Harris v. Burns et al

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
ROGER D. HARRIS, JR. 	PLAINTIFF
v. 	Civil No. 	4:24-cv-04060-SOH-BAB
TRYSTAN BURNS; and SERGEANT
ROYCE BENNETT 	DEFENDANTS
REPORT AND RECOMMENDATION
Plaintiff, Roger D. Harris, Jr, currently an inmate of the Lafayette County Detention Center
(“LCDC”), filed this action pursuant to 42 U.S.C. § 1983. 	Plaintiff proceeds pro se and in forma
pauperis. 	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 Defendants Burns and Bennett’s Motion for Summary
Judgment on the limited issue of exhaustion. 	(ECF No. 13). 	Plaintiff responded. 	(ECF No. 17).
After consideration, the Court recommends the Defendants’ Motion be granted and Plaintiff’s
claims be dismissed.
I. 	BACKGROUND
Plaintiff filed his original Complaint and Motion for Leave to Proceed in forma pauperis
(“IFP Motion”) on June 4, 2024. 	(ECF Nos. 1, 2). 	The Court granted Plaintiff’s IFP Motion on
the same day. 	(ECF No. 3). 	Plaintiff filed an Amended Complaint on July 15, 2024. 	(ECF No.
7). 	At all times relevant to Plaintiff’s claims, he was a pretrial detainee in the LCDC in Lewisville,
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Arkansas. 	Plaintiff asserted four claims in his Amended Complaint against two Defendants.
(ECF No. 7). 	First, Plaintiff claims Defendant Burns, a jailer at the LCDC, used excessive force
against him on April 16, 2024 when she sprayed him with pepper spray for no reason. 	Id. at 4-5.
Then Plaintiff claims it took two weeks for him to see the doctor after the pepper spray injured his
eyes. 	Id. 	Plaintiff alleges the excessive force and denial of medical care against Defendant
Burns in both her individual and official capacities. 	Id. at 6.
Next, Plaintiff claims Defendant Burns and Bennett, a sergeant at the LCDC, failed to
protect him and denied him medical care from March 13, 2024 through April 17, 2024. 	Id. at 7.
Specifically, Plaintiff alleges a fellow inmate threatened him on March 13, 2024 and all jailers at
the LCDC were notified of this threat. 	Despite this knowledge, Defendant Burns let the other
inmate outside in the yard at the same time Plaintiff’s pod was in the yard on April 16, 2024—the
day she sprayed him with pepper spray. 	Id. at 8. 	Plaintiff was attacked by the other inmate on
April 16, 2024 in the yard. 	Id. 	Then, on an unknown date, Defendant Bennet allowed this same
inmate to come to church at the same time as Plaintiff, and Plaintiff was again attacked and denied
medical attention. 	Id. 	Finally, Plaintiff claims the other inmate was able to unlock doors and
come into Plaintiff’s pod. 	Plaintiff was afraid for his life at the LCDC. 	Id. 	Plaintiff also makes
his failure to protect claims against Defendants in their individual and official capacities. 	Id. at
9.
In their Motion, Defendants argue Plaintiff’s Amended Complaint should be dismissed
because he failed to exhaust his administrative remedies through the LCDC’s grievance procedures
before filing this lawsuit. 	(ECF No. 14). 	Specifically, Defendants assert, while Plaintiff filed a
grievance on the issues he claims in his Amended Complaint, he failed to appeal this grievance as
required by the LCDC Grievance Procedure. 	Id.
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Plaintiff filed thirteen grievances or requests from January 11, 2024 through August 29,
2024, but only one contains complaints or requests regarding the claims made in Plaintiff’s
Amended Complaint. 	(ECF No. 15-3). 	On April 22, 2024, Plaintiff filed a “Grievance Form”
stating:
On 4-16-24 tristen burns a jailer here in Lafayette county jail with no provocation
whatsoever sprayed me and several others with mace. 	We were only asking about last
chow being served to us because the meal they brought was burned. 	after 20 minutes or
so Tristen and a new jailer let us outside and about 10 minutes after that they led d pod out
with us knowing that I had an issue with Ramone we had already been separated…when d
pod came out I was jumped by these two inmates Ramone Anderson and Isaiah webb…
Thus well known as it had to be broken up by the jail staff as well as police officers…the
next day after I had already told Bennett or shall I say reminded him that they would try to
come down there with the be…he still allowed them to come and they jumped on me again
they figured out how to pick the lock on the door from d pod to c pod and tried to come
thru there and attack me but I was moved over here to a pod…now my blood pressure is
thru the roof and nobody wants to help me…instead I’ve been left to lie on the floor for
long period of time and chained to a concrete bench for hours so this seems to me like
punishment just because of a medical issue…
(ECF No. 15-3, p. 3) (errors in original).
