J. THOMAS RAY, Magistrate Judge.
The following Recommended Disposition ("Recommendation") has been sent to United States District Judge Billy Roy Wilson. Any party may file written objections to this Recommendation. Objections must be specific and include the factual or legal basis for disagreeing with the Recommendation. An objection to a factual finding must specifically identify the finding of fact believed to be wrong and describe the evidence that supports that belief.
An original and one copy of the objections must be received by the Clerk of this Court within fourteen (14) days of this Recommendation. If no objections are filed, Judge Wilson can adopt this Recommendation without independently reviewing all of the evidence in the record. By not objecting, you may also waive any right to appeal questions of fact.
Plaintiff Dennis J. Cheatham ("Cheatham") is a prisoner in the Arkansas Department of Correction ("ADC"). In this pro se § 1983 action, Cheatham alleges that Defendants Captain Cheryle Johnson ("Johnson") and John Does, who are unknown members of a security response team and the warden of the Varner Unit, failed to protect him from being attacked by two other prisoners. Docs. 2, 6, & 24.
Johnson has filed a Motion for Summary Judgment, a Brief in Support, and a Statement of Undisputed Facts arguing that Cheatham failed to properly exhaust his administrative remedies as to the failure to protect claim asserted against her. Docs. 36, 37, & 38. Cheatham has filed two Responses and a Statement of Disputed Facts. Docs. 42, 43, & 44. Thus, the issues are properly joined and ready for disposition.
The Prison Litigation Reform Act ("PLRA") provides, in pertinent part, that: "No 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). The purposes of the exhaustion requirement include "allowing a prison to address complaints about the program it administers before being subjected to suit, reducing litigation to the extent complaints are satisfactorily resolved, and improving litigation that does occur by leading to the preparation of a useful record." Jones v. Bock, 549 U.S. 199, 219 (2007); see also Woodford v. Ngo, 548 U.S. 81-89-91 (2006).
The PLRA requires inmates to: (1) fully and properly exhaust their administrative remedies as to each claim in the complaint; and (2) complete the exhaustion process prior to filing an action in federal court. Johnson v. Jones, 340 F.3d 624, 627 (8th Cir. 2003); Graves v. Norris, 218 F.3d 884, 885 (8th Cir. 2000). Importantly, the Supreme Court has emphasized that "it is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion." Jones, 549 U.S. at 218; see also Woodford, 548 U.S. at 90 (explaining that administrative exhaustion "means using all steps that the agency holds out, and doing so properly so that the agency addresses the issues on the merits"). Thus, to satisfy the PLRA, a prisoner must fully and properly comply with the specific exhaustion requirements of the incarcerating facility.
To fully exhaust administrative remedies within the ADC, a prisoner must file: (1) an informal resolution with the designated problem solver; (2) a grievance with the Warden, if attempts at informal resolution are unsuccessful; and (3) an appeal of the denial of the grievance to the ADC Deputy/Assistant Director. Doc. 36, Exs. 1 & 2 (ADC Adm. Dir. 14-16 § IV(E) through (G)).
The parties agree that 16-553 is the only grievance Cheatham filed about the April 27, 2016 attack. Docs. 38 & 44. The issue in this case is whether Cheatham timely exhausted 16-553 through all three steps of the ADC's grievance procedure.
The undisputed facts relevant to that determination are as follows:
4. On Friday, May 13, 2016, Cheatham filed grievance 16-553 (step 2), renewing his allegation that unknown ADC officers and security personnel failed to protect him from the April 27, 2016 attack. Id.
5. On Monday, May 16, 2016, the Warden's office rejected grievance 16-553 on the procedural ground that it was untimely, and did not reach or decide the merits of the grievance. Id. The ADC Deputy Director subsequently affirmed that decision on appeal (step 3). Id.
Johnson argues that she is entitled to summary judgment because grievance 16-553 was properly rejected as untimely. Cheatham asserts in his Response that ADC officials prevented him from properly exhausting his administrative remedies by improperly finding that grievance 16-553 was untimely, and using that erroneous determination to reject the grievance on procedural grounds. See Ross v. Blake, 136 S.Ct. 1850, 1860 (2016) (explaining that administrative remedies are "unavailable" when prison administrators "thwart" inmates from properly using the grievance process); Porter v. Sturm, 781 F.3d 448, 452 (8th Cir. 2015) (holding that improper exhaustion is "excused" if prison officials "prevented prisoners from utilizing" the grievance procedure).
Section IV(E)(11) of the ADC's exhaustion policy provides that:
Doc. 36, Ex. 2 at 7-8 (emphasis added).
The parties agree that Cheatham filed his informal resolution on Tuesday, May 3, and that the designated problem solver's response was due three working days later on Friday, May 6. The parties also agree that Cheatham did not receive a response by that deadline. Thus, pursuant to Section IV(E)(11), Cheatham's grievance was due on Wednesday, May 11, which was six working days from the date he filed his informal resolution on Tuesday, May 3. Cheatham failed to meet that deadline and filed his grievance two days late, on Friday, May 13.
