The opinion
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
KENNETH GREGORY STEPHENS,
as Special Administrator for the Estate
of Joshua Allen Stephens PLAINTIFF
v. Civil No. 4:24-cv-04134-SGS
WARDEN JOHN MINERS;
DEPUTY WARDEN SHAUNDA SCOGGINS;
OFFICER CHATMAN; MAJOR VICKEY WALKER;
and TINA HODGE1 DEFENDANTS
ORDER
Joshua Allen Stephens originally filed this 42 U.S.C. § 1983 action and in forma pauperis
(“IFP”) application pro se on December 30, 2024. (ECF No. 1-2). This Court granted Joshua
Allen Stephens IFP status on the same day. (ECF No. 3). An Amended Complaint was filed on
January 30, 2025. (ECF No. 8). On May 22, 2025, a Suggestion of Death was filed by Defendants
stating Plaintiff died on March 30, 2025. (ECF No. 22). On July 28, 2025, Kenneth Gregory
Stephens, as Special Administrator for the Estate of Joshua Allen Stephens moved to substitute for
Joshua Allen Stephens as Plaintiff in this matter. (ECF No. 25). The Court granted such Motion
on September 5, 2025. (ECF No. 26). The case was then administratively stayed until Plaintiff
could secure representation. (ECF No. 40). Plaintiff did so and the case was reopened on March
31, 2026. (ECF No. 42). Currently before the Court is Defendants’ Motion for Summary
1 The Clerk is directed to amend Defendant Officer Chapman to Officer Arundrell Chatman as
spelled in his Declaration in support of the instant Motion for Summary Judgment. (ECF No. 29-
1). The Court will refer to the proper spelling offered in that Declaration herein.
Judgment on the sole issue of exhaustion. (ECF No. 29). Plaintiff responded. (ECF No. 45).
Defendants replied. (ECF No. 48). After consideration, the Court determines there is an issue of
fact as to whether Mr. Stephens properly exhausted his administrative remedies, or whether the
grievance procedure was available to him to exhaust. Accordingly, the Motion for Summary
Judgment based on a claim of failure to exhaust is DENIED.2
I. BACKGROUND
As the original plaintiff and substituted plaintiff in this matter have the same surname, the
Court will refer to Joshua Allen Stephens, the original pro se plaintiff, as “Mr. Stephens,” and Dr.
Kenneth Gregory Stephens, Special Administrator for the Estate of Joshua Allen Stephens and
father of the original plaintiff, as “Plaintiff.”
Mr. Stephens filed his original Complaint on December 30, 2024, using the Court approved
Section 1983 Complaint Form. (ECF No. 1). In this Original Complaint, Mr. Stephens swore the
facts alleged were true and correct under penalty of perjury pursuant to 18 U.S.C. § 1621. (ECF
No. 1). Mr. Stephens filed his Amended Complaint on January 30, 2025. (ECF No. 8). This
Amended Complaint included only some pages of the Court approved Section 1983 Complaint
Form along with additional pages of notebook paper which Mr. Stephens expounded upon his
claims and factual allegations against the Defendants. However, Mr. Stephens did not include the
signature page from the Complaint form or his original Complaint. Meaning, Mr. Stephens factual
statements in his Amended Complaint were not independently verified under penalty of perjury as
those in his original Complaint.3 (ECF No. 8). However, as Mr. Stephens proceeded pro se when
2 On April 22, 2025, the parties consented to have a Magistrate Judge 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. 21).
3 Plaintiff executed his Amended Complaint, but not under penalty of perjury. (ECF No. 8, p. 28).
filing both his Original Complaint and Amended Complaints, the Court will proceed by reading
the two complaints together for purposes of this Motion for Summary Judgment on the issue of
exhaustion. See Kirr v. North Dakota Public Health, 651 F.App’x 567 (8th Cir. 2016) (concluding
that pro se plaintiff’s original complaint and two amendments “should have been read together”
as constituting his complaint); Cooper v. Schriro, 189 F.3d 781, 783 (8th Cir. 1999) (per curiam)
(pro se complaint must be liberally construed and plaintiff clearly intended for amended complaint
to be read together with original complaint). Finally, most of the facts relevant to exhaustion that
were alleged in Mr. Stephen’s Amended Complaint, were also alleged in his Original Complaint.
(ECF Nos. 1, 8). Accordingly, the Court will consider Mr. Stephens’s Original and Amended
Complaints together. The Court will cite to both Complaints when appropriate.
