of Undisputed Facts” was also filed on June 14,
2022. (ECF No. 96). A document labelled “Affidavit of Disputed Facts” was filed the same day.4
(ECF No. 98).
Plaintiff does not dispute that he failed to exhaust any grievances concerning his claims of
excessive force or lack of medical care for his corneal abrasion. Instead, Plaintiff argues the
MCDC’s “heightened” grievance process was not an available remedy because it was a three-step

4 This “affidavit” is signed as a pleading by Plaintiff’s attorneys. Further, it is not signed by Plaintiff, notarized, or
sworn under penalty of perjury.
process, MCDC staff did not answer and return his Complaints, MCDC policy prevented him from
receiving a paper grievance form, and the MCDC policy does not clearly state where the forms are
located on the KIOSK system. He argues the policy acts as a dead-end because grievances which
do not follow MCDC policy requirements are returned to the inmate. (ECF No. 97 at 5-7).

Plaintiff also argues that his medical requests placed Defendants on notice of his issues and should
be accepted as a form of grievance exhaustion. (ECF No. 97 at 7). He further argues that
Defendants are not entitled to qualified immunity and Defendant King failed to ensure that Plaintiff
receive medication prescribed by outside providers for his corneal abrasion.5 Plaintiff raised
several other arguments which were without merit and will not be addressed.6
The Miller County Defendants filed a Reply on June 20, 2022. (ECF No. 100). They note
that the “Affidavit of Disputed Facts” does not appear to admissible, as required by Federal Rule
of Civil Procedure 56. (Id. 1). They further argue that, even allowing the affidavit to stand, nothing
in it changes the resolution of the case, as Plaintiff failed to meet proof with proof. (Id.). They
further point out at least one clear factual error in the affidavit, as stated in footnote 1. (Id.).

Defendant King filed his Reply on June 21, 2022. (ECF No. 101). He adopted the Miller County
Defendants’ Reply in toto and incorporated it as if set forth fully in his Reply. (Id.).
Timeline of Events
Plaintiff was booked into MCDC on January 9, 2017. (ECF No. 81-2 at 1). He was placed
on a “psych/suicide” watch by medical staff. (ECF No. 85-2 at 1). Plaintiff testified in his

5 Plaintiff erroneously characterizes the corneal abrasion as an eye infection. (ECF No. 97 at 4, 18).
6 For example, Plaintiff argues the Defendants waived their right to assert the affirmative defense of exhaustion
because they waited until the summary judgment motion to raise it. In their Reply, the Miller County Defendants
correctly note that in the Eighth Circuit, the defense of exhaustion need only be plead and proved prior to trial. See
Foulk v. Charrier, 262 F.3d 687, 697-98 (8th Cir. 2001). This standard in incorporated into the § 1983 case scheduling
order for this District, which requires that “[a]ny defense based upon qualified immunity or failure to exhaust
administrative remedies must be raised in the summary judgment motion or will be considered waived.” (ECF Nos.
16 at 3; 74 at 2). Defendants did precisely as they should under both Eighth Circuit precedent and the Orders of this
Court; the defense of administrative exhaustion was not waived.
deposition that he was in the psychiatric watch cell for 8 days, and was pepper-sprayed in the face
on January 12, 2017. (ECF No. 85-3 at 27, 54, 60). Plaintiff was seen in the MCDC infirmary on
January 16, 2017, for pitting edema in both ankles. He was transported to the Wadley Regional
Medical Center emergency room because he would not cooperate with MCDC nursing staff. (ECF

No. 81-1 at 2). While in the Wadley emergency room he was treated for hypertension, nausea,
and vomiting. (Id.). The emergency room record states:
The patient presents to the emergency department with paranoia. Onset: the
symptoms/episode began/occurred 3 day(s) ago. Associated signs and symptoms:
Pertinent positives; nausea. Pertinent negatives: vomiting. Severity of symptoms:
in the emergency department symptoms are unchanged. The patient has not
recently seen a physician. The patient is an inmate from a local jail. He states he
is worried that people are trying to poison him. He states he hasn’t eaten or had
anything to drink in three days. Pt reports nausea, but no vomiting and swelling to
his feet. Pt. has a hx or Hep C. No other complaints were stated.

