Lee v. Cox

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

TEXARKANA DIVISION

LARRY MARTILLUS LEE PLAINTIFF

v. Civil No. 4:23-cv-04093-BAB

CAPTIAN RAMI COX; and

JEFF BLACK DEFENDANTS

ORDER AND MEMORANDUM OPINION

Plaintiff, Larry Martillus Lee filed this action pursuant to 42 U.S.C. § 1983. Plaintiff

proceeds pro se and in forma pauperis. Currently before the Court is Defendants’ Motion for

Summary Judgment on the limited issue of exhaustion. (ECF No. 25). Plaintiff responded.

(ECF Nos. 40, 41, 42, 43). Defendants replied. (ECF No. 44). Plaintiff filed multiple sur-

replies. (ECF Nos. 46, 48, 49). This matter is now ripe for consideration.1

0F

I. BACKGROUND

Plaintiff filed his original Complaint and Application to proceed in forma pauperis (“IFP”)

on October 3, 2023 in the Eastern District of Arkansas. (ECF Nos. 1, 2). The case was

transferred to this Court on October 4, 2023. (ECF No. 3). The Court granted Plaintiff IFP status

on October 5, 2023, and ordered Plaintiff to file an amended complaint on the same day. (ECF

Nos. 6-7).

1 On April 16, 2024, the parties consented to have the undersigned conduct all proceedings in this

case including a jury or nonjury trial and to order the entry of a final judgment in accordance with

28 U.S.C. § 636(c) and Fed. R. Civ. P. 73. (ECF No. 30).

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Plaintiff filed his Amended Complaint on October 19, 2023. (ECF No. 9). In his

Amended Complaint, Plaintiff names two Defendants: Captain Rami Cox, the Jail Administrator

at the Lafayette County Detention Center (“LCDC”), and Jeff Black, Sheriff of Lafayette County.

(ECF No. 9). Plaintiff indicated he was a convicted inmate at the time in issue. Id. In Plaintiff’s

Claim One, he states that Defendant Black violated his constitutional rights on September 25, 2023

through the conditions of Plaintiff’s confinement. Id. at 4. Specifically, Plaintiff claims he was

forced to sleep on the floor because his pod was overcrowded and the population of the LCDC

exceeded that which is constitutionally permissible. Id. at 5. Plaintiff asserts this claim against

Defendant Black in his individual capacity only. Id.

In Plaintiff’s Claim Two, he alleges Defendant Cox violated his constitutional rights on

September 23, 2023 through his conditions of confinement. (ECF No. 9, pp. 7-8). Specifically,

Plaintiff complains of his food tray being washed in the inmate shower. Id. Plaintiff asserts this

claim against Defendant Cox in her individual capacity only. Id.

In Claim Three, Plaintiff asserts Defendant Cox violated his constitutional rights on

September 22, 2023 by placing him in lockdown without a disciplinary hearing. Plaintiff alleges

he was locked down for fourteen days without privileges, cold running water, or his hour out in

violation of his due process rights. (ECF No. 9, p. 12).

In Claim Four, Plaintiff asserts Defendant Cox violated his constitutional rights on

September 22, 2023 when she placed Plaintiff in a barracks with his known enemy. (ECF No. 9,

p. 13). Plaintiff claims Defendant Cox knew of his problem with the other inmate in D-Pod,

where he was placed, but she placed him there anyway. Id.

Plaintiff seeks compensatory and punitive damages, as well as injunctive relief. (ECF No.

9, p. 9).

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In their Motion and supporting documents, Defendants argue the LCDC has a grievance

procedure, which Plaintiff utilized during his incarceration. However, Plaintiff did not exhaust

his administrative remedies regarding the claims alleged in his Amended Complaint through the

LCDC grievance procedure. (ECF No. 25). Specifically, Defendants argue Plaintiff filed no

grievances or requests regarding his conditions of confinement claims in Claims One or Two.

Defendants also argue Plaintiff filed no grievance regarding his due process claim in Claim Three.

Furthermore, while Plaintiff submitted a grievance, on September 20, 2023, regarding his

placement in D-pod with his enemy, he did not appeal this grievance as required by the LCDC

grievance procedure. Id.