In this Amended Complaint, Mr. Stephens named as Defendants: (1) John Miners, Warden
and Center Supervisor of the Southwest Arkansas Community Corrections Center (“SWACC”);
(2) Shaunda Scoggins, Deputy Warden of SWACC; (3) Mr. Chatman, Administrative Resource
Officer at SWACC; (4) Vicky Walker, Major at SWACC; and (5) Tina Hodge, Staff on Duty and
Therapeutic Community Services at SWACC. (ECF No. 8, pp. 2-3). Mr. Stephens asserts many
Eighth Amendment claims against all of the Defendants regarding his conditions of confinement
at SWACC including exposure to black mold, asbestos, pepper spray, a cockroach infestation,
improper strip searches, contaminated food sources, leaking roof, and lack of exercise and
showering in segregation. Additionally, Mr. Stephens alleges Fourteenth Amendment Due
Process violations regarding his discipline while housed at SWACC. Finally, Mr. Stephens alleged
First Amendment claims for retaliation and denial of the grievance procedure at SWACC. (ECF
No. 8). The Court finds it unnecessary for the purposes of the instant Motion to enumerate the
substance of all of Plaintiff’s voluminous claims in detail here. Instead, the Court will enumerate
those facts alleged and sworn by Plaintiff in his Complaints that are pertinent to the issue of
exhaustion pursuant to the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a).
First, in response to the prompt on the Section 1983 Complaint form regarding exhaustion
that Plaintiff used in filing both his Original and Amended Complaint, Plaintiff stated he did
attempt to exhaust his administrative remedies. Then he explained in detail:
I used the State grievance/complaint procedures to no avail. I received no response
back on any of the issues I am facing. This option was rendered unavailable
because officers constantly unwilling to provide any relief. The attempts of staff
to thwart me from taking advantage of the grievance process were blatant. I put
multiple grievances in the only box on the compound only to be told they had no
record of their submission. The idea all of my grievances were lost or vanished is
a direct misrepresentation of the facts . . .
(ECF Nos. 1, p. 1; 8, p. 1) (emphasis added).
In his Original Complaint, Mr. Stephens also states he suffered: “Retaliation for filing
complaints by administration and staff on a repetitive bases. Threats of physical abuse for
attempting to redress grievances by resource officer.” (ECF No. 1, p. 4) (emphasis added). Mr.
Stephens goes on to make specific allegations against Defendant Chatman for claiming he never
received the grievances Mr. Stephens filed, requiring Mr. Steven to refile complaints and
grievances, refusing to provide Mr. Stephens with grievance acknowledgement forms, and
intimidating Mr. Stephens. (ECF No. 1, p.5).
Then in asserting his claims against Defendant Chatman in his Amended Complaint, Mr.
Stephens claims a First Amendment violation through retaliation and specifically states:
I received unequal treatment and purposeful discrimination for my filing of
complaints & grievances. Chatman inhibited my ability to redress confinement
issues by blatantly ignoring my requests as well as falsely claiming he had no record
of a multitude of grievances; presumably using the paper-only system to his
advantage to claim there was no record of filing and that he did not receive them.
Chatman interfered with my constitutional right to address these issues by asking
me multiple times to keep filing these complaints & grievances to no avail –
attempting to “slow-walk” the process. When I reminded him of his job duties (to
provide me a grievance acknowledgement form within (5) five working days) he
began to threaten me with physical harm as well as frustrate & hinder my filing or
addressing grievances. He also intimidated me by claiming I had to fill these forms
out in his office, away from any witnesses who might help me. When I questioned
this, [Chatman] claimed this was the State’s Directive – which was another
egregious misrepresentation and intimidation tactic to thwart my efforts
continuously. Threats were doled out by Mr. [Chatman] in connection with my
inquiries about grievances I had filed, he had “lost” and I had refiled at his request.
This pattern persists, ultimately disabling my ability to exhaust my administrative
remedies . . . .
(ECF No. 8, pp. 5-6) (emphasis added).
Further, in his Original Complaint, Plaintiff attached a document titled “Arkansas
Community Correction COMPLAINT FORM FOR RESIDENTS.” (ECF No. 1, p. 9). This
document is dated December 4, 2024, signed by Mr. Stephens, and properly notarized. Id. In this
Complaint Form, Mr. Stephens states:
The Administrative Resource Officer, Mr. [Chatman], tries to harass & intimidate
residents into not getting complaint forms & especially Grievance Forms. Not only
that, there have been more than a few times (3 or 4) where important documents
including appeals, complaints & grievances have come up missing with no
explanation whatsoever.