(ECF No. 97-5 at 17) (emphasis added). There is no mention of an eye injury or cuts on his face
in the Wadley medical record for that day. (ECF Nos. 81-2; 81-5 at 2; 97-5 at 17) Plaintiff did
not complain of eye issues while in the emergency room. (ECF No. 97-5 at 17).
On January 23, 2017, Plaintiff was seen by MCDC nursing staff due to a staff report that
Plaintiff was bleeding out of his left eye. (ECF No. 81-1 at 2). He was sent back to the Wadley
emergency room for evaluation. (Id.). He reported pain in both eyes, with the left eye worse. He
reported rubbing his eyes with toilet paper and being pepper-sprayed. (ECF No. 97-5 at 3). He
was diagnosed with a small corneal abrasion in each eye. (ECF No. 97-5 at 4). He was prescribed
sulfacetamide drops and Ultram. (ECF No. 97-5 at 3).
On January 23, 2017, Plaintiff placed his first sick call request at MCDC. (ECF No. 81-1
at 2). He complained of problems with his eyes. (Id.). He was seen at the Wiggins Eye Center
on February 22, 2017. (Id.). The eye center referred Plaintiff to an eye specialist, and an
appointment was made for Plaintiff to be seen at the University of Arkansas for Medical Sciences
(“UAMS”) eye clinic the next day, on February 23, 2017. (Id.). His admission diagnosis was pain
in his left eye. His final diagnosis was a corneal abrasion, although there seems to be some
difference in the record diagnosis as to which eye. (ECF No. 97-3 at 1). Defendant King’s medical
expert, Dr. Trichel, interpreted the diagnosis for the corneal abrasion as being in the left eye. (ECF

No. 81-5 at 2). He was prescribed ofloxacin drops, erythromycin ointment, and tramadol. (ECF
No. 97-3 at 1-22). The UAMS record also indicated he had undergone LASIX surgery in both
eyes, and had cataracts in both eyes. (ECF No. 81-5 at 2; 97-3 at 3-8). He was scheduled to return
to UAMS on March 3, 2017. (ECF No. 81-5 at 2).
Plaintiff was seen at UAMS on March 3, 2017. (ECF No. 81-5 at 2; 97-3 at 21). The
medical notes state: “Corneal Abrasion healed. Stop Erythromycin ointment.” (ECF No. 97-3 at
21). Plaintiff was diagnosed with erythematous lids and ocular rosacea. He was prescribed
doxycycline tablets and warm compresses. (ECF No. 81-5 at 2; 97-3 at 21-24). He was scheduled
to return in 6 weeks. His vision was corrected to 20/25 in both eyes and the cornea was clear.
(ECF No. 81-5 at 2).

Dr. Trichel emphasizes in her opinion that “[i]f the abrasion is healed and the cornea is
clear, there is no permanent damage received to the eye and the patient will not have pain in relation
this. (ECF No. 81-5 at 3). She further notes that “ocular rosacea does not interfere with, is not a
result of trauma, or cause of any vision loss in this case.” (Id.).
Plaintiff provided medical records from the Texas Department of Criminal Justice
ophthalmology clinic, where he was seen on May 14, 2017. (ECF No. 97-1 at 1). He was
diagnosed with map-dot-fingerprint corneal dystrophy in both eyes, status post-LASIX in both
eyes, blepharitis of upper and lower eyelids in both eyes, and ocular rosacea in both eyes. (Id.).
He was prescribed eye drops. (Id.). As Plaintiff did not provide a medical expert opinion, the
Court researched whether map-dot fingerprint dystrophy could be caused by physical trauma to
the eye. Corneal dystrophies, which include map-dot-fingerprint dystrophy, are a class of rare
genetic diseases that affect the cornea and can impair vision over time.7 These dystrophies may
cause corneal erosions. (Id.).