Plaintiff responded to Defendants’ Motion with four separate filings. (ECF Nos. 40, 41,

42, 43). First, in his Affidavit, sworn under penalty of perjury, Plaintiff states he did file

grievances on all the issues raised in his Amended Complaint, and he did exhaust all administrative

remedies available to him through the LCDC grievance procedure. (ECF No. 40). Plaintiff

attaches hand-written grievances he purports to be grievances he submitted to Defendant Cox in

satisfaction of the LCDC grievance procedure. Id. These handwritten grievances include

complaints regarding the overcrowding in the LCDC, the trays being washed in the showers, and

Plaintiff’s failure to protect claim. (ECF Nos. 40, p. 5-9; 41, p. 5). Plaintiff argues his Affidavit,

with attached handwritten grievances, and Defendants’ evidence are contradictory. Thus,

creating an issue of fact as to whether he exhausted his administrative remedies. (ECF No. 41).

Defendants replied, arguing Defendant Cox never received the handwritten grievances

Plaintiff attached to his Affidavit, and the LCDC has no record of such handwritten grievances.

(ECF No. 44). Defendants submit an Affidavit, sworn under penalty of perjury, from Defendant

Cox with their Reply. (ECF No. 44-1). In this Affidavit, Defendant Cox states she did not

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receive Plaintiff’s handwritten grievances that are attached to his Affidavit. Regarding the

September 20, 2023 electronic grievance on the failure to protect issue, Defendant Cox states,

Plaintiff did in fact request she forward this grievance to the Sheriff. However, since this request

was made prior to Defendant Cox’s response to the grievance, she did not respond, but forwarded

the grievance straight to the Sheriff. Id. Plaintiff submitted the electronic grievance on

September 20, 2023 and submitted a request it be forwarded to the Sheriff on September 21, 2023.

(ECF No. 27-3, p. 19). According to Defendant, this is not the proper procedure under the LCDC

grievance procedure. Plaintiff should have waited on Defendant Cox’s response then, if he was

not satisfied with her response, requested his grievance be forwarded to the Sheriff. (ECF No.

44-1).

Plaintiff filed multiple documents as a sur-reply. (ECF Nos. 46, 48, 49). First, Plaintiff

states, in a second Affidavit, sworn under penalty of perjury, that he submitted the handwritten

grievances while he was on lockdown without access to the KIOSK. Plaintiff further explains,

received copies of those handwritten grievances back without response. Without access to the

KIOSK he could not file electronic grievances. Lastly, he states Defendant Cox told him she

threw away all his grievance records. (ECF No. 46-1). Plaintiff also moved for attorney’s fees

and that Defendant Cox’s affidavits be struck from the record. (ECF Nos. 48, 49).

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

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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. "A case founded

on speculation or suspicion is insufficient to survive a motion for summary judgment." Id. at 610.

“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).

Under § 1983, a defendant may be sued in either his personal capacity, or in his official

capacity, or claims may be stated against a defendant in both his personal and his official

capacities. The type of conduct that is actionable and the type of defense available depend on

whether the claim is asserted against a defendant in his official or individual capacity. See

Gorman v. Bartch, 152 F.3d 907, 914 (8th Cir. 1998) (internal citations omitted). “Claims against

individuals in their official capacities are equivalent to claims against the entity for which they

work; they require proof that a policy or custom of the entity violated the plaintiff’s rights, and the

only type of immunity available is one belonging to the entity itself.” Id. Personal capacity

claims “are those which allege personal liability for individual actions by officials in the course of

their duties; these claims do not require proof of any policy and qualified immunity may be raised

as a defense” to these individual capacity claims. Id. To state a claim under 42 U.S.C. § 1983,

Plaintiff must allege that the defendant acted under color of state law, and that the actor violated a

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right, privilege, or immunity secured by the Constitution. West v. Atkins, 487 U.S. 42, 48 (1988);

Dunham v. Wadley, 195 F.3d 1007, 1009 (8th Cir.1999).

Ii. DISCUSSION

The 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) (held unconstitutional on other grounds). 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 explained that “to properly exhaust administrative remedies prisoners

must complete the administrative review process in accordance with the applicable procedural

rules.” /d. at 218 (internal quotation marks and citation omitted). The Jones 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 1s the prison’s requirements, and not the PLRA,

that define the boundaries of proper exhaustion.” Jd.

The parties here do not dispute the LCDC has a Grievance Procedure, and Plaintiff used

this procedure throughout his incarceration at the LCDC. Such Grievance Procedure reads in

whole:

GRIEVANCE PROCEDURES: .

Lenieaermim cetera coos earn

shall determine if the grievance Is legitimate in nature or filvolous and take any necessary

action, if an Inmate/detalnee Is not satisfied with the decision of the Jall Administrator, tha

Toromeatanee ae i request te orlovanos be forwarded to the Sheriff. The Sheriff shall then

nature and take any necessary action.

