Jones v. Peterson et al

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
BRANDON M. JONES 	PLAINTIFF
v. 	Civil No. 6:23-cv-06116-SOH-MEF
REBEKAH PETERSON
(Correctional Officer, Omega Unit, ACC);
BENJAMIN MARTIN
(Lieutenant, Omega Unit, ACC);
JASON GARDNER (LPN, Wellpath);
LPN KELLY AUNSPAUGH
(Health Service Administrator, Wellpath) 	DEFENDANTS
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This is a civil rights action filed under 42 U.S.C. § 1983. Pursuant to the provisions of 28
U.S.C. §§ 636(b)(1) and (3), the Honorable Susan O. Hickey, Chief United States District Judge,
referred this case to the undersigned for the purpose of making a Report and Recommendation.
Currently before the Court is Defendant Aunspaugh’s Motion for Summary Judgment on the Issue
of Exhaustion. (ECF No. 24). Also before the Court is the issue Plaintiff’s failure to provide a
valid service address for Defendant Gardner.
I. 	BACKGROUND
Plaintiff filed his Complaint in the Eastern District of Arkansas on November 14, 2023.
(ECF No. 2). 	It was transferred to this District on November 15, 2023. 	(ECF No. 7). 	On
November 27, 2023, the Court entered an Order directing Plaintiff to submit an Amended
Complaint to correct deficiencies in his initial Complaint. (ECF No. 12). Plaintiff submitted an
Amended Complaint on December 20, 2023. (ECF No. 14). On December 21, 2023, the Court
entered a second Order directing Plaintiff to submit an Amended Complaint to correct continuing
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deficiencies. 	(ECF No. 16). 	Plaintiff submitted his Second Amended Complaint on January 5,
2024. (ECF No. 17).
In his Second Amended Complaint, Plaintiff alleges his constitutional rights were violated
while he was incarcerated in the Arkansas Community Correction (“ACC’) Omega Unit on
November 20, 2022. 	(ECF No. 17 at 4). 	Plaintiff alleges that Defendants knew Plaintiff had a
doctor’s order for a lower bunk because he had a bag and line running from his kidney out of his
back. (Id.). Despite this order, they forced him to use a top bunk. (Id. at 4-5). Plaintiff fell out
of the top bunk, ripping the port and line out of his kidney and back, and leaving him hanging
suspended from the top bunk. 	(Id. at 5). 	This resulted in his kidney becoming infected, and
ultimately requiring that it be removed. 	(Id.). 	Plaintiff proceeds against Defendants in their
individual capacity for this claim. 	(ECF No. 7).
For his second claim, Plaintiff refers to his allegations in Claim One, and states that he was
placed in “hazardous living conditions with serious physical medical needs in violation of a doctors
orders.” (ECF No. 17 at 6). He states that he exhausted his administrative remedies in grievances
OM-23-00028 and OM-23-00027. He names all Defendants for this claim and proceeds against
them in their individual capacity. (Id. at 6-7).
For his third claim, Plaintiff alleges Defendants caused him future injury by “refusing to
treat or get plaintiff treated.” (ECF No. 17 at 7-8). He alleges Defendant Gardner ordered Nurse
Young to “push the port hose back in, give him two Tylenol, and send him back to the barracks.”
(Id.). 	Plaintiff alleges he was denied medical care for weeks and suffered “excruciating pain.”
(Id.). 	Defendants Martin and Peterson continued to ignore the doctor’s order for a lower bunk.
(Id.). Plaintiff informed Defendant Aunspaugh that his bag was not draining properly, his urine
contained blood, and the bag leaked. 	(Id.). 	Plaintiff alleges she “turned a blind eye” to his
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complaints. (Id.). Plaintiff points to grievance OM-23-00027 where Defendant Aunspaugh stated
this his complaints were “not a medical issue.” (Id.). Plaintiff was then transferred to the Arkansas
Division of Correction (“ADC”), where it was determined that his kidney was infected. 	(Id.).
Plaintiff was sent to the hospital, where the kidney had to be removed. (Id.). Plaintiff proceeds
against Defendants in their individual capacity for this claim. (Id. at 8).
Plaintiff seeks compensatory, punitive, and other damages, including several injunctions.
(ECF No. 17 at 9).
