Herndon v. Byers et al

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
JOHN ELWAIN HERNDON 	PLAINTIFF
v. 	Civil No. 6:23-CV-06140-SOH-BAB
WARDEN JARED BYERS,
Ouachita River Correctional Unit (ORCU);
LT. MONTGOMERY, ORCU; and
SGT. SUTTON, ORCU 	DEFENDANTS
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff John Elwain Herndon, a prisoner at the Ouachita River Correctional Unit
(“ORCU”), Arkansas Division of Correction (“ADC”), filed the above-captioned civil rights action
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 purposes of making a Report and Recommendation on Defendants’ Motion
for Summary Judgment. (ECF No. 19). Plaintiff has filed his Response in opposition to summary
judgment, (ECF No. 23), and Defendants’ have filed their Reply, (ECF No. 25). For the reasons
outlined below, this Court recommends that Defendants’ Motion for Summary Judgment be
GRANTED and that this matter therefore be DISMISSED.
BACKGROUND
The claims in this action were previously joined in Herndon v. Daniel, et al., Case No.
6:23-CV-06122-SOH-MEF (W.D. Ark. Nov. 27, 2023) (Herndon I). In that case, upon preservice
review of Plaintiff’s original complaint pursuant to 28 U.S.C. § 1915A(a), United States
Magistrate Judge Mark E. Ford concluded that the complaint contained claims that did not belong
in the same action. Herndon I (ECF No. 8). Thus, Judge Ford ordered those claims be severed
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from the complaint and that a new action be opened with respect to the severed claims pursuant to
Fed. R. Civ. P. 21. Id. The current action was opened in response to that Order. See (ECF No.
7). 	Upon initiating this action, this Court ordered Plaintiff to submit an amended complaint
asserting only the claims that had been severed from Herndon I. See (ECF No. 10).
Plaintiff subsequently filed an Amended Complaint asserting three grounds for relief.
(ECF No. 11). First, Plaintiff claims that on July 3, 2022, Defendant Montgomery took his shower
bucket and the shower bench extension legs from his cell. (ECF No. 10). Plaintiff is paraplegic
and says that without the shower bucket and extension legs, the shower bench is inoperable,
leaving him with no way to shower or eliminate his bowels. 	Id. 	After his shower bucket and
extension legs were removed from his cell, Plaintiff says he stopped eating and drinking because
he had diarrhea and could not clean himself, which ultimately led to his hospitalization. 	Id.
Plaintiff asserts a cause of action under the Fourteenth Amendment, claiming that Defendant
Montgomery took his personal property without just compensation and in violation of ADC policy.
Id. Plaintiff also claims that Defendant Montgomery violated the Eighth Amendment prohibition
on cruel and unusual punishment by depriving him of his prescribed shower bench. 	Finally,
Plaintiff asserts that he was discriminated against and subjected to intimidation and retaliation in
violation of Title II of the Americans with Disabilities Act (“ADA”). 	Id. 	Plaintiff identifies
Defendant Montgomery in his individual and official capacities.
Second, Plaintiff claims that in July 2022, Defendant Sutton stopped him as he was leaving
the cafeteria and took his self-made cardboard lapboard. Id. According to Plaintiff, because he
is paraplegic, he cannot use his hands to carry objects. Instead, he puts hot drinks and soups on
the lapboard so that they do not spill on his pants. Id. 	Plaintiff says that he has been using a
cardboard lapboard for this purpose for 8 years and used it before he was incarcerated. 	Id.
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Plaintiff also says that a picture of Albert Einstein was glued on one side of the lapboard and a
copy of the painting by Bottacelli of Madonna and Christ called “Madonna of the Magnificat”
was also glued to the lapboard. Id. Plaintiff says that this painting connected him to his religion,
was his personal daily connection to Christ, and was an important religious icon to him. Id.
Plaintiff says that when Defendant Sutton removed this lapboard from the towel that was covering
his suprapubic catheter, he threw it on the ground, and made Plaintiff leave it there. Id.
Plaintiff asserts a cause of action under the Fourteenth Amendment, claiming Defendant
Sutton took his personal property without just compensation and violated his right to freedom of
religion. Id. Plaintiff also claims that Defendant Sutton’s conduct violated the Religious Land
Use and Institutionalized Persons Act (“RLUIPA”). Id. Plaintiff identifies Defendant Sutton in
his individual and official capacities.
