Allen v. Brown

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

CENTRAL DIVISION

ZACHERY TREY ALLEN PLAINTIFF

ADC #158242

v. No: 4:23-cv-00198-KGB-PSH

STEVEN D. BROWN, et al. DEFENDANTS

PROPOSED FINDINGS AND RECOMMENDATION

INSTRUCTIONS

The following Recommendation has been sent to Chief United States District

Judge Kristine G. Baker. You may file written objections to all or part of this

Recommendation. If you do so, those objections must: (1) specifically explain the

factual and/or legal basis for your objection, and (2) be received by the Clerk of this

Court within fourteen (14) days of this Recommendation. By not objecting, you may

waive the right to appeal questions of fact.

DISPOSITION

I. Introduction

Plaintiff Zachery Trey Allen, an Arkansas Division of Correction inmate, filed

a pro se complaint pursuant to 42 U.S.C. § 1983 on March 15, 2023 (Doc. No. 2).

Allen was subsequently granted leave to proceed in forma pauperis and invited to

file an amended complaint to clarify and narrow his claims. Doc. Nos. 4 & 6. Allen

filed an amended complaint on May 2, 2023, alleging that he was held in

unconstitutional conditions of confinement for 72 hours beginning on January 1,

2023 (Doc. No. 7). The Court recommended dismissal of Allen’s claims without

prejudice for failure to state a viable claim. See Doc. No. 9. Allen then moved to

amend his complaint and attached a proposed amended complaint (Doc. Nos 11 &

11-1). Chief Judge Baker adopted that portion of the Court’s recommendation

concerning dismissal of the conditions-of-confinement claims, but did not dismiss

the case. See Doc. No. 13. Allen was instead afforded leave to file his proposed

amended complaint raising additional claims related to his 72 hours on behavior

control in January 2023. Id. The undersigned screened Allen’s Second Amended

Complaint (Doc. No. 15), and ordered service on defendants Supervising Lieutenant

Steven D. Brown, Supervising Sergeant Jody Robertson, Warden Todd Ball, and

Major Antonio D. Johnson, Jr. (the “Defendants”). See Doc. No. 16.

Before the Court is a motion for partial summary judgment, a brief in support,

and a statement of facts filed by the Defendants claiming that Allen did not exhaust

available administrative remedies with respect to all of his claims against them

before he filed this lawsuit (Doc. Nos. 42-44). The Court notified Allen of his

opportunity to file a response and separate statement of disputed facts, but he failed

to do so. See Doc. No. 45. Because Allen failed to controvert the facts set forth in

the ADC Defendants’ statement of undisputed material facts, Doc. No. 44, those

facts are deemed admitted. See Local Rule 56.1(c). For the reasons described below,

the undersigned recommends that the Defendants’ motion for partial summary

judgment be granted.

II. Allen’s Complaint Allegations & Dismissal of Conditions Claim

Some initial clean-up is necessary in this case. In both his original and

amended complaints, Allen alleged that he was held in unconstitutional conditions

of confinement for 72 hours beginning on January 1, 2023, after Sergeant David

Hutchinson and Corporal Jerome Eason placed him there with no clothing or a

blanket on the orders of Lieutenant Steven Brown. Doc. Nos. 2 & 7. Allen also

claimed that temperatures outside were below 40 and the fans were turned on for

two days, and that Robertson denied him a blanket or boxers on January 2, 2023. Id.

These claims were previously recommended for dismissal because the conditions

alleged did not amount to a constitutional violation and because Allen did not

describe any physical injury he suffered as a result of the alleged conditions. See

Doc. No. 9.

In his Second Amended Complaint, Allen restated these allegations,1 but did

not add any additional facts or describe any injury relating to these conditions. Doc.

No. 15 at 4. The Court therefore did not construe Allen’s Second Amended

1 Allen did not name Hutchinson or Eason as defendants in the Second Amended

Complaint. Doc. No. 15 at 1-2.