By Mr. [Chatman’s] own admission he asked me to not put anything in the box &
give it to him in a hand-to-hand transaction to make sure he gets it. However, when
I attempted to do just this, he “shooed” me away with his hands & wouldn’t open
the door, as if he couldn’t be bothered one way or another. Ultimately, not being
able to hand a form or paper to him and-to-hand is NO EXCUSE for the apparent
loss of paperwork. Putting these forms in the ARO box should suffice just like
putting regular mail in the mailbox. The sender should be able to expect whatever
he puts in the box to be mailed, or if not, documented as to why & given the
whereabouts of his paper/mail. There is absolutely no justifiable excuse for the
spontaneous degeneration of these documents, especially with no explanation as to
why this is the case. I am not the only resident this has happened to & I probably
won’t be the last if this pattern of practice persists. The ARO is intended to be
helpful intermediary to assist residents and facilitate certain forms – NOT try &
find a way to withhold the forms from you. Upon asking for these forms (which
technically should be available in the Law Library & from any officer), one has to
explain their reasoning for needing a form, only for the ARO to weigh, in his
opinion, whether their reason merits giving them a complaint or grievance. It’s not
his job to dole these forms out based on his partial pinion of it qualifying as
grievable.
Id. (emphasis in original) (emphasis added) (errors in original).
In his Original Complaint, Mr. Stephens alleges Defendant Hodge retaliated against him
for filing “complaints & grievances on her.” (ECF No. 1, p. 6). In his Amended Complaint, Mr.
Stephens elaborated about his retaliation claim against Defendant Hodge, in pertinent part, Mr.
Stephens states:
. . . I have been harassed by her from this point forward due to the grievances I filed
on her (which I had to submit three separate times to prevent it from mysteriously
disappearing). I have been harassed by Mrs. Hodge with threats such as that she
will get my time in confinement extended. She has also promised to
administratively amend my eligible release (423) date. The unsubstantiated
stripping of my job, privileges and due process all arose from the complaints and
grievances I submitted on SOD Hodge. The incidents I’m referring to would have
never taken place except for a retaliatory motive due to exercising the grievance
process. Additionally, SOD Hodge and ARO [Chatman] colluded together to
collectively ignore my requests and complaints under the direction of SOD Hodge,
who was the ARO before Mr. [Chatman] . . . I put a complaint form on her. When
no response came, I submitted another complaint. After the second complaint SOD
Hodge placed me on restriction from all my earned privileges for an indeterminate
period. She also came up to the residential barracks in which I reside and verbally
commented about the complaints I lodged against her – stating that if I had a
problem I could drop a request to have an interview with her. This was a lie,
considering I had already done this. Because of these facts, I then filed a grievance
on SOD Hodge for unnecessary retaliation, due to my previous job with her not
panning out because of her false & dishonest assessment which as turned into the
cause for her stripping all of my privileges – without a hearing or an ability to rebut
or appeal her fallacious acts. Since I lodge a grievance on SOD Hodge, Def. Miners
received adequate notice of his subordinates actions . . . I received no grievance
acknowledgement or response from Warden Miners or Depurty Warden Scoggins .
. . [who knew] I was under the Constitutional risk . . . all with no recourse, given
the complete lack of response to institutional communication forms, i.e.,
Residential Requests to interview, Residential Complaint forms, and Residential
Grievance forms. Defendant Miners is the direct individual who is supposed to
receive and deal with the grievance forms. I waited for an acknowledgement to no
avail. I waited for a response from anybody and ultimately received nothing. After
two (2) months of waiting, I concluded I would not receive a response. . ..
(ECF No. 8, pp. 7 – 10) (emphasis added).
In his conditions of confinement claims against Defendants Miners and Walker, Mr.
Stephens states he made two “complaints regarding the safety conditions and was ignored.” (ECF
No. 8, p. 12). He also states his “complaints” about the conditions were “disregarded or generally
unresponded to.” (ECF No. 8, p. 13). Specifically, regarding his claim on the pepper spray against
Defendant Walker, Plaintiff stated: “I placed a complaint on the Major for this (paper complaint)
(no other remedy available) to which I received absolutely nothing back from.” (ECF No. 8, p.
19).
In Mr. Stephens Original Complaint, he alleges Defendant Scoggins and Miners “thwarted
me from taking advantage of the grievance process.” (ECF No. 1, p. 7). In his Amended
Complaint, Mr. Stephens claims Defendant Scoggins and Miners:
Removed all complaint and grievance forms from the Law Library against their
own facility’s directives. They also intentionally misrepresented to their staff the
ability to dole out these forms. Deputy Warden and Warden effectively thwarted
me from taking advantage of the grievance process . . . knowingly ignoring all my
complaints and grievances. Additionally, two complaints and one grievance were
filed by me about not being able to have a meaningful opportunity to exercise for
going on five (5) months . . . Lastly, all but a couple of complaints and grievances
have been identified as unseen. The other myriad complaints and grievances are
claimed to be lost or degenerated. With no database for these complaints, this
systemic violation will continue unless an injunction takes place.
(ECF No. 8, pp. 22-23) (emphasis added).