Finally, Plaintiff claims that Defendant Byers, the Warden of the ORCU, failed to
adequately address the fact that Defendant Montgomery took his shower bench. 	Id. 	Plaintiff
claims that Defendant Byer’s failure to adequately respond to the loss of his shower bench
demonstrates a deliberate indifference to his medical care. Id. 	Plaintiff also asserts a cause of
action for discrimination under the ADA, claiming that other inmates have not had their shower
benches taken from them. Plaintiff identifies Defendant Byers in his official and individual
capacities.
For relief, Plaintiff requests that his medically prescribed shower bench be replaced by
either the ADC or Wellpath. He further requests that his Bottocelli painting, “Madonna of the
Magnificat,” be replaced and that he be granted permission to carry it—glued to an 8 ½ x 11
cardboard on his lap in a folded towel. 	Finally, Plaintiff requests actual damages for pain and
suffering related to the loss of his shower bench. Id.
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Upon preservice review of Plaintiff’s Amended Complaint pursuant to 28 U.S.C.
§ 1915A(a), this Court recommended that the following claims proceed: (1) Plaintiff’s individual
capacity claims against Defendants Montgomery and Byers for interfering with his medical care
in violation of the Eighth Amendment as it relates to the removal of his shower bucket and the
shower bench extension legs; (2) Plaintiff’s claims under the ADA against Defendants
Montgomery, Byers, and Sutton; (3) Plaintiff’s individual capacity claim against Defendant
Sutton for confiscating his religious painting in violation of the First Amendment; and (4)
Plaintiff’s claim against Defendant Sutton for taking his religious painting in violation of
RLUIPA. (ECF No. 12). This Court then ordered service on the Defendants with respect to the
remaining claims. (ECF No. 13).
After the Defendants filed their Answer, this Court ordered the Defendants to either file a
motion for summary judgment on the issue of whether Plaintiff properly exhausted his claims
prior to initiating this action in accordance with 42 U.S.C. § 1997e(a), or promptly file a notice
informing the Court and parties that they did not intend to pursue exhaustion as an affirmative
defense at trial. 	(ECF No. 18). 	Defendants subsequently submitted a Motion for Summary
Judgment, including six exhibits, and a memorandum and statement of facts, in support. 	See
(ECF Nos. 19-21). Defendants’ Motion for Summary Judgment asserts that from July 3, 2022,
through November 27, 2023, Plaintiff submitted three grievances relevant to his claims—namely,
OR-23-00558, OR-23-00550, and OR-23-00625. (ECF No. 19-1, pp. 6-7). But Defendants assert
that none of these grievances properly exhausted the ADC’s grievance procedure. Id., pp. 7-10.
Plaintiff’s Response concedes that he failed to properly exhaust the ADC grievance
procedure with respect to OR-23-00550 and OR-23-00558. 	(ECF No. 23, pp. 4-5). 	He also
concedes that none of his grievances specifically reference Defendant Byers, contrary to the ADC
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grievance procedure. Id., p. 5. But Plaintiff challenges the Defendants’ assertion that he failed
to properly exhaust the ADC grievance procedure with respect to OR-23-00625. 	Id., pp. 2-4.
Plaintiff further claims that he submitted additional grievances, which are no longer in his
possession, concerning his claims, including, but perhaps not limited to, OR-23-00808. Id., pp.
5-6.
Given this Response, the Court ordered the Defendants to reply and to submit a copy of
grievance number OR-23-00808 along with any other grievance (regardless of subject matter)
that Plaintiff submitted from July 3, 2022 (the incident date identified in the Amended Complaint)
through January 4, 2024 (the date of the Amended Complaint), implicating Defendants
Montgomery and Sutton. (ECF No. 24). Defendants’ Reply asserts that Plaintiff submitted four
relevant grievances during this time frame (July 3, 2022, to January 4, 2024)—namely, OR-23-
00558, OR-23-00550, OR-23-00625, and OR-23-00808. (ECF No. 25). Defendants contend that
OR-23-00808 cannot be considered in determining whether Plaintiff properly exhausted his
administrative remedies because it was not submitted until after Plaintiff initiated Herndon I. The
Court primarily agrees with the Defendants.
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
The sole issue for the Court’s consideration is whether Plaintiff properly exhausted the
ADC grievance procedure prior to initiating this lawsuit in accordance with 42 U.S.C. § 1997e(a).
At summary judgment, “[a] party asserting that a fact cannot be or is genuinely disputed must
support the assertion” by citing to particular parts of materials in the record or by showing that the
materials cited do not establish the absence or presence of a genuine fact dispute. Fed. R. Civ. P.
56(c).