Complaint as pursuing a conditions-of-confinement claim based on these

allegations. Allen made a number of new allegations in his Second Amended

Complaint, which survived the Court’s screening process. Specifically, he alleged

that Robertson sexually assaulted and harassed him while he was in isolation, and

that he wrote an emergency grievance regarding the harassment on January 11, 2023.

Doc. No. 15 at 4-5. Allen further alleged that defendants Ball, Johnson, and Brown

“purposely failed and refused to take necessary corrective action and were

deliberately indifferent to take necessary corrective action and were deliberately

indifferent allowing Defendant Sgt. J. Roberson to sexually harass and sexually

assault me as described in my Amended Complaint.” Id. at 6. The Court construed

Allen’s Second Amended Complaint as solely raising these new claims.

To the extent Allen raised conditions-of-confinement claims in his Second

Amended Complaint, these claims should be dismissed for the reasons previously

explained. See Doc. Nos. 9 & 13. As Chief Judge Baker stated, “Mr. Allen did not

allege . . . . a specific, physical injury, which is a prerequisite for compensation in

this type of case.” Doc. No. 13 at 2. Accordingly, the Court recommends Allen’s

conditions-of-confinement claims be DISMISSED without prejudice for failure to

state a claim upon which relief may be granted. However, if this recommendation

is not adopted, these claims should proceed against Brown for the reasons described

herein. See discussion of Grievance TU-23-00030 in IV.C.2, infra (finding that the

grievance should serve to exhaust any remaining conditions-of-confinement claims

against Brown).

III. Legal Standard

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is

proper if “the movant shows that there is no genuine dispute as to any material fact

and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ.

P. 56(a); Celotex v. Catrett, 477 U.S. 317, 321 (1986). When ruling on a motion for

summary judgment, the court must view the evidence in a light most favorable to

the nonmoving party. Naucke v. City of Park Hills, 284 F.3d 923, 927 (8th Cir.

2002). The nonmoving party may not rely on allegations or denials, but must

demonstrate the existence of specific facts that create a genuine issue for trial. Mann

v. Yarnell, 497 F.3d 822, 825 (8th Cir. 2007). The nonmoving party’s allegations

must be supported by sufficient probative evidence that would permit a finding in

his favor on more than mere speculation, conjecture, or fantasy. Id. (citations

omitted). An assertion that a fact cannot be disputed or is genuinely disputed must

be supported by materials in the record such as “depositions, documents,

electronically stored information, affidavits or declarations, stipulations (including

those made for purposes of the motion only), admissions, interrogatory answers, or

other materials . . .”. Fed. R. Civ. P. 56(c)(1)(A). A party may also show that a fact

is disputed or undisputed by “showing that the materials cited do not establish the

absence or presence of a genuine dispute, or that an adverse party cannot produce

admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(B). A dispute is

genuine if the evidence is such that it could cause a reasonable jury to return a verdict

for either party; a fact is material if its resolution affects the outcome of the case.

Othman v. City of Country Club Hills, 671 F.3d 672, 675 (8th Cir. 2012). Disputes

that are not genuine or that are about facts that are not material will not preclude

summary judgment. Sitzes v. City of West Memphis, Ark., 606 F.3d 461, 465 (8th

Cir. 2010).

IV. Analysis

Defendants argue that they are entitled to summary judgment with respect to

certain claims because Allen failed to exhaust all available administrative remedies

before he filed this lawsuit. In support of their motion, the Defendants submitted the

declaration of Terri Grigsby Brown, the ADC’s inmate grievance supervisor (Doc.

No. 42-1); applicable ADC grievance policy (Doc. No. 42-2); a copy of Allen’s

grievance history (Doc. No. 42-3); a copy of Grievance TU-23-00027 (Doc. No. 42-

4); a copy of Grievance TU-23-00030 (Doc. No. 42-5); and a copy of Grievance TU-

23-00149 (Doc. No. 42-6).

