McElroy v. Miners et al

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
JEREL McELROY, 	PLAINTIFF
v. 	Civil No. 4:24-CV-04102-SOH-CDC
WARDEN JOHN K. MINERS,
Southwest Arkansas Community Correction Center (“SWACCC”);
MAJOR VICKY WALKER, SWACCC;
LIEUTENANT SHARITA DEDMON; SWACCC;
JOHN AND JANE DOE EMPLOYEES OF THE SWACCC
MEDICAL DEPARTMENT;
DISCIPLINARY HEARING COMMITTEE (DHC); and
TINA HODGE (SOD) (Staff Over Discipline), 	DEFENDANTS.
MAGISTRATE’S REPORT AND RECOMMENDATION
Plaintiff Jerel McElroy1 filed the above-captioned civil rights action pursuant to 42 U.S.C.
§ 1983. 	Plaintiff proceeds pro se and in forma pauperis. 	See (ECF No. 7). 	Pursuant to the
provisions of 28 U.S.C. § 636(b)(1) and (3), the Honorable Susan O. Hickey, United States District
Court Judge, referred this case to the undersigned for the purpose of making a Report and
Recommendation on Defendants’ Motion for Summary Judgment for Failing to Exhaust
Administrative Remedies (“Summary Judgment Motion”). 	(ECF No. 28). 	Along with the
Summary Judgment Motion, Defendants filed a memorandum, (ECF No. 29), a statement of facts,
(ECF No. 30), and four (4) exhibits, see (ECF No. 28), in support. 	Plaintiff has filed a response
in opposition to Defendants’ Motion for Summary Judgment. (ECF No. 33). 	Defendants have
filed a reply. 	(ECF No. 34). 	This motion is therefore now ripe for the Court’s consideration.
1 Plaintiff was in custody at the Southwest Arkansas Community Correction Center (“SWACCC”)
during the events giving rise to his claims. 	(ECF No. 11). 	He is no longer incarcerated. 	See
(ECF No. 27).
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For the reasons outlined below, this Court recommends that Defendants’ Motion for Summary
Judgment be GRANTED.
BACKGROUND2
Because Plaintiff was a prisoner during the events giving rise to his claims and those claims
concern the conditions of his confinement, Plaintiff’s complaint was subject to preservice review
pursuant to 28 U.S.C. § 1915A(a). 	Upon that review, United States Magistrate Judge Barry
Bryant ordered Plaintiff to submit an amended complaint, noting technical problems with the
original complaint—namely, the original complaint was difficult to decipher. 	(ECF No. 3).
After submitting an amended complaint as directed, Plaintiff requested leave to further amend the
complaint. 	(ECF No. 9). 	That motion was granted. 	(ECF No. 10). 	Plaintiff subsequently
submitted the Second Amended Complaint (“SAC”), which remains the operative pleading in this
matter. 	(ECF No. 11).
The 	SAC 	asserts 	several, 	wide-ranging 	allegations 	against 	Southwest 	Arkansas
Community Corrections Center (“SWACCC”) officials. 	He claims that he was subject to
unconstitutional conditions of confinement, including mold and asbestos, that officials retaliated
against him by placing him in segregation without due process of law, that officials failed to
provide him with constitutionally adequate medical care for a UTI, and that he was not allowed
access to complaint or grievance forms. 	See (ECF No. 11). 	Upon preservice review of the SAC
pursuant to 28 U.S.C. § 1915A(a), this Court recommended that the following claims proceed:
1. 	Plaintiff’s official capacity claim against Defendant Minors for the purportedly
unconstitutional conditions of SWACCC, specifically Plaintiff’s exposure to black
mold, asbestos, and a bug infestation (claim one);
2 This section does not endeavor to describe every docket entry, only those relevant to the Court’s
consideration of the Defendants’ Motion for Summary Judgment.
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2. 	Plaintiff’s individual capacity claim against Defendant Walker for placing him on
“lockdown” on June 7, 2024, without due process of law (claim two);
3. 	Plaintiff’s individual capacity claim against Defendant Walker for retaliating
against him by placing him on “lockdown” on June 7, 2024 (claim two);
4. 	Plaintiff’s individual capacity claim against Defendant Dedmon for retaliating
against him by placing him on lockdown on August 24, 2024 (claim three);
5. 	Plaintiff’s individual capacity claim against Defendant Dedmon for placing him in
lockdown without due process of law on August 24, 2024 (claim three); and
6. 	Plaintiff’s claims against Defendant Hodge in her individual capacity for retaliating
against him by placing him in segregation on October 24, 2024, without due process
of law (claim six).