Miller County Detention Center Grievance Policy and Handbook
Plaintiff and all Defendants agree that the MCDC policy controlling administrative
exhaustion at the time of Plaintiff’s incarceration was “Inmate Rights, Complaints & Grievances
SOP 09.01.” Both attached copies of the policy. (ECF Nos. 85-1 at 6-12; 97-10). The policy
outlines a three-step grievance process which starts with a written complaint as the informal stage
of the process, proceeds to a formal grievance, and ends with a grievance appeal. (ECF No. 85-1
at 6). A written complaint is to be submitted through the KIOSK in the inmate housing area. (Id.
at 6, 9). Inmates are informed at the beginning of the policy that “[a] grievance can only be made
subsequent to filing a written complaint and receiving a written response.” (Id. at 6). If an inmate
wishes to proceed to the formal grievance stage, the grievance must be submitted on a “Request

for Administrative Remedy Form, jail form 09.01A.” This form is available in hard copy from a
shift officer or supervisor. (Id. at 9). It is also available on the KIOSK. (ECF No. 85-1 at 2; 86
at 5). The form is then routed to either the Facility Warden or the Risk Management Officer, where
it is given a case number and logged. (Id. at 11). If the inmate is not satisfied with the grievance
response, he or she may appeal the decision. (Id. at 11-12). The appeal requires the inmate to
simply write that they wish to appeal on the Inmate Acknowledgment Form that they receive with
the decision. (Id. at 11). The inmate has 15 days after the grievance decision to appeal. (Id.).

7 https://www.webmd.com/eye-health/corneal-dystrophies (last accessed Dec. 13, 2022).
Grievances and appeals which have already been answered do not require an additional
response, and repetitive grievances or appeals will be returned to the inmate. (ECF No. 85-1 at 9).
A grievance that is not accompanied by the original informal complaint and response will be
returned to the inmate. (ECF No. 85-1 at 10). A grievance which contains more than one issue,

does not follow the prescribed format, seeks a remedy for an issue beyond the facility’s control,
contains profanity (unless quoting), or does not have an original copy of the complaint on file will
be returned to the inmate. (ECF No. 85-1 at 10-11).
The Miller County Defendants also submitted a copy of the Inmate Handbook. (ECF No.
85-1 at 33-39). On page 2 of the Handbook, inmates are informed that there is a difference between
a request and a grievance. (Id. at 34) They are also informed that a grievance must be placed in
writing on a grievance form. (Id.). They are further informed that an inmate request must be on a
Request Form, while an inmate grievance must be on a Grievance Form. (Id. at 35).
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
A. Failure to Exhaust Administrative Remedies
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 MCDC grievances concerning his

claims of excessive force and denial of medical care for his corneal abrasion. Nor do any of his
arguments support a claim that he is eligible for an exception to the PLRA exhaustion requirement.
Plaintiff argues the MCDC grievance process was not an available remedy because inmates
are required to follow the policy in order to submit complaints and grievances, it is a three-step
process, MCDC staff did not answer and return his complaints, MCDC policy prevented him from
receiving a paper grievance form, and the MCDC policy does not clearly state where the forms are
located on the KIOSK system. Plaintiff also argues that his medical requests placed Defendants
on notice of his issues and should be accepted as an alternative form of grievance exhaustion.
The mere fact that the MCDC process contains three steps and requires innates to follow a
set of very typical grievance rules does not render the process so difficult as to render it