In this case, Plaintiff points to evidence in the record, specifically his grievances, to argue
that there is a material fact dispute regarding his exhaustion of the ADC grievance procedure. See
(ECF No. 23). 	Further, Plaintiff drafted his Response “pursuant to 28 U.S.C. § 1746” under
penalty of perjury. (ECF No. 23, p. 1). Accordingly, this Court considers Plaintiff’s Response,
together with the facts alleged in his verified Amended Complaint, see Roberson v. Hayti Police
Dept., 241 F.3d 992, 994 (8th Cir. 2001) (“a plaintiff’s verified complaint is the equivalent of an
affidavit for the purposes of summary judgment”), and the materials he identifies in the summary
judgment record to determine whether a material fact dispute precludes summary judgment.
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A. ADC Grievance Procedure
As a threshold matter, Plaintiff does not dispute the requirements of the ADC grievance
procedure as described by the Defendants. See (ECF No. 23). This Court, therefore, considers the
ADC grievance procedure undisputed. See Fed. R. Civ. P. 56(e)(2).
The ADC grievance procedure in effect at the time of the events giving rise to Plaintiff’s
claims—Administrative Directive 19-34—is a multi-step process. See (ECF No. 19-3). Step One
is the informal resolution procedure. (ECF No. 19-3, p. 6). Inmates are required to complete Unit
Level Grievance Form (Attachment I) within 15 days of the events giving rise to the grievance.
Id. On the form, inmates are directed to “write a brief statement that is specific as to the substance
of the issue or complaint to include the date, place, personnel involved or witnesses, and how the
policy or incident affected the inmate submitted the form.” Id. The grievance procedure provides
that “[o]nly one Unit Level Grievance Form (Attachment I) can be submitted per grievance and
only one problem/issue should be stated in the grievance, not multiple problems/issues.” Id., p. 5.
After completing the form, inmates should then present the form to “one of the individuals
whose name is posted in the housing unit as a designated Problem Solver. If a Problem Solver is
not available, any staff member holding the rank of sergeant or above can collect a Step One
grievance and shall then act as the Problem-Solver for that Step One grievance.” 	Id., pp. 6-7.
Upon receipt of the Unit Level Grievance Form (Attachment I), the Problem Solver will “meet
with the inmate within three working days to resolve the issue.” Id., p. 7.
As relevant here, [i]f the problem cannot be resolved at Step One, the informal level, the
Problem Solver must still document the resolution attempt on Attachment I, and then the inmate
and the Problem Solver must sign and date the form.” Id., p. 8. “At this time . . . [the inmate] may
now proceed to Step Two (the formal grievance) using the same form (Attachment I).” Id. At Step
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Two, the inmate “should complete the date beside ‘Step Two: Formal Grievance’ and the section
regarding resubmission (of this form) including an explanation why the inmate considers the
information resolution unsuccessful, and deposit it into the designated grievance box, or submit it
to a Staff Member if the inmate’s assignment prevents access to the grievance box.” 	Id., p. 9.
Upon receipt, the Grievance Officer “shall complete the box ‘for office use only’ on the Unit Level
Grievance form . . . [and] shall then transmit an Acknowledgement or Rejection of the Unit Level
Grievance Form (see Attachment II) to the inmate within five (5) working days after receipt.” Id.,
pp. 9-10. Pursuant to policy, “[e]very inmate grievant shall receive a written or electronic response
to his or her grievance within 20 working days of receipt.” Id., p. 11. “The response will be on
the form entitled Warden/Center Supervisor Decision (Attachment III) and signed by the Warden
or the Warden’s designee.” Id.
After receiving the response from the Warden, “if the inmate is not satisfied, he or she may
appeal to the appropriate Chief Deputy/Deputy/Assistant Director who will attempt to resolve the
matter or assign an appropriate staff member to do so.” Id., p. 12. The appeal must be filed within
five (5) working days from the date of the response. Id. The appeal, moreover, “must be written
in the space provided above the signature line on the original Warden/Center Supervisor’s
Decision Form (Attachment III) . . . [o]nly what is written in the space provided above the
signature line for appeal will be considered part of the grievance appeal.” Id., p. 12. The appeal
“must include the original (no photographs) Unit Level Grievance Form (Attachment I), which
describes the matter originally grieved, and either the Warden/Center Supervisor Decision Form
(Attachment III), the Health Services Response to Unit Level Grievance (Attachment IV), or the
Acknowledgement or Rejection of Unit Level Grievance (Attachment II) if the inmate is asserting
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the grievance was improperly rejected or if the inmate did not receive a response or extension
within the applicable timeframe.” Id.