(ECF No. 12). 	This Court further recommended that all other claims be dismissed without
prejudice for failure to state a plausible claim for relief pursuant to 28 U.S.C. § 1915A(b)(1).3
Consistent with these recommendations, this Court then ordered service of the SAC on
Defendants Dedmon, Hodge, Miners, and Walker (“SWACCC Defendants”). 	(ECF No. 13).
The SWACCC Defendants filed their Answer, denying the allegations. 	(ECF No. 19). 	That
same day, this Court ordered the SWACCC Defendants to either file a motion for summary
judgment on the issue of whether Plaintiff properly exhausted his administrative remedies in
accordance with 42 U.S.C. § 1997e(a) before initiating this action by April 29, 2025, or promptly
file a notice stating that they did not intend to pursue failure to exhaust as an affirmative defense
at trial. 	(ECF No. 20). 	After requesting (and receiving) an extension of time to file a motion for
summary judgment, the SWACCC Defendants filed a Motion for Summary Judgment, including
a memorandum, statement of facts, and four exhibits in support, arguing that the undisputed record
3 Plaintiff timely objected to these recommendations. 	See (ECF No. 16). 	Those objections
remain pending.
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shows that Plaintiff failed to properly exhaust his administrative remedies with respect to any of
his claims before initiating this action. 	See (ECF No. 28-30). 	The SWACC Defendants’ exhibits
in support include a grievance form submitted by Plaintiff on August 22, 2024, that was rejected
and returned to him because Plaintiff did not first fill out a “complaint form.” 	(ECF No. 28-4).
This Court then ordered Plaintiff to respond to this motion and provided instructions on
how to respond. 	(ECF No. 31). 	Plaintiff filed his response in opposition to the SWACCC
Defendants’ Motion for Summary Judgment, evidently conceding that he did not exhaust his
administrative remedies but claiming that SWACCC officials thwarted his efforts to pursue the
SWACCC grievance procedure. 	See (ECF No. 33). 	Plaintiff’s response includes copies of
disciplinary reports, see, e.g., (ECF No. 33-3), and an “Arkansas Community Correction
Complaint Form for Residents,” dated November 4, 2024, see (ECF No. 33-2). 	The SWACCC
Defendants filed a reply to this response, reiterating their position that Plaintiff did not exhaust his
administrative remedies with respect to any of his claims and arguing that his contention that he
was prevented from pursuing his administrative remedies amounts to nothing more than
“conclusory statements and farfetched allegations.” 	(ECF No. 34).
LEGAL STANDARD
The Court “shall grant summary judgment if the movant 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). “A dispute is genuine if the evidence is such that it could cause a reasonable jury to
return a verdict for either party.” Ward v. Olson, 939 F. Supp. 2d 956, 961 (D. Minn. 2013) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). 	A fact is material only when its
resolution would affect the outcome of a case. Anderson, 477 U.S. at 248.
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Further, the moving party bears the initial burden of identifying “those portions of the
record which it believes demonstrate the absence of a genuine issue of material fact.” Jackson v.
United Parcel Serv., Inc., 643 F.3d 1081, 1085 (8th Cir. 2001). 	In response, the nonmoving party
“may not rest upon mere denials or allegations, but must instead set forth specific facts sufficient
to raise a genuine issue for trial.” Forrest v. Kraft Foods, Inc., 285 F.3d 688, 691 (8th Cir. 2002).
In considering a summary judgment motion, the court views all the evidence and inferences in the
light most favorable to the nonmoving party. Anderson, 477 U.S. at 255.
FACTS
A. 	Summary Judgment Record
The SWACCC Defendants’ Motion for Summary Judgment includes a sworn declaration
from Arundrell Chatman, (ECF No. 28-1); the Arkansas Community Correction (“ACC”) policy
on grievance procedures, (ECF No. 28-2); Plaintiff’s grievance history, (ECF No. 28-3); and an
ACC Grievance Form dated August 22, 2024, (ECF No. 28-4). 	Plaintiff’s response in opposition
does not dispute any of these facts. 	This Court, therefore, considers these facts undisputed for the
purposes of the SWACCC Defendants’ Motion for Summary Judgment.