To date, efforts to obtain service upon Defendant Gardner have been unsuccessful. 	On
May 21, 2024, the Court entered an Order directing Plaintiff to provide additional information to
identify and serve Defendant Gardner. (ECF No. 32). The deadline for Plaintiff to do so was June
11, 2024. (Id.). The Order advised Plaintiff that failure to provide the information would result in
Defendant Gardner being dismissed as a party in this case. (Id.). This Order was not returned as
undeliverable. Plaintiff did not submit a response.
Defendant Aunspaugh filed her Motion for Summary Judgement on the Issue of
Exhaustion on April 19, 2024. 	(ECF No. 24). 	On April 22, 2024, the Court entered an Order
directing Plaintiff to submit a Summary Judgment Response. (ECF No. 27). Plaintiff filed two
Responses on April 25 and May 6, 2024. (ECF Nos. 29, 30). Defendant Aunspaugh did not file
a Reply.
II. 	LEGAL STANDARD
Summary judgment is appropriate if, after viewing the facts and all reasonable inferences
in the light most favorable to the non-moving party, Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986), 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).
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“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.” 	National Bank of Commerce v. Dow Chemical 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.” National Bank, 165 F.3d at 607 (citing Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). “A case founded on speculation or suspicion is
insufficient to survive a motion for summary judgment.” Id. (citing Metge v. Baehler, 762 F.2d
621, 625 (8th Cir. 1985)). 	“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. 	ANALYSIS
A. 	Failure to Exhaust
Defendant Aunspaugh argues Plaintiff filed five grievances during the applicable period:
Grievances #OM-22-00514, #OM-23-00024, #OM-23-00027, #OM-23-00028 and #OM-23-
00033. (ECF No. 24 at 1). She argues he did not exhaust any of the five grievances. (Id. at 2).
At all times relevant to this case, Plaintiff is identified as an inmate of the Arkansas Division of
Correction. (ECF No. 26 at 2). Defendant Aunspaugh states, “[t]he grievance process applicable
to this matter is set forth at Department of Corrections, Administrative Directive 2019-34.” (Id. at
2). Review of that policy indicates it is for the Arkansas Division of Correction. (ECF No. 26-2).
The list of covered Units for the policy does not include the ACC Omega Center. (Id. at 27).
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Plaintiff argues that the grievance process for inmates in Arkansas Community Correction
(“ACC”) is not the same as those for inmates housed in the Arkansas Division of Correction
(“ADC”). (ECF No. 30). He further argues that he appealed OM-22-00514 to the Deputy Director,
and therefore, exhausted the administrative process for that grievance at a minimum. (Id. at 2).
He also argues that documents are missing from Defendant’s exhibits. (Id.). Plaintiff provides a
copy of a final response from the Deputy Director of Arkansas Community Correction for OM-
22-00514. (Id. at 9). This document clearly states: “**Note: Deputy Director’s Response is the
final appeal available.**” (Id.) (emphasis in original).
Taking Plaintiff’s allegations as true, material questions of fact remain as to whether
Plaintiff exhausted his administrative remedies for this claim. Defendant Aunspaugh has not met
her burden of proof, and summary judgment is not appropriate for failure to exhaust administrative
remedies.
B. 	Failure to Obtain Service Upon Defendant Gardner
This leaves the question of service to Defendant Gardner. 	It is the responsibility of the
Plaintiff to provide the Court with an address for proper service on the Defendants. 	See Lee v.
Armontrout, 991 F.2d 487, 489 (8th Cir. 1993). The Court has not been able to serve Defendant
Gardner with the information provided thus far. 	In the Order directing Plaintiff to provide
additional service information, he was advised that failure to do so would result in the dismissal
of Defendant Gardner as a party in this case. 	(ECF No. 32). 	Defendant Gardner should be
terminated as a party in this case because Plaintiff has failed to provide a valid address for service
of process.
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IV. 	CONCLUSION
Accordingly, it is recommended that Defendant Gardner be terminated as a Defendant in
this case. It is further recommended that Defendant Aunspaugh’s Motion for Summary Judgment
on the Issue of Exhaustion (ECF No. 24) be DENIED.
Referral Status: This case should remain referred for all matters not recommended for
dismissal in this Report and Recommendation.
The parties have fourteen (14) 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.
DATED this 7th day of November 2024.
/s/
Mark E. Ford
HON. MARK E. FORD
UNITED STATES MAGISTRATE JUDGE
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