Finally, Mr. Stephens attached a letter to his Amended Complaint, on which his signature
is notarized. In this letter he states:
Also, complaints & grievances about this issue have been ignored.
. . .
However, residents are threatened & harassed by the grievance officers instead.
This practice is virtually disallowing residents to submit any complaints or
grievances in regards to policy, conditions, incidents, or actions related to their
confinement. The grievance officer regularly uses intimidation as a means to not
supply the proper documents needed to file complaints/grievance. Lastly, if one of
these forms does end up in the Resource Officer’s mailbox, many times it simply
disappears without cause or explanation. With no paper trail, it’s as if no one
addressed any issues at all.
. . .
The disappearance of complaint and grievance forms as well as the blatant
intimidation regarding the possession thereof is a consistent pattern of suppression
that will persist unless there is some direct form of intervention.
(ECF No. 8, pp. 24-26) (emphasis added).
In their Motion for Summary Judgment on the sole issue of exhaustion, Defendants argue
Mr. Stephens failed to exhaust any of his alleged claims as he failed to file any grievances while
at SWACC during the time at issue. (ECF No. 30, p. 5). Defendants support this argument with:
(1) Defendant Chatman’s Declaration (ECF No. 29-1); (2) the Arkansas Community of
Corrections Resident Grievance and Appeal Process (29-2); and (3) Mr. Stephens’s Inmate
Grievances Log (ECF No. 29-3).
In his Declaration, Defendant Chatman stated that he is employed by the Arkansas
Department of Corrections, Division of Community Correction (“DCC”) as the Administrative
Review Officer. (ECF No. 29-1, p. 1). His duties include screening complaints & grievances,
entering grievances into eOMIS, and acting as the liaison between the residents and grievance
appeals officials through the grievance process. Id. Defendant Chatman attached the relevant
Grievance Procedure in place at SWACC during the time at issue here to his Declaration, and he
represents it is a true and correct copy of such procedure. Id.
The DCC Resident Grievance and Appeal Process (hereinafter “Grievance Procedure”)
reads as follows:
B. Grievance Procedure in General
1. The resident grievance procedure is an administrative means for the resolution of
acts by ACC employees. Complaints pertaining to treatment sanctions or “learning
experiences” cannot be grieved. The grievance procedure is designed to
2. The grievance procedure must be posted on the employee and resident bulletin
boards, and in the facility law library. Residents and employees nmst be given
written notification of the grievance procedure upon arrival at the center.
3. Residents who have difficulty understanding the grievance procedure must be
informed to contact a designated staff member for further explanation and/or
assistance.
4. residents are entitled to use the grievance procedure regardless of their security
affecting the resident. This procedure must also be accessible to impaired,
handicapped, and non-English speaking residents.
5. Residents follow local procedures for submitting the informal “Complaint Form for
Residents.” Residents may file grievances by dropping a completed grievance
form in the locked grievance boxes, which are located in accessible places
throughout the centers.
6. In the case of an emergency grievance or a gnevance alleging sexual abuse, a
resident may give the grievance to any officer or employee of the center, who must
follow the procedures set forth in this policy. Residents are NOT required to use
the informal “Complaint Form for Residents” or have a preliminary discussion
with staff when filing an emergency grievance of a grievance alleging sexual
abuse.
7. Time limits for responding may be extended only in 5 business day mcrements to
extension prior to the expiration of the 30 calendar day time period in which the
Center Supervisor or Deputy Director of Residential Services must respond (see
5). Expiration of the time limit at any stage of the process may be considered
by the grievant to be a denial and this entitles the grievant to move to the next level
of the process, unless the grievant has received written notice of an extension.
Once a resident initiates the grievance process, processing of the grievance must
occur without interference or influence by administrators or any employee of the
center.
C. Routine Grievance Process
Routine grievances must be processed as follows:
1. Step One
a. resident must first attempt to infonmally resolve complaints, grievances,
problems, or incidents by submitting a “Complaint Form for Residents” or
discussing the matter with an appropriate person such as a counselor, the
on duty. Note: This step is NOT required for emergency grievances and
allegations of sexual abuse; refer to information below for these situations.
b. Ifthe problem has not been resolved informally of no response has been
received to the informal complaint, the resident may submit a formal written
gnevance within 5 days of the occurrence to the Grievance Officer or the
Center Supervisors Designee (Designee) on a “Grievance Form for Residents”
(see Form 2) Note: here is NO time limit for filing a grievance about sexual
abuse. At this point, the grievance becomes formal and all aspects of the
process must be followed.
ce. The law library must have these forms for resident use: “Complaint Form for
dad. The tesident may receive any assistance necessary in completing the
“Gnevance Form for Residents” without unreasonable delay, by contacting the
Grievance Officer or Designee.
e. Residents cannot file a gnevance on behalf of another resident (see the
exception for allegations of sexual abuse).
f£ The Grievance Officer or Designee must transmit a Grievance
Acknowledgement Form (obtained from e-OMIS) to the grievant within five
wotking days after receipt.
g Emergency situations:
(1) A grievant may declare an emergency situation if he/she believes that by
observing the regular time limits for processing he/she would be subject to
a substantial risk of personal injury or other serious and irreparable harm to
include a substantial risk of imminent sexual abuse.