For his part, Plaintiff’s response includes a self-styled 9-page unsworn “brief;” an excerpt
from his pleading, (ECF No. 33-1 at 2); portions of his disciplinary proceedings, (ECF No. 33-1
at 1, 3, 4-6; ECF No. 33-2 at 3; ECF No. 33-3); an ACC Complaint Form dated November 4, 2024,
(ECF No. 33-2); an ACC Grievance Form dated August 22, 2024, (ECF No. 33-4); ACC Resident
Request Forms, (ECF No. 33-5); the Arkansas Board of Corrections Grievance Procedure, (ECF
No. 33-5 at 3); and the Arkansas Board of Corrections Segregation Procedure, (ECF No. 33-5, at
4).
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Plaintiff’s “brief” is neither signed under penalty of perjury, nor notarized. 	See (ECF No.
33). 	This Court, therefore, views the brief as argument, not evidence. 	Further, Plaintiff’s
response includes the State of Arkansas, Board of Corrections: Grievance Procedures for
Offenders, (ECF No. 33-5), and the Administrative Regulation, State of Arkansas, Board of
Corrections: Segregation, id. at 4, but Plaintiff has not asserted any evidence suggesting that either
policy was in effect at the time of the events giving rise to his claims or that, even if they were in
effect, that they applied to his claims. 	The Court, therefore, concludes that this material is not
relevant. 	Finally, Plaintiff includes copies of his disciplinary proceedings. (ECF No. 33-1 at 1, 3,
4-6; ECF No. 33-2 at 3; ECF No. 33-3). 	To the extent that these documents are relevant to the
merits of Plaintiff’s claims, the sole issue before the court on summary judgment is whether
Plaintiff properly exhausted his administrative remedies before initiating this matter. 	Plaintiff’s
disciplinary records are therefore also not relevant to the issue currently before the Court.
That said, the Court will consider the verified SAC in determining whether any material
fact disputes preclude summary judgment. 	See Roberson v. Hayti Police Dept., 241 F.3d 992,
994-95 (8th Cir. 2001) (“A plaintiff’s verified complaint is the equivalent of an affidavit for
purposes of summary judgment . . . the facts alleged in a verified complaint need not be repeated
in a responsive affidavit in order to survive a summary judgment motion.”) (internal citations
omitted). 	And the Court also considers the ACC Complaint Form dated November 4, 2024, (ECF
No. 33-2), the ACC Grievance Form dated August 22, 2024, (ECF No. 33-4), and the ACC
Resident Request Forms, (ECF No. 33-5)—not for the truth of the matter asserted, but for the fact
that Plaintiff submitted those forms on those days.
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B. 	Undisputed Material Facts
Given this record, the following facts are undisputed: During the events giving rise to
Plaintiff’s claims, Administrative Directive 15-08 governed the SWACCC grievance and appeal
process. 	See (ECF No. 28-1). 	That process involves two steps (and four stages). 	Id. 	The first
step involves two stages: the informal complaint and the formal grievance. 	Id. 	After completing
step one, to exhaust the grievance procedure, the SWACCC resident must proceed to step two,
which involves an appeal to the center supervisor and then an appeal to the deputy director for
residential services. 	Id.
At step one, the SWACCC resident must submit an informal “Complaint Form for
Residents.” 	Id. 	If the problem is not resolved informally, or if the resident receives no response,
then the resident must submit a written formal grievance on a “Grievance Form for Residents”
within five days of the event giving rise to the grievance. 	Id. 	Unless the time is extended, the
grievance officer or designee must respond to the grievance within 30 days. 	Id. 	Upon receipt of
this response, the resident is entitled to appeal to the center supervisor. 	Id. 	Within five days of
receipt of the center supervisor’s decision, the resident is entitled to appeal to the deputy director.
Id. 	The deputy director’s decision is final and marks the conclusion of the grievance process. 	Id.
The “Complaint Form for Residents” and the “Grievance Form for Residents” are available from
the law library. 	See (ECF No. 28-2 at 3). 	Residents “may file grievances by dropping a
completed grievance form in the locked grievance boxes, which are located in accessible places
throughout the centers.” 	Id. at 2.