To complete the appeal, moreover, “the inmate must state a reason for the appeal, and must
date, sign, and write the inmate’s ADC number on the attachment being appealed.” Id. “Receipt
of the appeal shall be acknowledged or rejected within five (5) working days . . . [and] [t]he Chief
Deputy/Deputy/Assistant Director will respond to the inmate concerning the decision within thirty
(30) working days unless there is an extension or the appeal is rejected and the inmate is notified
of the reason for rejection on the Acknowledgement of Grievance Appeal/Rejection of Appeal
form (see Attachment V).” Id., p. 13. At this point, a decision or rejection of an appeal is the end
of the grievance process. Id.
B. Plaintiff’s Grievances
Further, while the parties agree that none of Plaintiff’s grievances implicate Defendant
Byers, there is some disagreement between the parties about (1) the number of grievances Plaintiff
submitted regarding his claims and (2) whether those grievances satisfied the ADC grievance
procedure.
i. 	Defendant Byers
Pursuant to the ADC grievance procedure, “[a] grievance must specifically name each
individual involved in order that a proper investigation and response may be completed.” (ECF
No. 19-3, p. 5). Further, that policy provides that “[a]n inmate who fails to name all parties during
the grievance process may have his or her lawsuit or claim dismissed by the court or commission
for failure to exhaust against all parties.” Id.
Here, Defendants assert that from July 3, 2022, to November 27, 2023, Plaintiff failed to
properly exhaust any (medical or non-medical) grievance related to his claims in this lawsuit that
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specifically name or refer to Defendant Byers. See (ECF No. 19-1, p. 7); (ECF No. 19-2, p. 7).
Similarly, Defendants assert that during this timeframe, Plaintiff failed to properly exhaust any
medical grievance related to his claims that specifically mention or refer to Defendants Sutton and
Montgomery. See (ECF No. 19-2, p. 7).
For his part, Plaintiff concedes that he did not name Defendant Byers in any of his
grievances, contrary to ADC policy. (ECF No. 23). Accordingly, Plaintiff agrees with Defense
counsel that Defendant Byers should therefore be dismissed from this lawsuit because he failed to
properly exhaust his administrative remedies with respect to Defendant Byers before initiating this
lawsuit as required by law, see 42 U.S.C. § 1997e(a). Id., p. 5.
ii. 	The Number of Relevant Grievances
The Court now turns to facts in dispute, i.e. (1) the number of grievances Plaintiff submitted
regarding his claims and (2) whether those grievances properly exhausted the ADC grievance
procedure.
In their Motion for Summary Judgment, the Defendants assert that Plaintiff filed three
grievances between July 3, 2022 (the date of the events giving rise to Plaintiff’s claims as alleged
in the Amended Complaint) and November 27, 2023 (the date Plaintiff filed his original complaint
in Herndon I) that implicate Defendants Montgomery and Sutton—namely, OR-23-00558; OR-
23-00550; and OR-23-00625. See (ECF Nos. 19).1
1 Notably, although the Amended Complaint alleges that the events giving rise to Plaintiff’s claims
occurred on or about July 3, 2022, the record on summary judgment indicates that these events—
namely, the removal of Plaintiff’s shower bench extension legs and shower bucket from his cell
(claim one) and the taking of his cardboard lapboard (claim two)—occurred in July 2023. 	See
(ECF No. 19-4, p. 1); (ECF No. 19-6, p. 2). Plaintiff does not dispute this fact. See (ECF No. 23).
It is therefore undisputed that the relevant events took place in July 2023. Thus, in determining
whether Plaintiff properly exhausted his administrative remedies, Defendants considered the
grievances Plaintiff submitted from the year prior to the events themselves up until the filing of
Herndon I before concluding only three could possibly relate to his claims.
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In his Response, Plaintiff claims that “there may be other relevant grievances in [his]
grievance record appropriate to this case that [he doesn’t] have access to.” (ECF No. 23, p. 6).