(2) A grievant may indicate the existence of an emergency by marking the box
provided on the Grievance Form, and by filing the Grievance Form in the
usual manner or by personally delivering it to any officer or employee of
the center, who must sign the attached Emergency Receipt, give the receipt
to the resident, and deliver the Grievance Form without undue delay to the
Gnevance Officer or Designee, or in his/her absence, to the ighest center
authority present.
10
h. The Grievance Officer or Designee must withm 30 calendar days respond in
writing to the gnevant, unless the time period to respond has been extended.
i All written responses nmust imclude a well-reasoned response and an explanation
that the grievant 1s entitled to appeal and imstructions on how to appeal.
2. Step Two
a. Any grievance decision can be appealed to the Center Supervisor through the
normal chain of command. The grievant is entitled to appeal the Center
Supervisor's decision within 5 days after receipt of the Center Supervisor's
decision by using the Resident Appeal Form (see the back of Form 3).
b. Within 30 calendar days, the Deputy Director of Residential Services must
and the resident's appeal, and if necessary, conduct a separate investigation of
the matter and respond to the grievant in writing. The Deputy Director of
Residential Services must provide a copy of his‘her decision to the appropriate
c. The decision of the Deputy Director of Residential Services is final.
H. Records
1. Nature. The Gnevance Officer must maintain a log contaimng pertinent
information regarding the filing, acknowledgement, and disposition of grievances.
each grievance, which is to contam all pertinent information regarding the
tegarding the numbers, types, and dispositions. Such records must be preserved for
at least 3 years following final disposition of the gnevance.
2. Confidentiality. Records regarding the participation of an mdividual in the
grievance proceedings must not be available to residents and department personnel,
other than those directly involved in the gnevance process, unless the person's job
Tequires access to such records. Grievance records must be marked confidential
and will not be available to non-departmental personnel other than those allowed
by policy. Entries concerning the above must not be recorded in the resident’s
jacket. Records of testumony or evidence regarding a resident's participation ma
grievance proceeding must also be held confidential.
(ECF No. 29-2).
11
Also, the forms listed as available in the procedure are:
IV. FORMS
AD 15-08 Form 1 Complaint Form for Residents
AD 15-08 Form 2? Grievance Form for Residents
AD 15-08 Form 3 Center Supervisor's Decision, Resident's Appeal
AD 15-08 Form 4 Deputy Director's Decision
AD 15-08 Form 5 Resident Grievance Extension
Td.
Defendant Chatman also asserts in his Affidavit:
I have reviewed my grievance files regarding former inmate, Joshua Stephens.
Specifically, I have reviewed inmate Stephens’s grievance history from June 12,
2024, through the date this lawsuit was filed on December 30, 2024. During my
review of Stephens’s grievance history, I searched for any exhausted grievances
filed from June 12, 2024, through December 30, 2024, that pertained to Stephens’s
claims in the present lawsuit against myself, and DCC Defendants John Miners,
Shaunda Scoggins, Vicky Walker, and Tina Hodge.
During my review, I found that Mr. Stephens did not submit, appeal, or otherwise
exhaust any grievances while housed at the [SWACC], including emergency
grievances.
Ultimately, because Mr. Stephens did not file any grievances prior to filing this
lawsuit, he failed to exhaust his administrative remedies against the DCC
Defendants.
(ECF No. 29-1, pp. 3-4).
The Inmate Grievance Log Defendant Chatman attached to his Affidavit indicates that no
grievances filed by Plaintiff were found during his incarceration at SWACC. (ECF No. 29-3).
In Plaintiff?'s Response, he argues Mr. Stephens did in fact file multiple grievances on the
issues he alleges in his Complaints, and if those issues were not exhausted it was due to the
prevention of or interference with exhaustion by Defendants. (ECF No. 47). In support of these
arguments, Plaintiff submitted: (1) the Affidavit of Plaintiff (ECF No. 54-1); (2) a sworn
Complaint Form for Residents, Mr. Stephens sent to the Warden of SWACC (ECF No. 45-2);
(3) the Affidavit of Shou Carter, an employee of SWACC (ECF No. 45-3); and (4) the Affidavit
12
of former inmate Dallas Duncan, who was housed at SWACC at the same time as Mr. Stephens
(ECF No. 45-4).