Plaintiff did not properly exhaust this process prior to filing the SAC on November 19,
2024. 	Id. 	On August 22, 2024, Plaintiff submitted an informal complaint on a grievance form,
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asserting that an SWACCC official (not named as a defendant to this action) gave him a grievance
form to fill out about his access to the news, and when he gave it back to her, she was disrespectful
and called him names. (ECF No. 28-4). This grievance form was returned to Plaintiff because he
had not first completed the first stage of step one by submitting a “complaint form.” 	See (ECF
No. 28-1); (ECF No. 28-4). 	On November 4, 2024, Plaintiff filled out a form entitled “Arkansas
Community Correction,” describing his concerns for his safety at the SWACCC. 	(ECF No. 33-2
at 1). 	But the section of the form for a response by staff is blank. 	Id. 	Thus, it is not clear if
Plaintiff submitted the form to staff for review.
ANALYSIS
Section 1997e(a) of the Prison Litigation Reform Act (PLRA) “requires a prisoner to
exhaust ‘such administrative remedies as are available’ before suing over prison conditions.”
Booth v. Churner, 532 U.S. 731, 733 (2001). 	This requirement is mandatory. See Chelette v.
Harris, 229 F.3d 684, 687 (8th Cir. 2000). 	But “[i]f an inmate fails to exhaust one or more
discrete claims raised in the § 1983 complaint, the PLRA requires only that the unexhausted claim
or claims be dismissed—it does not require that the complaint be dismissed in its entirety.” Abdul-
Muhammad v. Kempker, 486 F.3d 444, 446 (8th Cir. 2007) (citing Jones v. Bock, 549 U.S. 199
(2007)).
In determining whether the plaintiff has first exhausted his administrative remedies, courts
look to the prison’s grievance procedure. Id. 	“[T]he degree of specificity required in a prison
grievance ‘will vary from system to system and claim to claim, but it is the prison’s requirements,
and not that PLRA, that define the boundaries of proper exhaustion.’” Id. (quoting Jones, 549 U.S.
at 218)) (emphasis added). 	Thus, to satisfy Section 1997e(a)’s exhaustion requirement, inmates
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must file grievances in accordance with the institution’s policies and procedures. See Washington
v. Uner, 273 F. App’x 575, 577 (8th Cir. 2008) (citing Woodford v. Ngo, 548 U.S. 81, 91-92
(2006)).
The SWACCC Defendants assert, and Plaintiff does not dispute, that he failed to initiate,
let alone complete, the SWACCC grievance procedure with respect to any of his claims against
any of the Defendants. 	See (ECF No. 30); (ECF No. 33). 	It is therefore undisputed that Plaintiff
did not first exhaust his administrative remedies before initiating this lawsuit. 	But this finding
does not end the Court’s analysis. 	As the Supreme Court explained, “the PLRA contains ‘its own,
textual exception’” to the exhaustion requirement. 	Smith v. Andrews, 75 F.4th 805, 808 (8th Cir.
2023) (quoting Woodford v. Ngo, 548 U.S. 81, 85 (2006)). 	Specifically, “an inmate is required to
exhaust those, but only those grievance procedures that are available, i.e., capable of use to obtain
some relief for the action complained of.” 	Id. (cleaned up). 	To this end, the Supreme Court has
described three circumstances in which an administrative remedy may be unavailable: “(1) when
the procedure operates as a simple dead end; (2) when the administrative scheme is so opaque that
it becomes, practically speaking, incapable of use; and (3) when prison administrators deliberately
thwart prisoner attempts to use the process.” 	Id. (quoting Ross v. Blake, 578 U.S. 632, 643 (2016))
(internal quotations omitted).
In this case, Plaintiff repeatedly asserts in his verified SAC that SWACCC officials denied
him access to the grievance procedure by refusing to provide him with the appropriate form(s).
See, e.g., (ECF No. 11 at 7). 	He repeats those assertions in his unsworn brief. 	(ECF No. 33).
In reply, the SWACCC Defendants describe these assertions as “conclusory” and “farfetched.”
(ECF No. 34). 	On summary judgment, therefore, the court considers whether there is a material
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fact 	dispute 	about 	whether 	prison 	officials 	“thwarted” 	Plaintiff’s 	efforts 	to 	pursue 	his
administrative remedies (circumstance three), thus rendering those remedies “unavailable” to him.