Plaintiff specifically identifies OR-23-00808 as one such grievance. Id. He asserts that he lost his
copies of the grievances when he became ill and says that he has been unable to obtain copies of
his grievances from the ADC directly. 	Id. 	In light of this Response, the Court ordered the
Defendants to submit a reply and to include a copy of grievance OR-23-00808, along with all
grievances Plaintiff submitted between July 3, 2022, and January 4, 2024 (the date Plaintiff filed
his Amended Complaint) that implicate Defendants Montgomery and Sutton. (ECF No. 24). In
Reply, Defendants submitted grievance OR-23-00808, and assert that Plaintiff filed four
grievances from July 3, 2022, to January 4, 2024, the three discussed in the original Motion for
Summary Judgment—i.e., OR-23-00558; OR-23-00550; and OR-23-00625—and grievance OR-
23-00808 that refer to Defendants Sutton and Montgomery.2 (ECF No. 25).
iii. 	The Substance of the Grievances
The parties also dispute whether Plaintiff’s grievances satisfy the ADC grievance
procedure. As noted below, the dispute centers on two of those four grievances—grievances OR-
23-00625 and OR-23-00808.
a. 	Grievance OR-23-00558
Plaintiff initiated grievance OR-23-00558 on August 10, 2023. (ECF No. 19-4). In that
grievance, Plaintiff asserts that Defendant Montgomery retaliated against him by confiscating his
property, including a small cardboard lapboard and his medically prescribed shower bench
extension legs, because he had filed federal lawsuits against the ADC. Id., p. 1. The grievance
2 In their Reply, Defendants explain that the grievance OR-23-00808 was not included in their
initial submissions because he did not initiate the grievance until November 28, 2023, the day after
he filed his original complaint in Herndon I. (ECF No. 25). This argument is addressed below.
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does not reference Defendant Byers as a subject of the grievance. See id. On August 11, 2023,
Plaintiff proceeded to Step Two of the grievance procedure. Id. On August 24, 2023, the Warden
responded, finding the grievance without merit. Id., p. 3. Plaintiff did not appeal the Warden’s
response. Id.; (ECF No. 23, p. 4). Thus, as Plaintiff himself acknowledges, he failed to exhaust
his administrative remedies with respect to grievance OR-23-00558. See id.
b. 	Grievance OR-23-00550
Plaintiff initiated grievance OR-23-00550 on August 11, 2023. (ECF No. 19-5, p. 4). In
that grievance, Plaintiff asserts that Defendant Sutton confiscated the lap towel he uses to protect
his suprapubic catheter. 	Id. 	Plaintiff alleges that Defendant Sutton, along with Defendant
Montgomery, intentionally “badger” him. 	Id. 	The grievance does not mention or refer to
Defendant Byers. 	Id. 	Evidently, Plaintiff proceeded to Step Two of the grievance procedure
because on August 24, 2023, the Warden found his grievance to be without merit. Id. Plaintiff
appealed the Warden’s response, but the merits of Plaintiff’s grievance were not addressed because
Plaintiff failed to include the original Attachment I, in violation of policy. Id., p. 6.
Plaintiff agrees that he failed to include the original Attachment I with his appeal, contrary
to the ADC grievance policy. (ECF No. 23, p. 4). Further, he agrees that grievance OR-23-00550
did not properly exhaust the ADC grievance procedure. Id.
c. 	Grievance OR-23-00625
Plaintiff initiated grievance OR-23-00625 on August 27, 2023. (ECF No. 19-6, p. 4). The
grievance “revisits a shower bench incident that occurred 07-03-23 . . . in which ADC’s Lt.
Montgomery took the extension legs & commode bucket of my shower bench making it
inoperable. This has been addressed. What has not been addressed by this date is the replacement
of this critical piece of medical equipment by the ADC.” Id. At Step Two, the Warden determined
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that Plaintiff’s grievance was “without merit.” 	Id., p. 5. 	Plaintiff then appealed the Warden’s
decision, proceeding to Step Three of the ADC grievance procedure. Id. At Step Three, Plaintiff’s
appeal was not addressed on the grounds that Plaintiff violated policy by “altering the yellow copy
of [] Attachment I Grievance form” and the events giving rise to Plaintiff’s grievance occurred
more than fifteen days before the date of Plaintiff’s grievance. Id., p. 7.
Plaintiff agrees that grievance OR-23-00625 does not specifically mention or refer to
Defendant Byers as a subject of the grievance. 	(ECF No. 23, p. 5). 	But Plaintiff disputes that
grievance OR-23-00625 failed to comply with the ADC grievance procedure. 	Id., pp. 2-4.
