Love, Jr. v. Merchant et al

OCR transcription for search; preserved printed pages are authoritative

Case 4:23-cv-04038-SOH Document 22 Filed 01/18/24 Page 1 of 8 PagelD #:
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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS

TEXARKANA DIVISION
CHRISTOPHER LOVE, JR. PLAINTIFF
v. Civil No. 4:23-cv-04038-SOH-BAB
SERGEANT MERCHANT; and
CAPTAIN JAMES WISE DEFENDANTS

REPORT AND RECOMMENDATION

This is a civil rights action filed pro se by Plaintiff, Christopher Love, Jr., under 42 U.S.C.
§ 1983. Before the Court is a Partial Motion for Summary Judgment on the limited issue of
exhaustion filed by all Defendants. (ECF No. 14). Plaintiff filed a Response. (ECF No. 21).
Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3)(2011), 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.

I. BACKROUND

Plaintiff is currently incarcerated in the Arkansas Department of Corrections, Cummins
Unit. His claims in this action arise from his incarceration at the Hempstead County Detention
Center (““HCDC’”) in March 2023. Plaintiff filed his original Complaint and Motion for Leave to
Proceed in forma pauperis (“IFP Motion’) on April 7, 2023. (ECF Nos. 1, 2). The Court granted
Plaintiff's IFP Motion on the same date. (ECF No. 3). Plaintiff then filed an Amended Complaint
on April 17, 2023. (ECF No. 6).

In his Amended Complaint, Plaintiff names Sargent Merchant and Captain James Wise as

defendants in this matter. (ECF No. 6, pp. 3-4). Plaintiff claims these Defendants violated his

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO

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constitutional rights on March 12, 2023. Specifically, Plaintiff claims his Eighth Amendment right
to be free from cruel and unusual punishment and excessive force was violated, and he claims he
was denied medical care. Plaintiff was a convicted inmate at all times relevant here. (ECF No.
6).
The facts alleged by Plaintiff in his Complaint read:
I was in F Pod in Hempstead County Jail when Officer Zimmerman left my cell unlocked
do to me having seizures because I had no cell mate. Officer Adams came to F Pod and
seen my cell open and radio’d Sargent Merchant to come lock me in my cell. 	I tried to
explain to Sargent Merchant that I have seizures and my cell needed to remain unlocked
because I didn’t have a cellmate. 	He unholstered his CO2 pepperball gun from his side
and shot me in my throat 3 feet away. I told him that he was in front of my door and he
opened fire again raising his gun shooting me in my right eye. 	I was then placed in the
holding cell up front for 2 days without receiving any medical attention. 	Captain Wise
denied me any type of medical attention for the First two days. I have vision in my right
eye.
(ECF No. 6. pp. 4-5) (errors in original). Plaintiff also alleges an official capacity claim against
Defendants in which he states:
Hempstead County employees are trained to use the CO2 pepperball gun at 6 ½ - 7 feet
from [their] target. They are in violation of shooting me in the face and locking me in a
cell denying me any medical attention.
Id. at 6 (errors in original). Finally, when asked what relief he seeks, Plaintiff stated:
I am suing for 3 million dollars because I was shot at point blank range in my right eye
causing me to lose total vision. I also want sargent Merchant fired from this job. I believe
I am entitled to these damages because Sargent Merchant and Captain James Wise
demonstrated unproffessionalism, showing no concern for my well being. I lost vision in
my right eye and I possibly would still have some type of vision if I would have been taken
to the hospital as soon as the incident happened.
Id. at 9 (errors in original).
Defendants filed their Partial Motion for Summary Judgment for Failure to Exhaust
Administrative Remedies on July 3, 2023. (ECF No. 14). Defendants accompanied this Motion
with Exhibits, a Brief in Support, and a Statement of Indisputable Material Facts. (ECF Nos. 15,
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16). 	In these documents the Defendants argue, Plaintiff failed to exhaust his administrative
remedies as required by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a), as to
Defendant Wise only. Defendants present all grievances and complaints filed by Plaintiff between
March 3, 2023 and April 12, 2023.0F
1 Defendants note Plaintiff failed to name Defendant Wise in
his grievances on the issues included in his Amended Complaint. The HCDC grievance procedure
requires Plaintiff to specifically name all HCDC personnel involved in the complained of conduct.
(ECF No. 16-4, p. 1). Thus, Defendants argue, Plaintiff has failed to exhaust his administrative
remedies pursuant to the PLRA because he did not satisfy the HCDC grievance procedure. (ECF
No. 15).
In his Response to Defendants’ Partial Motion for Summary Judgment, Plaintiff does not
contest the fact he failed to name Defendant Wise in his grievances, or allege he was unable to
grieve the issues raised in his complaint against Defendant Wise. (ECF No. 21). Instead, Plaintiff
argues his substantive claim of excessive force against Defendant Merchant and then states: “Capt.
Wise is over the Jail and [responsible] for his Jailers.” (ECF No. 21).
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
1 The incident at issue (use of the pepper ball gun) occurred on March 12, 2023 and Plaintiff
signed his Amended Complaint on April 12, 2023. (ECF No. 6). Accordingly, any grievances or
complaints filed outside of this time-period are irrelevant to the Court’s considerations on
exhaustion here.
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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 parties do not dispute the HCDC has a grievance procedure, and that said grievance
procedure requires the Plaintiff to specifically name all HCDC employees involved in his
complained of conduct. The HCDC grievance procedure reads in pertinent part:
The grievance shall state fully the time, date[,] and names of those detention officers and/or
staff members involved, and pertinent details of the incident including the names of any
witnesses.
(ECF No. 16-4, p. 1).
The parties also do not dispute Plaintiff filed a grievance, against Defendant Merchant and
other non-party officers, regarding the use of excessive force and denial of medical care
complained of in his Amended Complaint. Said Grievance, Number 592, submitted on March 30,
2023 reads:
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Case 4:23-cv-04038-SOH Document 22 Filed 01/18/24 Page 5 of 8 PagelD #:

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a Pri
Grievance Pat!
Profile Photo ” : Offender Info oO ; ~ 7 -_ :
Inmate: Christopher Lave
Inntate PIN: 33642
Jumate Active/Inactive: A
Submitted Date: 2023-03-30 08:14:52
Submitted From Location/Room: Cc
Current Location/Room: Cc-
Facility: Hempstead County Ar - 8707771
Form Infa
Form: Grievance
Audit Photo Form ID: 592
Form State
Exhibit A2 - Requests and Grievances - Page 28
USCA8 54

Status: _ Resolved
Escalation Level: 0
Offender Can Appeal: ‘Yes
Assigned Te:

. Assigned Date:

Summary of Form:

Date of Occurance:
03122023

Individuals Involved:
Sargent MerchantOfficer Zimmermanand Officer Adams

Complaint:

J was in f pod and Sargent Merchant shot me in my neck around 3 feet away with the co2 pepperball gun when i tried to explain to him that i have seizures
and wasnt suppose to be locked down in my cell by myselfThen he opened fire again when i tried to enter my cell and he was in front of my cell and he
open fire again shooting me in ray right eye around three feet away! then hit the ground and he walked me to the front without any handcuffs on 1 feel that
what he did was wrong and something needs to be done about thislt was two days before i even got any medical attention after the incident fook placel
‘went to the hospital and had to be rushed to UAMS in little rock where the doctor said i should have came the same day and that i wouldnt be able to see
again out of my right eye the sameNow ive been having seizures on a regular basis and having headaches

Time of occurance:
1130-1200 pm

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(ECF No. 16-3, pp. 3-4). However, it is also undisputed Plaintiff failed to identify Defendant Wise
or state complaints against Defendant Wise in this, or any other, grievance submitted at the HCDC.
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) (held unconstitutional on other grounds). 	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 concluded that “exhaustion [as
required by the PLRA] is not per se inadequate simply because an individual later sued was not
named in the grievances.” 	Id. at 219. 	Instead, “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.
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In Burns v. Eaton, the Eighth Circuit applied Jones to the Arkansas Department of
Corrections’ (“ADC”) grievance procedure which, like the HCDC procedure, requires all persons
involved in the complained of action to be specifically identified. 752 F.3d 1136 (8th Cir. 2014).
The Burns court held, specific to the ADC grievance procedure, a grievance which does not name
a prison official who is later sued cannot satisfy the PLRA exhaustion requirement unless said
grievance prompted the ADC to decide the plaintiff’s complained of conduct against the unnamed
prison official on its merits. Id. at 1141. The Burns court ultimately held the plaintiff failed to
exhaust his administrative remedies pursuant to the grievance procedure of the ADC because the
plaintiff failed to name the offending officer in his grievance, and the merits of the plaintiff’s
complaint were not addressed by the ADC prior to the plaintiff filing his Section 1983 suit.
Accordingly, the Burns plaintiff failed to satisfy the PLRA exhaustion requirement, and his claim
was dismissed. Id. at 1142.
The issue presented here is analogous to Burns. Plaintiff did not comply with the HCDC
grievance procedure when he failed to name Defendant Wise in his grievance regarding his denial
of medical care claim. Therefore, the issue of whether Defendant Wise denied Plaintiff medical
care was not presented to the HCDC for administrative consideration on its merits, and Plaintiff
failed to exhaust his administrative remedies on his claims against Defendant Wise. See Jones,
549 U.S. 199, 218 (2007); see also Burns, 752 F.3d 1136, 1142 (8th Cir. 2014). Accordingly, the
Court finds there are no genuine issues of material fact regarding Plaintiff’s failure to satisfy the
PLRA exhaustion requirement regarding Defendant Wise, and the Court recommends Defendant
Wise be dismissed from this matter.
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IV. CONCLUSION
For the reasons stated above, I recommend Defendants’ Partial Motion for Summary
Judgment (ECF No. 14) be GRANTED and Defendant Wise be dismissed WITHOUT
PREJUDICE.1F
2 	Plaintiff’s individual and official capacity claims against Defendant Merchant
shall remain.
Referral Status: This case should remain referred for all matters not disposed of in
this Order.
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.
DATED this 18th day of January 2024.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE
2 	Claims that are dismissed for failure to exhaust administrative remedies should be
dismissed without prejudice. See Langford v. Norris, 614 F.3d 445, 457 (8th Cir. 2010).
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