See Smith, 75 F.4th at 809 (“Under the PLRA, only a plaintiff’s failure to exhaust an available
remedy can bar his claim.”) (emphasis in the original).
The SWACCC Defendants assert that the SWACCC grievance procedure is posted on
employee and resident bulletin boards throughout the facility and available at the facility library.
(ECF No. 28-1 at 3); see also (ECF No. 28-2 at 2). 	Moreover, the SWACCC grievance procedure
provides that the facility library provides the relevant “complaint” and “grievance” forms, (ECF
No. 28-2 at 3), and that residents file grievances by dropping a completed form in a locked
grievance box which are located in accessible places throughout the facility, id. at 2.
For his part, in response, Plaintiff asserts no specific facts suggesting that, contrary to
policy, the facility law library did not provide the relevant forms, or that he did not have access to
the library or to one of the locked grievance boxes during the relevant timeframe. 	See (ECF No.
11). 	To be sure, Plaintiff claims that he was placed in segregation on June 7, 2024, July 9, 2024,
and August 28, 2024, and that he was not provided access to complaint and grievance forms while
housed in segregation. See id. at 6. 	But he provides no facts detailing how his access to these
forms was denied. 	Put differently, he does not claim that he was not provided access to the facility
library while in segregation and thus unable to obtain the required forms. 	Further, the SWACCC
grievance policy provides that residents may submit a grievance within 5 days of the events giving
rise to the grievance, (ECF No. 28-2 at 3), and Plaintiff asserts no facts establishing a reasonable
inference that he was denied access to the facility library (and thus the appropriate forms) and to
the relevant “locked box” during that entire 5-day window. 	See Perry v. Precythe, 121 F.4th 711,
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715 (8th Cir. 2024) (concluding that prison grievance procedure was unavailable to plaintiff
because he was in a coma and thus unable to file a timely grievance and the prison grievance
procedure did not allow for late filings).
Instead, Plaintiff’s claim that officials prevented him from accessing the grievance
procedure relies exclusively on the assumption that he must depend on SWACCC officials to
obtain the appropriate forms and to initiate the grievance procedure.4 	See (ECF No. 11); (ECF
No. 33). 	But this assumption runs contrary to SWACCC policy and, as described in detail above,
Plaintiff fails to assert any facts establishing a genuine issue for trial whether that policy was
available to him or capable of use during the relevant timeframe. 	Accordingly, on this record,
Defendants’ Motion for Summary Judgment for Failure to Exhaust Administrative Remedies,
(ECF No. 28), should therefore be GRANTED, and this matter be DISMISSED WITHOUT
PREJUDICE.
CONCLUSION
In sum and for all the reasons outlined above, therefore, IT IS RECOMMENDED THAT
Defendants’ Motion for Summary Judgment for Failure to Exhaust Administrative Remedies,
(ECF No. 28), be GRANTED and this matter be DISMISSED WITHOUT PREJUDICE.
4 Plaintiff, for example, argues that he submitted grievances directly to an official named
Chapman, but Chapman did not respond to his grievances. 	See (ECF No. 33 at 3). 	This claim,
however, ignores the point that SWACCC policy requires him to file a grievance on the appropriate
form, which can be found in the facility law library, in one of the “locked” grievance boxes. 	See
(ECF No. 28-2). 	The fact that an official purportedly did not respond to Plaintiff’s grievance
when he did not follow the SWACC grievance procedure is not relevant to the question of whether
that procedure was “available” to him during the relevant timeframe. 	Because Plaintiff asserts no
facts suggesting that the SWACCC grievance procedure was not capable of use—either because
the grievance forms were not available at the facility law library or because he did not have access
to the law library or the “locked grievance box” within 5 days of the events giving rise to the
grievance—Defendants’ Motion for Summary Judgment should be granted.
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The parties have fourteen days from receipt of the Report and Recommendation in
which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely
objections may result in waiver of the right to appeal questions of fact. The parties are
reminded that objections must be both timely and specific to trigger de novo review by the
district court.
STATUS OF REFERRAL: No longer referred.
DATED this 20th day of October 2025.
/s/ Christy Comstock
CHRISTY COMSTOCK
UNITED STATES MAGISTRATE JUDGE
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