A. Exhaustion of Administrative Remedies

The Prison Litigation Reform Act (PLRA) requires an inmate to exhaust

prison grievance procedures before filing suit in federal court. See 42 U.S.C.

§1997e(a); Jones v. Bock, 549 U.S. 199, 202 (2007); Burns v. Eaton, 752 F.3d 1136,

1141 (8th Cir. 2014); Johnson v. Jones, 340 F.3d 624, 628 (8th Cir. 2003).

Exhaustion under the PLRA is mandatory. Jones v. Bock, 549 U.S. at 211; Hammett

v. Cofield, 681 F.3d 945, 949 (8th Cir. 2012). “[T]he PLRA’s exhaustion

requirement applies to all inmate suits about prison life whether they involve general

circumstances or particular episodes, and whether they allege excessive force or

some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). The PLRA does

not prescribe the manner in which exhaustion occurs. See Jones v. Bock, 549 U.S.

at 218. It merely requires compliance with prison grievance procedures to properly

exhaust. See id. Thus, the question as to whether an inmate has properly exhausted

administrative remedies will depend on the specifics of that particular prison’s

grievance policy. See id.

Pursuant to the ADC’s grievance policy, Administrative Directive 19-34,

inmates are provided Unit Level Grievance Forms as part of the Inmate Grievance

Procedure. See Doc. No. 42-2 at 5. To resolve a problem, an inmate must first seek

informal resolution by submitting a Step One Unit Level Grievance Form

(Attachment I) within 15 days after the occurrence of the incident. Id. at 6. Inmates

are to “specifically name each individual involved for a proper investigation and

response to be completed by the ADC.” Id. at 5. An inmate must be “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 6. A problem solver or staff member holding the rank of sergeant or

above can collect the grievance and return the yellow and pink copies of the

grievance to the inmate as receipts. Id. at 7. The problem solver or staff member

investigates the complaint and may attempt to resolve the complaint by meeting with

the inmate or taking certain other steps, but ultimately must provide a written

response at the bottom of the form. Id. at 7-8. If the inmate is not satisfied with the

resolution or the problem solver does not respond within three working days, he may

then complete Step Two of the grievance procedure and submit either the pink or

yellow copy of his Unit Level Grievance Form as a formal grievance. Id. at 8. The

inmate retains either the pink or yellow copy, whichever he did not submit for Step

Two. Id. at 9. If a formal grievance is medical in nature, it is assigned a code and

forwarded to the appropriate medical personnel for response. Id. at 10.

The inmate should receive a Response to the Unit Level Grievance Form

(Attachment III or IV depending on whether the grievance is medical in nature), or

an Acknowledgement or Rejection of Unit Level Grievance (Attachment II). Id. at

10-11. If the inmate receives no response, or if the inmate is not satisfied with the

response, the inmate can then appeal to the Deputy Director. Id. at 12. An inmate’s

appeal must be written in the space provided on the Response to Unit Level

Grievance Form (Attachment III or IV) or the Acknowledgment or Rejection of Unit

Level Grievance (Attachment II). Id. at 12. The inmate must include the original

Unit Level Grievance Form (Attachment I) and either the Response to Unit Level

Grievance Form (Attachment III or IV) or the Acknowledgement or Rejection of the

Unit Level Grievance (Attachment II) with his appeal. Id. If an inmate fails to

submit either of the two pages with his appeal, the appeal may be returned to the

inmate as rejected. Id. Once the Deputy Director responds or the appeal is rejected,

the grievance process is complete. Id. at 13. According to the ADC’s grievance

policy, the entire grievance procedure should be completed within 76 working days

absent an extension or unforeseen circumstances. Id. at 14. The grievance policy

specifically states that inmates must exhaust administrative remedies at all levels of

the procedure before filing a federal civil rights lawsuit. Id. at 19.