(ECF No. 27-4). In order to satisfy the PLRA’s exhaustion requirement, a prisoner must pursue

the grievance procedure process to its final stage. See Hammett v. Cofield, 681 F.3d 945, 947 (8th

Cir. 2012); see also King v. Iowa Dep’t of Corrs., 598 F.3d 1051, 1053 (8th Cir. 2010). It is

undisputed the LCDC procedure requires a request for the grievance to be forwarded to the Sheriff,

as a type of appeal, if the inmate is unsatisfied with the decision of the Jail Administrator. (ECF

No. 27-4).

A. Claims One and Two

The material facts as to whether Plaintiff filed initial grievances on his Claims One and

Two are clearly disputed. Defendants state Plaintiff did not submit electronic or handwritten

grievance on the issues of overcrowding and shower tray washing. (ECF Nos. 27-1, p. 1; 44-1,

p. 1). Plaintiff, in direct contradiction, states he did submit handwritten grievances while on

lockdown without access to the KIOSK and he attaches those grievances to his Response. (ECF

No. 40). At this stage, the Court cannot weigh evidence or determine credibility. Reeves v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000) (explaining the court must draw all

reasonable inferences in favor of the nonmoving party and may not make credibility

determinations or weigh the evidence as those are jury functions). Therefore, the Court cannot

determine, on the record before it, whether Plaintiff exhausted his administrative remedies as to

Claims One and Two.

B. Claim Three

However, there is no genuine dispute regarding Plaintiff’s Claim Three for Due Process.

There are no grievances on the record, either electronic or handwritten regarding Plaintiff’s due

process claim. In his Response Affidavit, Plaintiff references a handwritten grievance as his

grievance on this issue, however, the grievance Plaintiff references relates to sanitation and

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unconstitutional conditions of confinement not lockdown or due process. (ECF No.40, pp. 2, 4).

Accordingly, the Court finds there are no material facts in dispute regarding the exhaustion of

Plaintiff’s Claim Three for due process.

C. Claim Four

Next, Defendants do not dispute that Plaintiff filed an electronic grievance regarding his

Claim Four for failure to protect. Instead, Defendants argue Plaintiff failed to properly appeal

this grievance. Specifically, Defendants state Plaintiff should not have requested his grievance

be forwarded to the Sheriff before the Jail Administrator initially responded to said grievance.

(ECF Nos. 44, 44-1). Defendant Cox states in her second Affidavit that on September 21, 2023,

one day after submitting the original grievance and before Defendant Cox’s response, Plaintiff

requested the grievance be submitted to the Sheriff. (ECF No. 44-1).

The Court notes the LCDC grievance procedure is vague and lacking in deadlines or

detailed procedure, however, it does clearly state that the inmate “shall” request the grievance to

be forwarded to the Sheriff if he is unsatisfied with the decision of the jail administrator. (ECF

No. 27-4). Plaintiff does not dispute that he failed to wait on a decision from Defendant Cox prior

to requesting his grievance be forwarded to the Sheriff. Accordingly, the Court finds Plaintiff

failed to properly exhaust the LCDC Grievance Procedure.

Regarding Plaintiff’s argument that Defendant Cox’s Affidavits should be struck because

they contradict one another, the Court disagrees. Defendant Cox’s first Affidavit states that

Plaintiff failed to appeal his September 20, 2023 grievance. (ECF No. 27-1). Defendant Cox’s

second Affidavit simply goes into detail on how Plaintiff failed to appeal his September 20, 2023

grievance—Plaintiff requested an immediate forward to the Sheriff rather than waiting on the Jail

Administrator’s response. (ECF No. 44-1). There is no reason to strike these Affidavits from

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the record or impose any other sanction such as attorney’s fees on Defendant Cox.

IV. CONCLUSION

For these reasons, Defendants’ Motion for Summary Judgment on the limited issue of

exhaustion (ECF No. 25) is hereby GRANTED in part and DENIED in part. Plaintiff’s Claims

One and Two shall proceed and Plaintiff’s Claims Three and Four are hereby dismissed without

prejudice for failure to exhaust pursuant to 42 U.S. C. § 1997e(a).

IT IS SO ORDERED this 13th day of November 2024.

Barry A. Bryant

/s/

HON. BARRY A. BRYANT

UNITED STATES MAGISTRATE JUDGE

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