In his Affidavit, Plaintiff states, in pertinent part:4 (1) Plaintiff is a retired lawyer and the
father of Mr. Stephens; (2) Mr. Stephens asked for Plaintiff’s advice, while Mr. Stephens was
incarcerated at SWACC, on how to prove he filed a complaint if Defendants were discarding all
of his filed complaints and refusing to give him copies; (3) Plaintiff advised Mr. Stephens to
demand a copy upon filing and then advised him to file a grievance for the Defendants discarding
complaints; (4) Plaintiff then advised Mr. Stephens to use the SWACC notary to notarize a
complaint form addressed to the Warden and have her make a copy for him. (ECF No. 45-1).
The notarized Complaint Form for Residents submitted by Plaintiff is the same document
4 The majority of Plaintiff’s Affidavit testimony is inadmissible hearsay and thus cannot
be considered by the Court on Defendants’ Motion for Summary Judgment. Defendants argue the
Affidavit is offered to dispute the fact Plaintiff failed to file any grievances and attempts to prove
this by offering statements made by Mr. Stephens to Plaintiff in phone conversations while Mr.
Stephens was incarcerated in SWACC. Plaintiff was never incarcerated in SWACC with Mr.
Stephens, so it is undisputed that Plaintiff has no first-hand knowledge of any events that took
place inside SWACC during Mr. Stephens’s incarceration.
Rule 56 states affidavits may be considered on summary judgment if the affidavits are:
“made on personal knowledge” and “set out facts that would be admissible in evidence . . . .” Fed.
R. Civ. P. 56(c). However, when an affidavit contains an out-of-court statement offered to prove
the truth of the statement that is inadmissible hearsay. Such a statement may not be used to support
or defeat a motion for summary judgment. Brooks v. Tri-Systems, Inc., 425 F.3d 1109, 1111 (8th
Cir. 2005). Plaintiff argues, however, that his statements in his Affidavit fall under the exception
in Federal Rule of Evidence 801 for questions. Plaintiff is correct that his Affidavit testimony
regarding what Mr. Stephens asked him is not hearsay because the question is not offered for its
truth, or because Mr. Stephens’s question was not intended as an assertion. See e.g., United States
v. Wilson, 665 825, 830 (8th Cir. 1981) (a corrections officer’s testimony about what questions
law enforcement asked an inmate were “not hearsay because the remarks were not offered to prove
the truth of the matter asserted”). However, Plaintiff’s Affidavit testimony recounting all of Mr.
Stephens statements regarding the attempts he made to file grievances and his belief that
Defendants thwarted those attempts is in fact hearsay as those statements are being offered for the
truth of the matter asserted. For this reason, the Court has only enumerated that testimony from
Plaintiff’s Affidavit which is considerable by the Court here.
attached to Mr. Stephens’s Original Complaint. (ECF Nos. 1, p. 9; 45-2). This Complaint Form
is attached to a Resident Request Form which is addressed to Defendant Miners from Mr.
Stephens. In this form, Mr. Stephens states:
I am attaching a complaint form to this request. My complaints and grievances
have disappeared multiple times with no explanation. I am now putting in a
complaint on the ARO for his actions. I am having to do it this way to prevent this
complaint from disappearing as well, as I have the right to believe it may. This is
my feeble attempt at documenting where this paper goes; otherwise, I have no
recourse. Thank you for understanding.
Id. The Resident Request Form is also signed by Mr. Stephens and notarized on December 11,
2024. Id.
The Affidavit of Mr. Carter concerns maintenance issues at the SWACC facility and does
not address the grievance procedures at SWACC. (ECF No. 45-3). Therefore, the Court does not
find it relevant for the current issue before it.
Dallas Duncan, an inmate incarcerated in the SWACC with Mr. Stephens, avers in his
Affidavit that he experienced similar problems with the SWACC Grievance Procedure as
complained of by Mr. Stephens in his Original and Amended Complaints. (ECF No. 45-4).
In their Reply, Defendants again argue Plaintiff has failed to produce any evidence that Mr.
Stephens exhausted the SWACC Grievance Procedure as required by the PLRA. In support of
this Reply, Defendants submit: (1) Defendant Chatman’s supplemental Declaration (ECF No. 48-
1); (2) Defendant Hodge’s Declaration (ECF No. 48-2); (3) Defendant Walker’s Declaration (ECF
No. 48-3); (4) Defendant Scoggins’s Declaration (ECF No. 48-4); (5) Defendant Miners’s
Declaration (ECF No. 48-5).