Specifically, he asserts that he did not modify the grievance. Id., p. 3. Further, he contends that
while he submitted the grievance more than 15 days after the destruction of his shower bench, he
was grieving the fact that the issue (after 55+ days) had still not been resolved. Id.
d. 	Grievance OR-23-00808
Plaintiff initiated OR-23-00808 on November 28, 2023. 	(ECF No. 25-5, p. 7). 	In that
grievance, Plaintiff claims that Defendant Montgomery retaliated against him by ordering him to
remove his stocking cap. Id. Plaintiff asserts that Defendant Montgomery did not order any of
the other inmates to remove their stocking caps but targeted him because he filed a lawsuit against
Defendant Montgomery. 	Id. 	Plaintiff says that Defendant Sutton was also present during this
exchange. Id. Plaintiff proceeded to Step Two of the ADC grievance procedure. Id., p. 6. At
Step Two, the Warden concluded that the grievance did not meet the “specificity” required by the
ADC grievance procedure. Id. Plaintiff appealed. On appeal, it was determined that Plaintiff’s
appeal was without merit. Id., p. 5.
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ANALYSIS
At bottom, therefore, there are two central fact disputes: (1) whether Plaintiff submitted
additional grievances (beyond the four in the summary judgment record) that concern his claims;
and (2) whether grievance OR-23-00625 or grievance OR-23-00808 satisfies the ADC grievance
procedure with respect to his claims. For the reasons described below, however, these fact disputes
do not preclude summary judgment.
A. Plaintiff’s Grievances
Recall that Defendants contend that Plaintiff submitted four grievances implicating
Defendants Sutton and Montgomery from July 3, 2022, to January 4, 2024, but Plaintiff asserts
there “may” be more. (ECF No. 23, p. 6).
On summary judgment, the moving party bears the burden of bringing forward sufficient
admissible evidence to establish that there are no genuine issues of material fact and that the
movant is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). 	“A mere ‘scintilla of evidence’ is insufficient to defeat summary judgment, and if a
nonmoving party who has the burden of persuasion at trial does not sufficient evidence as to any
element of the cause of action, then summary judgment is appropriate.” Erickson v. Nationstar
Mortgage, LLC, 31 F.4th 1044, 1048 (8th Cir. 2022) (quoting Wagner v. Campbell, 779 F.3d 761,
766 (8th Cir. 2015)). Further, “if the movant has supported its motion for summary judgment, the
party opposing summary judgment ‘may not simply rest on the hope of discrediting the movant’s
evidence at trial.” Id. (quoting United States v. 3234 Washington Ave. N., 480 F.3d 841, 844 (8th
Cir. 2007)).
Here, Defendants have presented evidence showing that Plaintiff initiated four grievances
from July 3, 2022, to January 4, 2024, that are relevant to his claims. See (ECF No. 25). Plaintiff’s
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vague assertion that there may be additional grievances lacks the specificity required to establish
a genuine issue for trial, particularly where, as here, Plaintiff does not assert any facts that give
rise to a question about the accuracy of the Defendants’ method for identifying the relevant
grievances.
Put differently, the ADC grievance procedure in effect during the events giving rise to
Plaintiff’s claims requires inmates to specifically name the individuals involved. (ECF No. 19-3,
p. 5). 	Defendants reviewed Plaintiff’s medical and non-medical grievances from July 3, 2022,
through November 27, 2023, and located three non-medical grievances that refer to Defendants
Sutton and Montgomery. See (ECF No. 19-1, p. 7); (ECF No. 19-2, p. 7). When the timeframe
was extended to January 4, 2024, Defendants identified and submitted an additional non-medical
grievance. See (ECF No. 24). But Plaintiff does not assert any facts explaining why the search of
Plaintiff’s grievances for the Defendants’ names was underinclusive and would not have identified
properly exhausted grievances that are relevant to his claims. See (ECF No. 23).3 Thus, Plaintiff
has failed to assert specific facts showing a genuine issue of material fact regarding the number of
grievances relevant to his claims. See Christensen v. City of Sergeant Bluff, 521 F.Supp.3d 803,
807 (N.D. Iowa 2021) (“Evidence that only provides some metaphysical doubt as to the material
facts or evidence that is merely colorable or not significantly probative, does not make an issue of
material fact genuine.”) (internal citations omitted) (cleaned up).
3 Plaintiff’s Response appears to invite this Court to open discovery so that he can request his
grievances directly from the Defendants. See (ECF No. 23). As noted above, however, Plaintiff
has not demonstrated a genuine issue with how the Defendants identified the grievances relevant
to his claims. 	This Court, therefore, is not persuaded that opening discovery would somehow
uncover additional grievances that are relevant to Plaintiff’s claims that the Defendants have not
already submitted.