B. Relevant Grievances

In her declaration, Inmate Grievance Supervisor Terri Grigsby-Brown stated

that she reviewed Allen’s grievance appeal file and found three grievances that either

address his claims in this case or name any of the Defendants: TU-23-00027, TU-

23-00030, and TU-23-00149. See Doc. No. 42-1 at ¶¶ 33-35. The Court describes

the first two because they describe pending claims in this case. TU-23-00149

describes a cup restriction/underfeeding complaint and briefly mentions Johnson in

connection to Allen’s January 1, 2023 placement on behavior control;2 however,

Johnson is not named as a defendant in connection to that claim in Allen’s Second

Amended Complaint. Accordingly, there is no need to discuss this grievance further.

1. TU-23-00027.

Allen submitted TU-23-00027 on January 11, 2023. Doc. No. 42-4 at 3. He

alleged that Robertson sexually harassed him on January 4, January 9, and January

10, 2023, by making sexually suggestive comments, and that while shackling him

for the shower, Robertson pressed up against Allen’s bottom. Id. Allen proceeded

to Step Two on January 15, 2023, stating “no actions were taken to insure my safty

from this guard and alligations he worked 1-13-23 in WISO.”3 Id. On January 17,

2023, the grievance coordinator signed an acknowledgement of the grievance,

stating that it would be addressed by the Warden/Center Supervisor or designee by

February 14, 2023. Id. at 4. On January 27, 2023, Warden Ball responded,

informing Allen that his complaint had been forwarded to the PREA Compliance

Manager, and that he would be notified once the investigation was complete. Id. at

2 Allen submitted TU-23-00149 on February 27, 2023. Doc. No. 42-6 at 4. He

complained that Johnson denied him a drinking cup on February 21, 2023, that he was

underfed as a result. Id. He also complained that Johnson allowed him to sit in his cell

naked for 72 hours from January 1, 2023, to January 4, 2023. Id. The underfeeding

allegation was addressed in the response issued on March 24, 2023, and both the

underfeeding allegation and the allegation about Allen sitting naked in his cell in January

were addressed in the appeal response, which was dated April 24, 2023. Id. at 9.

3 Grievances are transcribed verbatim without any corrections for misspellings or

mistakes.

5. Allen’s appeal, dated January 30, 2023, was received on February 7, 2023. Id. at

5-7. He was informed that he would receive a response from the chief

deputy/deputy/assistant director by March 22, 2023. Id. at 7. The appeal response

was issued March 15, 2023, informing Allen that his allegations were determined to

be unfounded after completion of the internal affairs investigation. Id. at 8.

2. TU-23-00030.

Allen submitted TU-23-00030 on January 9, 2023. Doc. No. 42-5 at 3. He

stated,

On January 1, 2023, I was placed in restrictive housing cell 28 and

placed on behavior control by Lt. S. Brown at 10:08 pm. I had started

a fire. On “behavior control” I was put in a one man cell with no

property, no clothing, no mattress, no blanket to cover myself with.

Temperatures at night were below 40 degrees and the air vents fans

stayed on none stop for 2 days. More than a dozen guards looked at me

naked, I was humiliated. The light stayed lit non-stop and they never

dim them or turn them off. Behavior control is a violation of my right

to not be punished cruel and unusually by prison staff. . . . Warden

Ball, Deputy Warden Randall, Major Johnson and Lt. S. Brown are

responsible for my torture. Change policy regarding behavior control

72 hour policy for 72 hours.

Id. Warden Ball responded, describing the behavior control policy and finding the

grievance without merit. Id. at 5. Allen appealed, stating that he should have had a

blanket and underwear per policy, and that Brown, Hutchinson, Eason, and

Robertson (identified as “Sgt. Jodie Robinson”) were not properly trained in

behavior control policy and had violated his rights. Id. at 5-6. The appeal response

was issued on February 23, 2023, finding Allen’s grievance without merit. Id. at 8.

C. Exhaustion of Allen’s Claims

1. Sexual Assault/Harassment Claims Against Robertson & Corrective

Inaction Claims Against Ball, Brown, and Johnson.