unavailable. Plaintiff appears to be arguing that his situation meets the standard of unavailability
detailed in Ross v. Blake, 136 S. Ct. 1850, 1853-54 (2016). In Ross, the Supreme Court recognized
at least three circumstances where an administrative process is not “capable of use” and therefore
unavailable to exhaust: (1) where “it operates as a simple dead end—with officers unable or
consistently unwilling to provide any relief to aggrieved inmates”; (2) where the “administrative
scheme” is “so opaque” as to be practically “incapable of use”; and (3) where “administrators
thwart inmates from taking advantage of a grievance process through machination,
misrepresentation, or intimidation.” Muhammad v. Mayfield, 933 F.3d 993, 1000 (8th Cir. 2019)
(citing Ross, 136 S. Ct. at 1858-60) (internal quotations and citations omitted).
The situation in Ross is quite distinguishable from this case. In Ross, an inmate
complaining of an excessive force incident was attempting to navigate the tension between the
Maryland prison system’s Internal Investigation Unit (IIU) process for prison staff misconduct and
its Administrative Remedy Procedure (ARP). Ross, 136 S. Ct. at 1855-62. The case begins with

Inmate Blake being taken to the segregation unit by guards Madigan and Ross. During that move,
Madigan punched Blake repeatedly while Ross held the handcuffed Blake. Id. at 1855. When
Blake reported the incident, prison staff believed Madigan to be at fault, and referred Madigan’s
role in the incident to the IIU. Id. The IIU subsequently issued a report condemning Madigan’s
actions, and he was forced to resign. Id. Inmate Blake then brought a § 1983 lawsuit against both
Madigan and Ross, winning an award against Madigan. Id. Ross, however, raised the affirmative
defense that Plaintiff had not exhausted any administrative remedies against him using the ARP
process. Blake argued that he thought the IIU investigation served as a substitute for ARP. Id.
The Maryland District Court rejected Blake’s argument and dismissed the case against
Ross for failure to exhaust. Id. The Fourth Circuit Court of Appeals reversed, and Ross appealed

to the Supreme Court. Id. at 1855-56. Discovery in the case revealed that inmates who attempted
to pursue an ARP grievance after an IIU referral were routinely told that “no further action would
be taken through the ARP process because the matter had been referred to the [IIU].” Id. at 1861.
Justice Kagan further noted that inmates who refused to accept this jurisdictional denial and
appealed the “no further action” finding had at times received a ruling on the merits with no
discussion of the ARP/IIU issue. Id. at 1862. As a result, the case was remanded for further
consideration as to “whether Blake had ‘available’ remedies to exhaust.” Id.
No such tension between two prison reporting systems exists here. The mere fact that
Plaintiff must follow the correct procedure to file an informal complaint, a formal grievance, and
then an appeal to exhaust his administrative remedies does not render the process so opaque as to
be unavailable. Indeed, the grievance procedure for the Arkansas Division of Correction, which
has not been found to be unavailable to inmates despite regular challenges, is also a three-step
process with considerably more precise requirements and formality than that of the MCDC

process. See, e.g., Muhammad v. Mayfield, 933 F.3d 993, 1000 (8th Cir. 2019) (citing Ross, 136
S. Ct. at 1858-60); Klingensmith v. DeBoer, Case No. 6:19-cv-06126 (W.D. Ark. Sept. 13, 2022).
Plaintiff argues that the medical requests for sick calls he submitted should have been
sufficient to exhaust his administrative remedies. The MCDC grievance policy and Inmate
Handbook makes it clear to inmates that requests and grievances are not procedurally or
substantively the same, and nothing in the MCDC grievance policy contemplates the use of a
request – medical or otherwise – to satisfy the grievance process. See Jones, 549 U.S. at 218 (“it
is the prison’s requirements, and not the PLRA, that define the boundaries of proper exhaustion”).
Plaintiff argues MCDC staff did not answer and return his complaints. Plaintiff failed,
however, to provide any copies of complaints which had been submitted and ignored at the