In his supplemental Declaration, Defendant Chatman testifies that the Inmate Grievance
Log for Mr. Stephens attached to Defendants Motion for Summary Judgment is a true and correct
copy of Mr. Stephens’s grievance history. Defendant Chatman explains that the history does not
account for informal complaints, but only formal grievances submitted on the “Grievance Form
for Residents.” Pursuant to the SWACC Grievance Procedures, if an inmate is not satisfied with
the outcome of an informal complaint, he may pursue the matter by filing a written formal
grievance. Defendant Chatman’s reference in his first Declaration was to these formal grievances.
Defendant Chatman further testifies that according to Mr. Stephens’s grievance history, he did not
submit, appeal, or exhaust any formal grievances while incarcerated at SWACC. Finally,
Defendant Chatman testifies that he did not engage in any actions to prevent Mr. Stephens from
participating in the SWACC Grievance Procedure. (ECF No. 48-1).
All of the other Defendants’ Declarations state the same exact relevant testimony: “I have
never engaged in any actions to prevent Joshua Stephens from participating in the grievance
procedure.” (ECF Nos. 48-2 – 48-5).
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 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).
III. 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). 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.” Id. 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 is the prison’s
requirements, and not the PLRA, that define the boundaries of proper exhaustion.” Id. Finally, in
the Eighth Circuit, exhaustion is an affirmative defense, and the defendant has the burden of
pleading and proving the failure to exhaust. See Nerness v. Johnson, 401 F.3d 874, 876 (8th Cir.
2005).
Here, the SWACC Grievance Procedure, included in the Background section above, is
undisputed. (ECF No. 29-2). Additionally, it is undisputed that an informal complaint on a
“Complaint Form for Residents” must first be filed by a SWACC inmate to resolve any issues.
Then, if the issue is not resolved informally, or no response is received on the informal complaint,
the SWACC resident must submit a formal written grievance on a “Grievance Form for Residents”
within five days of the occurrence to the Grievance Officer. Id. Finally, Defendants do not dispute
that Mr. Stephens filed informal complaints while incarcerated in SWACC.
The dispute arises in whether or not Mr. Stephens submitted any formal grievances in
compliance with this SWACC grievance procedure. Plaintiff asserts that Mr. Stephens filed
multiple formal grievances on the issues complained about in the Original and Amended
Complaints. In support of this contention, Plaintiff submits his own affidavit in which he testifies
Mr. Stephens sought Plaintiff’s legal advice on how to obtain a copy of complaints and grievances
filed when such copies were being denied (ECF No. 45-1), as well as a copy of the notarized
Complaint Form for Residents and Request Form completed by Mr. Stephens and sent to
Defendant Miners, (ECF No. 45-2). On the contrary, Defendants assert Mr. Stephens failed to file
a single formal grievance appropriately during his incarceration at SWACC. In support of this
contention, Defendants produced an empty Inmate Grievance Log, (ECF No. 29-3), purporting to
show Plaintiff did not file a single grievance during the time in issue, and Declarations from each
Defendant testifying they did not prevent Mr. Stephens from participating in the SWACC
Grievance Procedure, (ECF Nos. 48-1 – 48-5).
The Court does not find Plaintiff’s Affidavit sufficient to create an issue of fact as to
whether Mr. Stephens filed any formal grievances on the issues complained of in his Original and
Amended Complaints. Without considering Plaintiff’s hearsay statements, Plaintiff’s Affidavit
has not met proof with proof in the face of Defendants’ proffered Inmate Grievance Log and
Declarations. Furthermore, there is no exception known to the Court to allow hearsay statements
on summary judgment because one of the parties is deceased. Mays v. Rhodes, 255 F.3d 644 (8th
Cir. 2001) (declining to consider hearsay statements in affidavits of witnesses to the death of an
inmate offered on summary judgment).
However, the Court may consider Mr. Stephens’s verified statements made in his Original
Complaint for purposes of summary judgment. See, e.g., Roberson v. Hayti Police Dep’t. 241
F.3d 992, 994-95 (8th Cir. 2001). The Roberson Court explained: “[a]lthough a party may not
generally rest on his pleadings to create a fact issue sufficient to survive summary judgment, the
facts alleged in a verified complaint need not be repeated in a responsive affidavit to survive the
summary judgment motion.” Id. As enumerated in detail in the Background Section above,
Plaintiff states in his verified Original Complaint that he filed both “complaints and grievances”
and that Defendants thwarted his efforts to utilize the SWACC grievance procedure. Specifically,
the Court emphasized in the Background section each instance where Mr. Stephens alleges he filed
a “grievance.” Furthermore, the Court specifically considers Mr. Stephens verified statement in
both his Original and Amended Complaint stating he put multiple “grievances” in the only box on
the compound but was told no records of any such grievances could be found. (ECF Nos. 1, p. 1;
8, p. 1). Also, the Court considers Plaintiff’s notarized statement, attached to his verified Original
Complaint as a Complaint and Request Form sent to Defendant Miners: (1) “The Administrative
Resource Officer, Mr. [Chatman], tries to harass & intimidate residents into not getting complaint
forms & especially Grievance Forms;” and (2) “My complaints and grievances have disappeared
multiple times with no explanation.” (ECF No. 1, pp. 9, 11).