The only grievance filed by Allen regarding Robertson’s alleged sexual

assault and harassment or the failure to take corrective action is TU-23-00027, in

which Allen alleged that Robertson sexually assaulted and harassed him on January

4, January 9, and January 10, 2023. Doc. No. 42-4. He names no other individuals

in this grievance or his appeal but generally complains that no corrective action was

taken when he proceeded to Step Two. Id. at 3. The Defendants argue that this

grievance does not serve to exhaust any of Allen’s claims because he did not

complete all steps of the grievance procedure before he initiated this lawsuit – rather,

the grievance was completed on the same day the lawsuit was received by the Court

and filed. Doc. No. 43 at 11-12.

While this timing presents a difficult question at first glance, the Court agrees

with Defendants that Allen was required to receive the appeal response before filing

suit. Allen’s original complaint was dated March 7, 2023, and post-marked March

13, 2023. Doc. No. 2 at 5 & 14. The Court received it for filing on March 15, 2023.

The appeal response to TU-23-00027 was issued the same day. Allen could not

have received the appeal response before he initiated this lawsuit, as was required to

exhaust available administrative remedies. See e.g., Kimery v. Payne, No. 4:20-CV-

00473-SWW-JJV, 2021 WL 2251621, at *2 (E.D. Ark. May 6, 2021), report and

recommendation adopted, No. 4:20CV00473-SWW-JJV, 2021 WL 2251448 (E.D.

Ark. June 2, 2021), aff’d, No. 21-2775, 2021 WL 6808451 (8th Cir. Dec. 1, 2021)

(“For Plaintiff to have fully exhausted his administrative remedies in connection

with these grievances, he would have had to receive a final decision before he filed

suit.”).

However, because Allen filed several amended complaints in this case after

he received the appeal response to TU-23-00027, the Court must also address recent

case law concerning which date controls when an amended complaint has been filed:

the date of the original complaint or the date of an operative amended complaint.

United States Magistrate Judge Joe J. Volpe recently explained the controlling law:

The PLRA says no action “shall be brought” until available

administrative remedies are exhausted. 42 U.S.C. § 1997e(a). In

Johnson v. Jones, 340 F.3d 624, 627 (8th Cir. 2003), the Eighth Circuit

said: “Under the plain language of section 1997e(a), an inmate must

exhaust administrative remedies before filing suit in federal court. ...

If exhaustion was not completed at the time of filing, dismissal is

mandatory.” (Emphasis in the original.) Based on the Johnson

language, this District has held that a prisoner must fully exhaust

administrative remedies before the complaint is filed and that an

amended complaint does not extend that deadline. See, e.g., Ashford v.

King, Case No. 4:21-cv-00522-KGB-JJV, 2022 WL 3904719, at *1

(E.D. Ark. Aug. 30, 2022); Dunahue v. Payne, Case No. 4:21-cv-

00959-JM-JJV, 2022 WL 2961878, at *3 (E.D. Ark. Jul. 5, 2022);

Mallory v. Bland, Case No. 4:20-cv-105-JM-BD, 2020 WL 3239993,

at *1 (E.D. Ark. Jun. 3, 2020); Tyler v. Kelley, Case No. 5:17-cv-00239-

JLH-JTK, 2018 WL 1528784, at *3 (E.D. Ark. Mar. 2, 2018); Nichols

v. Peppers-Davis, Case No. 5:14-cv-00157-KGB-BD, 2014 WL

7399207, at *2 (E.D. Ark. Dec. 17, 2014). But the Johnson holding is

not directly on point because there the question was whether exhaustion

had to be completed before the judge ruled on the issue; it did not

involve the question of whether the deadline is extended by the filing

of an amended complaint.