informal first step. Thus, his argument is contradicted by the summary judgment record. See,
Scott, 550 at 380. (a court should not use facts blatantly contradicted by the record for purposes
of ruling on a motion for summary judgment).
Plaintiff argues that MCDC policy prevented him from receiving a paper grievance form,
and the MCDC policy does not clearly state where the grievance forms are located on the KIOSK
system. These arguments are without merit. Plaintiff first notes that he was in a psychiatric cell
for 8 days and not able to access the KIOSK to submit a complaint. (ECF No. 97). Accepting this
allegation as true, there is nothing in the summary judgment record indicating Plaintiff submitted
a complaint or a grievance in the KIOSK after those 8 days had passed. The summary judgment
record indicates he successfully submitted 22 medical requests for a sick call on the KIOSK, so
there can be no argument that he was unable to access or use the KIOSK after those 8 days in the
psychiatric cell. As for his argument that the KIOSK was too complicated for him to find the
digital grievance form, the MCDC policy also permits inmates to request a hard-copy or paper

grievance form. There is also no evidence in the summary judgment record that he submitted a
request for a grievance form on the KIOSK, and as noted above, he was well-versed in submitting
requests on the KIOSK.
For these reasons, there is no material fact in dispute concerning PLRA exhaustion for
Plaintiff’s claims of excessive force and denial of medical care, and all Defendants are entitled to
summary judgment as a matter of law on these claims.8
B. Failure to Train or Supervise
In determining whether an action fails to state a claim upon which relief can be granted,
the Court must engage in a two-step inquiry. First, the Court must identify the allegations in the
complaint that are not entitled to the assumption of truth. Ashcroft v. Iqbal, 566 U.S. 662 (2009).

These include “legal conclusions” and “[t]hreadbare recitals of the elements of a cause of action
[that are] supported by mere conclusory statements.” Id. at 678. Second, the Court must determine
whether the complaint states a plausible claim for relief. Id. at 679. A plaintiff is required to plead
facts that show more than the “mere possibility of misconduct.” Id.
“When a supervising official who had no direct participation in an alleged constitutional
violation is sued for failure to train or supervise the offending action, the supervisor is entitled to

8 The summary judgment record, including Defendant Walker’s affidavit, also indicate that Plaintiff submitted no
complaints or grievances on any topic during the relevant period. (ECF No. 85-1 at 2). Thus, it appears that Plaintiff
also failed to exhaust his administrative remedies for his claim of failure to train or supervise against Defendant
Runion. The Miller County Defendants did not specifically address this in their Brief, however, and instead argued
this claim on the merits. (ECF No. 86 at 7, 10-11).
qualified immunity unless plaintiff proves that the supervisor (1) received notice of a pattern of
unconstitutional acts committed by a subordinate, and (2) was deliberately indifferent to or
authorized those acts.” Marsh v. Phelps County, 902 F.3d 745, (8th Cir. 2018) quoting S.M. v.
Krigbaum, 808 F.3d 335, 340 (8th Cir. 2015).

Here, the summary judgment record is clear that Defendant Runion had no direct
involvement with Plaintiff, or any issues related to Plaintiff, at any time during Plaintiff’s 2017
incarceration in MCDC. There is no evidence in the summary judgment record of the existence
of any unconstitutional customs at MCDC, or that Plaintiff submitted any complaints or grievances
concerning alleged constitutional violations at MCDC. Not only has Plaintiff failed to state any
facts to support his legal conclusions that Defendant Runion failed to train, supervise, or discipline
MCDC staff, but Defendant Runion did not receive any notice of a pattern of unconstitutional
violations at MCDC. He is, therefore, is entitled to qualified immunity.
Accordingly, the Court finds Defendant Runion is entitled to summary judgment on this
claim.

IV. CONCLUSION
Accordingly, it is recommended that the Motions for Summary Judgment by Defendant
King (ECF No. 80), and Defendants Walker, Sanders and Runion (“Miller County Defendants”).
(ECF No. 84) be GRANTED and Plaintiff’s claims for excessive force and denial of medical care
should be DISMISSED WITHOUT PREJUDICE,9 while his claim for failure to train or supervise
should 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

9 Claims that are dismissed for failure to exhaust administrative remedies should be dismissed without prejudice. See
Sergent v. Norris, 330 F.3d 1084, 1085 (8th Cir. 2003).
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10632571. Public record. Not legal advice.