Henson v. Cash et al

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
KOBIE JOE HENSON 	PLAINTIFF
v. 	Civil No. 6:23-cv-06002-SOH-MEF
SHERIFF MIKE CASH;
SERGEANT JOSH LINGO
(Jail Captain, Hot Spring County Jail);
DOCTOR ELKIN;
MARK E. SMITH 	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 a Motion for 	Summary Judgment for Failure to Exhaust
Administrative Remedies by Defendants Cash, Lingo and Smith. (ECF No. 80).
I. 	BACKGROUND
Plaintiff filed his Complaint in the Eastern District of Arkansas on December 19, 2023.
(ECF No. 1). It was transferred to this District on January 4, 2024. (ECF No. 5). Plaintiff filed
an Amended Complaint on February 9, 2024. 	(ECF No. 8). 	On February 10, 2024, the Court
entered an Order directing Plaintiff to submit a Second Amended Complaint to address
deficiencies in his Amended Complaint. 	(ECF No. 13). 	Due to several changes in Plaintiff’s
address, the Court entered a second Order directing Plaintiff to submit a Second Amended
Complaint on July 24, 2024. (ECF No. 33). Plaintiff did so on August 2, 2024. (ECF No. 34).
Plaintiff’s claim centers on his incarceration in the Hot Spring County Jail. (ECF No. 34).
He alleges that on November 17, 2022, he slipped and fell in the shower. (Id. a 4). As a result of
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the fall, he broke bones in his right hand and displaced metal hardware in that hand. (Id. at 4-6).
Plaintiff alleges he was given a bag of ice but was not taken to the hospital that day. (Id. at 5). He
alleges he was seen by Dr. Elkin the day after the accident, when Elkin arrived for his weekly visit
to the jail. (Id. at 5). Elkin cut off his explanation of the incident, telling him “there are only two
ways to fall in a shower.” (Id. at 6). When Plaintiff told him it did not matter how he had fallen,
Elkin told him he “didn’t have to talk to him like that” and walked off without any examination or
treatment of his hand. (Id.).
Plaintiff alleges he was taken to the emergency room nine days after the accident by Jailer
Mark Smith, who looked at his hand and stated, “this is ridiculous, I’m taking you to the hospital
emergency room.” (ECF No. 34 at 6). At the emergency room, x-rays confirmed a broken bone
and displaced metal hardware. A half-cast was placed on his hand and arm, a pain shot given, and
pain medication and surgery prescribed. 	(Id.). 	Plaintiff alleges that Defendants denied him
medical care, including the pain medication and surgery. 	(Id. at 4-6). 	Plaintiff alleges he was
taken back to Hot Spring County Jail on November 25, 2022. (Id. at 6). He placed a grievance
about the situation on or about November 28, 2022. (Id.). Hot Spring County Jail was then shut
down due to a shortage of staff, and he was transported to Sheridan City Jail for 30 days. (Id. at
6-7). His pain prescription was never filled, and his surgery was never scheduled. (Id.). In January
2023, he was transported to the CHI St. Vincent Orthopedic Center, where the cast was removed.
X-rays indicated the bone had healed, but surgery was still recommended to remove the metal
hardware because it was causing Plaintiff pain. (Id.). It appears Plaintiff was back in Hot Spring
County Jail at the time. The surgery appointment was never scheduled. (Id. at 7).
Plaintiff proceeds against all Defendants in their official and individual capacity. 	(ECF
No. 34 at 5). 	In support of his official capacity claim, he states “denial of medical care and
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deliberate indifference to serious medical needs.” (Id.). Plaintiff seeks compensatory, punitive,
and other damages. (Id. at 11).
On April 30, 2024, the Court entered a Bench Order notifying Defendants that if they
intended to raise the issue of administrative exhaustion, they must do so in a motion for summary
judgment filed no later than July 1, 2024. (ECF No. 76). The Order also directed Defendants to
file a Notice to the Court if they did not intend to pursue and exhaustion defense. (Id.). This Order
also stayed discovery until any exhaustion issues were resolved. (Id.). On May 6, 2024, Defendant
Elkin submitted his Notice stating that:
Plaintiff submitted grievances regarding the issues that form the basis of his
Complaint against Defendants and has exhausted his administrative remedies prior
to the filing of his Complaint. Accordingly, Separate Defendant will not pursue an
exhaustion motion.