In Allen v. Amsterdam, 132 F.4th 1065, 1068 (8th Cir. 2025), which

was decided last month, the Eighth Circuit held that because the PLRA

does not say otherwise, the “typical rules governing amendments and

relation back in civil actions” apply. Although dealing with a different

section of Fed. R. Civ. P. 15 than applies to this case, the Court then

held that Rule 15 determines whether the date of the complaint or

amended complaint controls for exhaustion purposes. Id.

In this case, the relevant sections of Fed. R. Civ. P. 15 say:

(c)(1) An amendment to a pleading relates back to the date

of the original pleading when:

* * *

(B) the amendment asserts a claim or defense that arose

out of the conduct, transaction, or occurrence set out -- or

attempted to be set out -- in the original pleading;

* * *

(d) On motion and reasonable notice, the court may, on

just terms, permit a party to serve a supplemental pleading

setting out any transaction, occurrence, or event that

happened after the date of the pleading to be

supplemented. The court may permit supplementation

even though the original pleading is defective in stating a

claim or defense. The court may order that the opposing

party plead to the supplemental pleading within a specified

time.

(emphasis added). Thus, if the new complaint continues with claims

raised in the original complaint, then it relates back under Rule

15(c)(1)(B) to the date of the filing of the original complaint. In such

instances, exhaustion must be completed by the filing date of the

original complaint. In contrast, if the new complaint raises events that

occurred after the original complaint was filed, then it is technically a

“supplemental” complaint under Fed. R. Civ. P. 15(d), and it does not

relate back. Under those circumstances, exhaustion must be completed

by the filing date of the supplemental complaint, or “amended”

complaint as it is often called in pro se cases. See Holt v. Profiri, 4:22-

cv-01132-KGB-JJV (E.D. Ark. Mar. 10, 2025) (Doc. 133) (following

the Third, Sixth, and Ninth Circuits and finding that because the

amended complaint raised events that occurred after the original

complaint was filed, it was technically a supplemental complaint under

Fed. R. Civ. P. 15(d), and thus, the prisoner had until the date of the

supplemental complaint to complete exhaustion).

Koontz v. Payne, No. 2:24-CV-00054-DPM-JJV, 2025 WL 1539835, at *4–5 (E.D.

Ark. Apr. 25, 2025), report and recommendation adopted, No. 2:24-CV-54-DPM-

JJV, 2025 WL 1539823 (E.D. Ark. May 29, 2025) (footnotes omitted). See also,

Mattox v. Edelman, 851 F.3d 583, 595 (6th Cir. 2017) (“[T]he PLRA and Federal

Rule of Civil Procedure 15 permit a plaintiff to amend his complaint to add claims

that were exhausted after the commencement of the lawsuit, provided that the

plaintiff’s original complaint contained at least one fully exhausted claim.”).

Allen’s pending sexual harassment and failure-to-take-corrective-action

claims were first raised in his Second Amended Complaint dated May 25, 2023. See

Doc. Nos. 11-1 at 7 & 15 at 7. This is the operative complaint in this case. Allen’s

claims that Robertson sexually assaulted and harassed him in January 2023, and that

Ball, Brown, and Johnson failed to take corrective action, arose before Allen

initiated this lawsuit in March of 2023. The allegations also stem from the same

incident as that described in his original complaint – the conditions Allen

experienced while on behavior control beginning on January 1, 2023. See Doc. Nos.

2, 7 & 15. Accordingly, Allen’s Second Amended Complaint relates back to the

date of the original complaint,4 and Allen was required to exhaust all steps of the

grievance procedure before he filed this lawsuit. Because he signed and mailed his

original complaint before receiving the appeal response to TU-23-00027, this

grievance does not serve to exhaust Allen’s sexual assault/harassment claims against

Robertson or his corrective inaction claims against Ball, Brown, and Johnson.