Rami Cox reviewed Plaintiff’s Grievance on April 22, 2022 and responded to him on the
same day: “Those incidents are currently being investigated, and I am working with the Dr. to try
and get your blood pressure under control.” 	Id. at 3-4.
In her Affidavit, attached to Defendants’ Motion, Rami Cox testified she is the jail
administrator and records custodian at the LCDC. 	(ECF No. 15-1, p. 1-2). 	Ms. Cox also testified
she changed Plaintiff’s April 22, 2022 Grievance status to “resolved” when she responded, and
she also changed the “Offender Can Appeal” status to “Yes.” 	Id. 	Additionally, Ms. Cox testified
Plaintiff had the opportunity and ability to appeal his April 22, 2024 Grievance but failed to do so.
Id. 	Lastly, Ms. Cox testified in her Affidavit that the Grievance Procedure of the LCDC requires
an appeal to the Sherriff of Lafayette County. 	Id. 	The procedure reads in pertinent part:
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(ECF No. 15-4).
In his Response, Plaintiff does not dispute Defendants contention that he failed to appeal
his grievance or exhaust the LCDC Grievance Procedure. 	Instead, he states he is having trouble
getting his records from Rami Cox, the LCDC Jail Administrator and attached two grievances and
one page from Defendants’ Statement of Undisputed Facts. 	(ECF No. 17).
Plaintiff has not filed any additional response or documents with the Court. 	Plaintiff has
not communicated with the Court since filing his Response on November 25, 2024.
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
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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).
Under § 1983, a defendant may be sued in either his personal capacity, or in his official
capacity, or claims may be stated against a defendant in both his personal and his official
capacities. 	The type of conduct that is actionable and the type of defense available depend on
whether the claim is asserted against a defendant in his official or individual capacity. 	See
Gorman v. Bartch, 152 F.3d 907, 914 (8th Cir. 1998) (internal citations omitted). 	“Claims against
individuals in their official capacities are equivalent to claims against the entity for which they
work; they require proof that a policy or custom of the entity violated the plaintiff’s rights, and the
only type of immunity available is one belonging to the entity itself.” 	Id. 	Personal capacity
claims “are those which allege personal liability for individual actions by officials in the course of
their duties; these claims do not require proof of any policy and qualified immunity may be raised
as a defense” to these individual capacity claims. 	Id. 	To state a claim under 42 U.S.C. § 1983,
Plaintiff must allege that the defendant acted under color of state law, and that the actor violated a
right, privilege, or immunity secured by the Constitution. 	West v. Atkins, 487 U.S. 42, 48 (1988);
Dunham v. Wadley, 195 F.3d 1007, 1009 (8th Cir.1999).
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
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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 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).
Defendants have met this burden in their Motion and supporting documentation. 	The
parties here do not dispute the LCDC has a grievance procedure, nor that the LCDC Grievance
Procedure requires Plaintiff to appeal grievances to the Sheriff. 	(ECF Nos. 15-4; 17). 	Plaintiff
does not allege he filed any appeal of his April 22, 2024 grievance, nor does he allege he filed any
additional grievances regarding the issues he complains of in his Amended Complaint. 	(ECF No.
17).
Regarding Plaintiff’s argument he cannot get his records from the LCDC, the Court finds
this argument irrelevant to the issue currently before it. 	Discovery in this matter is currently
stayed. 	(ECF No. 12). 	Therefore, Plaintiff is not entitled to production of any documents from
the LCDC at this time. 	Furthermore, Plaintiff does not make any allegations there are missing
grievances or grievance appeals to the Sheriff, or that the summary judgment record created by the
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Defendants is deficient in anyway. 	Accordingly, production of his LCDC documents would not
change the Court’s consideration herein.
Accordingly, the Court finds Plaintiff failed to exhaust his administrative remedies
regarding all claims made against the Defendants in his Amended Complaint and recommends all
such claims be dismissed.
IV. 	CONCLUSION
For these reasons, it is recommended the Defendants’ Motion for Summary Judgment (ECF
No. 13) be GRANTED and all of Plaintiff’s claims asserted against the Defendants be dismissed
without prejudice.
REFERRAL STATUS: Referral should terminate.
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 27th day of March 2025.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE
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