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On this record, therefore, this Court concludes that there is no genuine issue of material
fact that Plaintiff initiated four grievances from July 3, 2022, to January 4, 2024—namely, OR-
23-00558; OR-23-00550; OR-23-00625; and OR-23-00808—that are relevant to his claims.
Because Plaintiff agrees that two of those four—i.e., OR-23-0058 and OR-23-00550—did not
satisfy the ADC grievance procedure, the Court is left to consider whether a fact dispute
concerning OR-23-00625 and OR-23-00808 precludes summary judgment in this case. The Court
answers this question in the negative.
B. Grievances OR-23-00625 and OR-23-00808
There are two grievances remaining for the Court’s consideration: OR-23-00808 ad OR-
23-00625.
i. 	OR-23-00808
Starting with OR-23-00808, Defendants argue that this grievance fails to satisfy the
exhaustion requirement because Plaintiff did not initiate this grievance until after he filed Herndon
I. (ECF No. 25).
In Johnson v. Jones, 340 F.3d 624 (8th Cir. 2003), the Eighth Circuit held that “[u]nder the
plain language of section 1997e(a), an inmate must exhaust administrative remedies before filing
suit in federal court.” Id. at 627 (emphasis in the original). Thus, the Eighth Circuit explained,
“in considering motions to dismiss for failure to exhaust under section 1997e(a), the district court
must look to the time of filing, not the time the district court is rendering its decision, to determine
if exhaustion has occurred.” Id. Accordingly, the Court must determine when Plaintiff filed his
lawsuit.
Plaintiff completed the ADC grievance procedure with respect to grievance OR-23-00808
by December 18, 2023. (ECF No. 25-5, p. 5). Undoubtedly, therefore, Plaintiff would ask this
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Court to conclude that he filed this lawsuit when he submitted the Amended Complaint on January
4, 2024. But Johnson compels the Court to consider when he filed the lawsuit, not when he filed
the Amended Complaint. See Johnson, 340 F.3d at 628. Here, Plaintiff plainly commenced this
lawsuit by filing Herndon I on November 27, 2023. See Herndon I (Comp. (ECF No. 1)). While
this Court subsequently ordered that the claims in this action be severed from that case in
accordance with Fed. R. Civ. P. 21 and then ordered Plaintiff to submit an amended complaint
asserting only the present claims, these orders do not change the fact that Plaintiff commenced his
lawsuit on November 27, 2023, well before he exhausted the ADC grievance procedure with
respect to OR-23-00808. To conclude otherwise would be to ignore that “the language of section
1997e(a) clearly contemplates exhaustion prior to the commencement of the action as an
indispensable requirement, thus requiring an outright dismissal of such actions rather than issuing
continuances so that exhaustion may occur.” Johnson, 340 F.3d at 628 (emphasis in the original).
Construing that Plaintiff commenced this action as of the date of the Amended Complaint would
be tantamount to granting Plaintiff a continuance to exhaust his administrative remedies with
respect to his claims, contrary to the plain language of § 1997e(a) and Eighth Circuit precedent.
See Stockton v. WellPath, LLC, Case No. 4:24-CV-00680-KGB-ERE, 2025 WL 37034, at *1 (E.D.
Ark. Jan. 6, 2025) (listing cases); see also Pinder v. McDowell, Case No. 5:14-CV-359-JM-BD,
2018 WL 2225273, at *3 (E.D. Ark. Apr. 18, 2018) (“The failure to exhaust before filing a
complaint cannot be cured by exhausting an issue, and then filing an amended complaint.”), R&R
adopted by 2018 WL 2223328 (E.D. Ark. May 15, 2018). Accordingly, Plaintiff did not properly
exhaust the ADC grievance procedure by initiating grievance OR-23-06140 after he commenced
this action, but before he submitted his Amended Complaint.
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ii. 	OR-23-00625
This leaves grievance OR-23-00625. 	Defendants argue that Plaintiff did not follow the
ADC grievance procedure in initiating OR-23-00625 because (1) Plaintiff altered the yellow copy
of his Unit Level Grievance Form (Attachment I) and (2) Plaintiff commenced the grievance more
than 15 days after the incident giving rise to the grievance. See (ECF No. 20, pp. 12-13).
For his part, Plaintiff asserts, under penalty of perjury, that he did not alter the date on the
yellow copy of his Unit Level Grievance Form (Attachment I). (ECF No. 23). But even if there
is a fact dispute about whether Plaintiff altered the form, this fact dispute does not preclude
summary judgment because there is no material fact dispute that Plaintiff failed to initiate the
grievance process within 15-days of the date giving rise to the grievance, contrary to ADC policy.
