# Lee v. Cox

> District Court, W.D. Arkansas · November 13, 2024

URL: https://www.frixlaw.com/law-library/cases/10740215

## Case

- **Court:** District Court, W.D. Arkansas
- **Decided:** November 13, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10740215

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10740215. Public record. Not legal advice.