Here, Plaintiff’s version of events is not blatantly contradicted by the record. If Defendant
Chatman never accepted any of Mr. Stephens formal grievances, as alleged by Mr. Stephens, it
makes sense that Mr. Stephens’s Inmate Grievance Log would be empty. Here, this record simply
contains conflicting testimony. Cf. Scott v. Harris, 550 U.S. 372, 380 (2007). 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, it finds a genuine issue of material facts exists as to whether Mr.
Stephens filed formal grievances pursuant to the SWACC Grievance Procedure.
Moreover, the Court is unconvinced by Defendants’ argument in their Reply regarding the
difference in an informal complaint and a formal grievance at SWACC. As explained, the Court
finds there is an issue of fact as to whether Mr. Stephens attempted to file formal grievances during
the time in issue. It is also clear to the Court, from Mr. Stephens factual allegations in his Original
and Amended Complaints that he understood the distinction between an informal complaint and a
formal grievance pursuant to the SWACC Grievance Procedure. In his Amended Complaint,
Plaintiff references the different forms available for inmates by title including “Resident Requests
to interview,” “residential Complaint forms;” and “Residential Grievance Form,” (ECF No. 8, p.
9), and he specifically states that when his filed “complaints” against Defendant Hodge did not
produce a response, he filed a “grievance,” (ECF No. 8, p. 8). Additionally, Plaintiff references
“complaints and grievances” multiple times throughout both his Original and Amended
Complaints and used these terms in a way that is clear he was referring to two different types of
filings. (ECF No. 1, 8). Accordingly, the Court finds Mr. Stephens’s statements in his Original
and Amended Complaints also create an issue of fact as to whether Mr. Stephens filed both
informal complaints and formal grievances pursuant to the SWACC grievance procedure.
Additionally, while exhaustion pursuant to the PLRA is mandatory, Plaintiff is only
required to exhaust those administrative remedies which are “available” to him. See Ross v. Blake,
578 U.S. 632, 639 (2016). In Ross, the Supreme Court enumerated three instances where plaintiffs
are excused from exhaustion of administrative remedies as “unavailable” pursuant to the PLRA:
(1) when the procedure operates as a “dead end” because the officers are unable or unwilling to
provide relief to the inmate; (2) the grievance procedure is so opaque as to become “incapable of
use;” and (3) when prison officials prevent a prisoner from utilizing the procedure through
“machination, misrepresentation, or intimidation.” Id. at 643-44. Mr. Stephens specifically
alleges Defendant Chatman thwarted his efforts to exhaust his administrative remedies through
specific factual allegations, i.e. disposing of filed complaints and grievances without response,
intimidation, and retaliation for filing complaints and grievances. (ECF Nos. 1, 8). Again, the
Court recognizes the Defendants’ testimony in their Declarations that they did not prevent Mr.
Stephens from utilizing the SWACC grievance procedure. (ECF Nos. 48-1 – 48-5). However, at
this stage the Court cannot make credibility determinations between conflicting testimony on
summary judgment. See Reeves, 530 U.S. at 150. If Mr. Stephens verified statements in Original
Complaint and attachments are accepted as true, this would establish that the SWACC Grievance
Procedure was not available to Mr. Stephens. See Townsend v. Murphy, 898 F.3d 780, 783-4 (8th
Cir. 2018) (holding an officer misleading an inmate into believing he should not file a formal
grievance until receiving a response on his informal complaint, even though this was not the
process under the applicable grievance procedure, rendered the grievance procedure unavailable
to the inmate).
Accordingly, the Court finds there is a genuine issue of material fact as to whether the
grievance procedure at SWACC was available to Mr. Stephens and whether Mr. Stephens filed
any formal grievances pursuant to SWACC Grievance Procedure.5
IV. CONCLUSION
For these reasons, Defendants’ Motion for Summary Judgment (ECF No. 29) is DENIED.
Defendants may reassert the affirmative defense of exhaustion at trial if this matter survives
summary judgment on the merits.
IT IS SO ORDERED this 15th day of September 2026.
Spencer G. Singleton
/s/
HON. SPENCER G. SINGLETON
UNITED STATES MAGISTRATE JUDGE
5 As the Court finds there are issues of facts related the issue of exhaustion it need not reach
Plaintiff’s Perttu v. Richards, 605 U.S. 460 (2025) argument at this time. If the affirmative defense
of exhaustion is raised again at trial, the Plaintiff may reassert this argument.