2. Conditions-of-Confinement Claims Against Brown and Robertson.5

The undersigned recommends that Allen’s conditions-of-confinement claims

be dismissed for failure to state a claim, as previously explained. See discussion at

II, supra; Doc. No. 9. However, if that recommendation is not adopted, Allen’s

conditions-of-confinement claims against Brown may proceed. Brown does not

move for summary judgment as to this claim against Brown. See Doc. No. 42 at ¶ 3

4 As Judge Volpe noted:

There is an important distinction here. For pleading or content purpose, the

amended complaint supersedes and replaces the original complaint,

meaning only the claims and defendants mentioned in the amended

complaint may be considered. [Allen], 132 F.4th at 1068, In re Atlas Van

Lines, Inc., 209 F.3d 1064, 1067 (8th Cir. 2000). In contrast, in Allen, the

Court held Rule 15 controls whether the exhaustion must be completed by

the date of the complaint or amended/supplemental complaint.

Koontz v. Payne at *6 (emphasis in original).

5 Brown and Robertson are the only two defendants Allen names in connection with

this claim in his Second Amended Complaint. See Doc. No. 15 at 4.

(describing the claims in Allen’s Second Amended Complaint) & ¶¶ 4-6 (describing

those that should be dismissed for failure to exhaust administrative remedies).

Robertson does move for summary judgment on this claim. Id. at ¶ 6. Robertson

points out that he is not named in TU-23-0030, in which Allen grieved the conditions

he experienced on behavior control beginning January 1, 2023. Doc. No. 43 at 10;

Doc. No. 42-5 at 3. The Court notes that Allen named Robertson in his appeal. Id.

at 5. The ADC grievance policy instructs inmates not to list names on appeal not

identified in the initial grievance.6 Because there is no indication Allen’s complaint

about Robertson was investigated and addressed, his claim against Robertson based

on the conditions of confinement during his time on behavior control is not

exhausted and should be dismissed. See e.g., Winston v. Bland, No. 5:16-CV-00252-

KGB-PSH, 2018 WL 4441526, at *4 (E.D. Ark. Feb. 27, 2018), report and

recommendation adopted, No. 5:16-CV00252-KGB-PSH, 2018 WL 4440672 (E.D.

Ark. Sept. 17, 2018) (“Although Winston tried to incorporate Dr. Stukey into the

grievance by way of appeal, the deputy director did not evaluate any conduct of Dr.

Stukey, per policy, which prohibits inmates from raising additional issues and names

6 See Doc. No. 42-2 at 9 (providing that when proceeding to Step Two, “[a]ny new

issues added to the form will not be considered.”); & 12 (directing inmates to “not list

additional issues, requests, or names which were not part of the original grievance” in

their appeal). The appeal form also reminds prisoners to: “Keep in mind that you are

appealing the decision to the original grievance. Do not list additional issues which are

not part of your original grievance as they will not be addressed.” Doc. 42-2 at 5.

which were not part of the original grievance.”); Guinther v. Barker, No. 5:19-CV-

00110-BRW-PSH, 2020 WL 4983283, at *5 (E.D. Ark. Aug. 3, 2020), report and

recommendation adopted, No. 5:19-CV-00110-BRW-PSH, 2020 WL 5005417

(E.D. Ark. Aug. 24, 2020) (holding that Guinther’s complaint about being fired,

raised the first time on appeal, was not addressed in the appeal response, and

therefore not exhausted).

IV. Conclusion

For the reasons stated herein, the undersigned recommends that:

(1) Allen’s conditions-of-confinement claims be DISMISSED without

prejudice for failure to state a claim upon which relief may be granted;

(2) Alternatively, Defendants’ motion for partial summary judgment (Doc.

No. 42) should be GRANTED as to Robertson, and Allen’s conditions-of-

confinement claims against Robertson be dismissed without prejudice for failure to

exhaust available administrative remedies; and

(2) the remainder of Defendants’ motion for partial summary judgment

(Doc. No. 42) be GRANTED and Allen’s sexual assault/harassment claims and

failure-to-take corrective action claims against them be dismissed without prejudice

for failure to exhaust available administrative remedies.

DATED this 29" day of July, 2025.

UNITED STATES > >TRATE JUDGE