Plaintiff initiated grievance OR-23-00625 on August 27, 2023. 	(ECF No. 19-6, p. 4).
Plaintiff describes the substance of the grievance as “revisit[ing] a shower bench incident that
occurred 07-03-23 . . . .” Id. 	The grievance explains that on that date, “ADC’s Lt. Montgomery
took the extension legs & commode bucket of my shower bench making it inoperable. This has
been addressed. 	What has not happened by this date is the replacement of this critical piece of
medical equipment by the ADC.” Id. August 27, 2023, is plainly more than 15 days from July 3,
2023, when Plaintiff asserts that Defendant Montgomery took his shower bench extension legs
and commode bucket without cause. But Plaintiff claims his grievance is not untimely because it
concerns the ADC’s failure to replace the shower bench extension legs and commode bucket,
which Plaintiff describes as an “unresolved” issue. See (ECF No. 23). This Court is not persuaded.
The ADC grievance procedure expressly states that “[t]he Unit Level Grievance Form
(Attachment I) [Step One] shall be completed and submitted within 15 days after the occurrence
of the incident.” 	(ECF No. 19-3, p. 6) (emphasis added). 	Here, the incident was the taking of
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Plaintiff’s shower bench extension legs and commode bucket, leaving him with no such equipment
and requiring him to borrow similar equipment from other inmates. 	(ECF No. 11, pp. 4-5).4
Pursuant to ADC policy, therefore, Plaintiff had 15 days from the date that these items were
removed from his cell to initiate a grievance that they had not been returned or replaced. 	It is
undisputed that Plaintiff did not do so. Plaintiff’s grievance OR-23-00625, which was submitted
more than 55 days after the July 3, 2023, incident, was therefore untimely under ADC policy.
Plaintiff, therefore, failed to properly exhaust the ADC grievance procedure prior to initiating this
lawsuit in accordance with 42 U.S.C. § 1997e(a).
C. “As are available”
One final matter requires some discussion: As the Supreme Court has 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).
The 	Supreme 	Court 	has 	recognized 	“three 	kinds 	of 	circumstances 	in 	which 	an
administrative remedy, although officially on the books, is not capable of use to obtain relief.”
Ross v. Blake, 578 U.S. 632, 643 (2016). First, “an administrative procedure is unavailable when
(despite what regulations or guidance materials may promise) it operates as a simple dead end –
with officers unable or consistently unwilling to provide any relief to aggrieved inmates.” 	Id.
Second, “an administrative scheme might be so opaque that it becomes, practically speaking,
incapable of use.” 	Id. 	Finally, an administrative procedure is unavailable “when prison
4 Plaintiff, furthermore, asserts in his verified Amended Complaint that he was told twenty minutes
after the items were removed from his cell that they had been thrown away. (ECF No. 11, p. 5).
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administrators thwart inmates from taking advantage of a grievance process through machination,
misrepresentation, or intimidation.” Id. at 644.
In this case, Plaintiff asserts no evidence suggesting that the ADC grievance procedure was
unavailable to him. While Plaintiff says that he was in the hospital for some time following the
taking of his shower bench extension legs and commode bucket, he asserts no facts suggesting that
his hospitalization prevented him from initiating a grievance within the required 15-day timeframe.
See Smith v. Andrews, 75 F.4th 805, 809 (8th Cir. 2023) (citing Rucker v. Giffen, 997 F.3d 88, 94
(2d Cir. 2021) (concluding that the grievance procedure was incapable of use because plaintiff was
hospitalized during the timeframe required to file a timely grievance)). Further, Plaintiff asserts
no facts suggesting that prison officials prevented him from initiating a timely grievance or that
the grievance procedure itself simply operates as a “dead end” and is thus incapable of providing
any relief. 	Accordingly, the Court finds that the ADC grievance procedure was available to
Plaintiff, he simply did not avail himself to it. On this record, therefore, this Court recommends
that Defendants’ Motion for Summary Judgment be granted.
CONCLUSION
In sum, this Court recommends that Defendants’ Motion for Summary Judgment, (ECF
No. 19), be GRANTED, that Plaintiff’s claims be DISMISSED WITHOUT PREJUDICE for
failure to first exhaust administrative remedies in accordance with 28 U.S.C. § 1997e(a), and that
this matter therefore be DISMISSED in its entirety.
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
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reminded that objections must be both timely and specific to trigger de novo review by the
district court.
STATUS OF REFERRAL: This case should no longer be referred.
DATED this 22nd day of January 2025.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE
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