(ECF No. 77).
On July 1, 2024, Defendants Cash, Lingo, and Smith submitted their Motion for Summary
Judgment on the Issue of Exhaustion. 	(ECF No. 80). 	They argue Plaintiff submitted multiple
grievances concerning the allegations in this case, but he did not submit appeals for any of them.
(Id. at 80, 81, 82). Thus, he failed to exhaust his administrative remedies as to this claim. (Id.).
On July 2, 2024, the Court entered an Order directing Plaintiff to submit his Summary
Judgment Response. (ECF No. 83). When the timing of a Notice of Address Change raised doubt
as to whether Plaintiff had received the first Order, the Court entered a second Order directing him
to Respond. (ECF No. 85).
Plaintiff timely filed his Summary Judgment Response on August 7, 2024. (ECF No. 86,
87). He states he tried to appeal but was unable to do so. (ECF No. 87 at 1). He alleges that while
he was in another facility, his grievances were faxed to Hot Spring County Jail, but he never
received a Response. 	(Id. at 1-2). 	He argues that he was told he could not appeal at least one
grievance because he had been seen by the doctor. (ECF No. 86). In particular, he refences his
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Exhibit 2, in which he argues the form clearly states that he cannot appeal the grievance. (ECF
Nos. 86 at 2; 87 at 1). The Court has reviewed Exhibit Two. The document is a Grievance and is
dated November 17, 2022. (ECF No. 87 at 3). The grievance details the incident. As Plaintiff
correctly points out, a section of the form states: “Offender Can Appeal: No.” (Id.). Handwriting
on the form is dated the next day and states, “Infirmity R hand Ring finger ER for evaluation.”
(Id.). He further states that if he can have access to discovery, he will be able to get the rest of his
grievance documents, including his attempts to appeal. (Id. at 1-2).
Defendants Cash, Lingo, and Smith did not submit a Reply to Plaintiff’s Response. The
time for them to do so has passed.
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).
“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
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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
Defendants Cash, Lingo, and Smith have failed to meet their burden of proof to show that
there is no genuine issue of material fact on the issue of administrative exhaustion. 	The Prison
Litigation Reform Act (“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).
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. “[T]o 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 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.
The Eighth Circuit Court of Appeals has recognized only two exceptions to the PLRA
exhaustion requirement: (1) when officials have prevented prisoners from utilizing the grievance
procedures, or (2) when the officials themselves fail to comply with the grievance procedures. See
Gibson v. Weber, 431 F.3d 339, 341 (8th Cir. 2005) (explaining a prisoner is only required to
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exhaust those administrative remedies that are “available” and any remedies that prison officials
prevent a prisoner from utilizing are not considered available).
Here, Plaintiff has provided objective evidence that he was prevented from appealing his
grievances on at least one occasion. He further argues that he was prevented from doing so for
multiple grievances related to his claims in this case. The Hot Spring County Jail grievance policy
attached as an Exhibit to Defendants’ Motion is silent as to the evidence Plaintiff placed before
the Court. (ECF No. 80-1 at 3-4). Nor have Defendants Cash, Lingo, and Smith submitted a Reply
to counter Plaintiff’s arguments and evidence. As such, they have failed to meet their burden of
proof to show that there is no genuine issue of material fact on the issue of administrative
exhaustion and summary judgment is not appropriate.
IV. 	CONCLUSION
For the reasons discussed above, it is recommended that the Motion for Summary
Judgment for Failure to Exhaust Administrative Remedies by Defendants Cash, Lingo and Smith
(ECF No. 80) be DENIED.
Referral Status: This case should remain referred for because no matters have been
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 13th day of November 2024.
/s/
Mark E. Ford
HON. MARK E. FORD
UNITED STATES MAGISTRATE JUDGE
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