To avert his grievance being deemed untimely, Cheatham argues that he was not required to file his grievance on Wednesday, May 11 because Section IV(E)(11) states that an inmate "may" — not must — "proceed to Step 2, the formal grievance, without completion of Step 1." Doc 36, Ex. 3 at 7 (emphasis added). Unfortunately for Cheatham, his argument overlooks the following sentence of Section IV(E)(11), which clarifies that:
Id. (emphasis added). Read together, these two sentences make it clear that a prisoner must proceed to Step two within three working days of the deadline for receiving the problem solver's response to the informal resolution. See Martin v. Fayram, 849 F.3d 691, 696 (8th Cir. 2017) (explaining that: "Words or phrases that may seem ambiguous in isolation are often clarified by the remainder of the statutory scheme"); J.P. Morgan Chase Bank v. Johnson, 719 F.3d 1010, 1015 (8th Cir. 2013) (providing that courts should seek to "reconcile statutory provisions to make them consistent, harmonious, and sensible").
A further problem with Cheatham's interpretation of Section IV(E)(11) is that it would allow a prisoner to wait an indefinite amount of time for a response to his informal resolution before filing his grievance. Such a result would be contrary to the ADC's exhaustion policy, which is designed to expeditiously resolve inmate complaints. See J.P. Morgan Chase Bank, 719 F.3d at 1015 (explaining that courts should not "give statutes a literal interpretation if it leads to absurd consequences").
Finally, courts in this District have consistently construed Section IV(E)(11) as requiring a prisoner to file a grievance within three days of the deadline for receiving a response to the informal resolution. See, e.g, Green v. ADC, 5:15CV00351 PSH (E.D. Ark. March 10, 2017) (unpublished decision); Chew v. Huffman, Case No. 1:16CV00087 JTK (E.D. Ark. Nov. 10, 2016) (unpublished decision); Muhummad v. Evans, Case No. 5:13CV00361 DPM (E.D. Ark. April 23, 2015) (unpublished decision). Accordingly, Cheatham's interpretation of Section IV(E)(11) cannot save his grievance from being deemed untimely filed.
Cheatham also contends that he was prevented from timely filing his grievance because, in May of 2016, he was confined in administrative segregation and not "able to move about and submit his paper work normally as if [he] was in population." Doc. 44 at 2. Cheatham also alleges that the grievance officer only came to Administrative Segregation on Tuesdays and Thursdays to pick-up grievance forms. Id.
Cheatham has not offered any evidence to support this contention, which is clearly contrary to the ADC's rule that a grievance officer must collect grievance forms daily.
Finally and most importantly, Cheatham did not raise this argument in his appeal challenging the decision that his grievance was untimely. Instead, Cheatham argued that his grievance was due seven days (rather than six days) from the date he received his response to the informal resolution (and not three days from the date the response to the informal resolution was due). Doc. 36, Ex. 3. As previously explained, Cheatham's interpretation of Section IV(E)(11) is incorrect. See Jones, 549 U.S. at 219 (explaining that one of the purposes of the PLRA is to allow "a prison to address complaints about the program it administers before being subjected to suit").
For all of the above reasons, the Court concludes that ADC officials correctly rejected greivance 16-553 as being untimely filed. Because Cheatham did not properly exhaust his administrative remedies within the ADC's grievance procedure, he is precluded from bringing his failure to protect claim against Johnson in this § 1983 action.
As previously explained, grievance 16-553 is the only grievance Cheatham filed about the April 26, 2016 attack, and the alleged failure of Johnson and the Doe Defendants to protect from that attack. Because the Court has concluded that grievance 16-553 was properly found to be untimely, this means Cheatham also has failed to exhaust his administrative remedies as to the unnamed Doe Defendants.
Thus, the Court also recommends that Cheatham's failure to protect claim against the Doe Defendants be dismissed, without prejudice. See Angelo Iafrate Constr. LLC v. Potashnick Constr., Inc. 370 F.3d 715, 722 (8th Cir. 2004) (explaining that "if an answering party asserts a defense on the merits that equally applies to the other defendant, the success of the defense operates as a discharge to all the defendants"); Owens/Mitchell v. Burl, Case No. 4:14CV00126 DPM (E.D. Ark. May 7, 2014) (unpublished opinion) (holding, in a prisoner § 1983 action, that the "non-moving Defendants" were entitled dismissal based on a statute of limitations defense that was raised by other Defendants), aff'd without comment, 2014 WL 1820639 (8th Cir. Sept. 29, 2014) (unpublished decision).
IT IS THEREFORE RECOMMENDED THAT Johnson's Motion for Summary Judgment (Doc. 36) be GRANTED, and that Cheatham's failure to protect claim against all Defendants be DISMISSED, WITHOUT PREJUDICE.
