Owens v. Ms. Michelle Waller et al

1
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
MARCUS ONEIL LAQUIENT OWENS 	PLAINTIFF
v. 	Civil No. 4:24-cv-04057-SOH-CDC
MS. MICHELLE WALLER, Kitchen Staff,
Miller County Detention Center (MCDC);
MS. KATHLEEN ARNOLD, Kitchen Staff,
MCDC; SHERIFF WAYNE EASLEY, Miller
County, Arkansas; and WARDEN JEFFIE WALKER 	DEFENDANTS
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
Plaintiff, Marcus Owens (“Owens”), filed this civil rights action under 42 U.S.C. § 1983.
Owens proceeds pro se and in forma pauperis (“IFP”). 	Owens is incarcerated in the Miller
County Detention Center (“MCDC”). 	Owens contends he is being denied adequate nutrition.
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 this Report and Recommendation. 	Before the Court is the Motion for Summary
Judgment on the issue of exhaustion filed by Defendants. 	(ECF Nos. 17-19). 	Owens has
responded. 	(ECF Nos. 21-22). 	The Motion is ready for decision.
I. 	BACKGROUND
Owens filed this case on May 29, 2024. 	(ECF No. 1). 	The Complaint was determined
to be deficient because Owens had failed to state how Defendant Easley had personally violated
Case 4:24-cv-04057-JTS Document 26 Filed 02/28/25 Page 1 of 14 PageID #:
<pageID>

2
his federal constitutional rights. 	(ECF No. 3). 	An Amended Complaint was ordered to be filed
by June 20, 2024. 	Id. 	Owens timely filed his Amended Complaint on June 10, 2024. 	(ECF No.
6). 	The Amended Complaint is the operative pleading in this case. 	Id.
In Claim One, Owens maintains that since May 7, 2024, he has continually been denied a
protein substitute at breakfast. 	(ECF No. 6 at 4). 	Owens says he is a vegetarian and is not
receiving the necessary amount of protein. 	Id. 	At breakfast, instead of being served a protein
substitute, Owens indicates he is being provided with an extra biscuit which is a carbohydrate. 	Id.
For example, on June 5, 2024, Owens states his breakfast consisted of three biscuits, gravy, and
oatmeal. 	Id. 	A non-vegetarian breakfast consists of oatmeal, two biscuits, gravy, and sausage.
Id. at 5.
Owens indicates Defendants Waller and Arnold “swap their work schedule out” and do not
serve him with the same amount of protein served to other inmates. 	Id. 	Owens alleges he
submitted requests and grievances but to no avail. 	Id.
Owens maintains he is being injured daily because of the lack of protein in his diet. 	(ECF
No. 6 at 5). 	He maintains the correct amount of protein is an essential part of a healthy diet and
he needs the nutrients or his health will suffer. 	Id. 	In fact, Owens says he is feeling weak and
exhausted all the time and is an emotional wreck. 	Id.
In Claim Two, Owens asserts he is being denied the correct nutrients and protein that a
vegetarian is supposed to have. 	(ECF No. 6 at 6). 	Owens again asserts that he has submitted
requests and grievances on this issue but nothing has been done to solve this problem. 	Id.
Case 4:24-cv-04057-JTS Document 26 Filed 02/28/25 Page 2 of 14 PageID #:
<pageID>

3
Owens says Defendants Walker and Easley are not following the grievance procedure and
instead are allowing kitchen staff to answer his grievances. 	(ECF No. 6 at 6). 	Whether he
appeals a response or not, Owens asserts kitchen staff always respond. 	Id. 	Owens maintains that
the grievance officer is not responding to his complaints, grievances, or appeals. 	Instead, Owens
asserts that kitchen staff are being allowed to respond to grievances about their own alleged
misconduct. 	Id. 	Owens maintains he is being denied due process and equal protection. 	Id.
Without his dietary needs being met, Owen maintains he has been a physical and emotional wreck.
Id.
As relief, Owens seeks compensatory damages, his charges dropped, and to be allowed out
on parole. 	(ECF No. 6 at 8). 	Owens suggests that he be “excused” from the State of Arkansas
and be allowed a clean start elsewhere. 	Id.
II. 	APPLICABLE STANDARD
Summary judgment is appropriate if, after viewing the facts and all reasonable inferences
in the light most favorable to the nonmoving 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.” 	Nat. Bank of Comm. v. Dow Chemical Co., 165 F.3d 602,
607 (8th Cir. 1999).
Case 4:24-cv-04057-JTS Document 26 Filed 02/28/25 Page 3 of 14 PageID #:
<pageID>

4
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 (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. 	DISCUSSION
Defendants maintain Owens failed to submit any formal complaints, grievances, or appeals
against any of them concerning the events at issue in the Amended Complaint before he filed this
lawsuit. (ECF No. 17 at 1-2). 	According to Defendants, Owens’ first request to change his vegan
diet was submitted after this lawsuit was filed. 	Defendants maintain Owens failed to exhaust his
administrative remedies and his claims are barred. 	In opposition, Owens maintains he exhausted
his administrative remedies with his requests, grievances, and appeals, all of which were
improperly handled solely by kitchen staff. 	(ECF No. 21 at 1-2).
A. The Exhaustion Requirement
The Prison Litigation Reform Act (“PLRA”) in 42 U.S.C. § 1997e(a) 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
Case 4:24-cv-04057-JTS Document 26 Filed 02/28/25 Page 4 of 14 PageID #:
<pageID>

5
administrative remedies as are available are exhausted.” 	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 	“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 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. 	A prisoner’s remedies are exhausted “when [the] inmate pursues the prison
grievance process to its final stage and receives an adverse decision on the merits.” 	Hammett v.
Cofield, 681 F.3d 945, 947 (8th Cir. 2012).
B. The MCDC Grievance Procedure
The Miller County Sheriff’s Office, detention division, has a procedure, SOP 09.01, that
applies to inmate rights, complaints, and grievances. 	(ECF No. 19-4 at 1). 	Under scope, it
provides that the procedure applies to all “Corrections Personnel.” 	Id. 	While several terms are
defined, “corrections personnel” is not. 	Id. 	A “complaint” is defined as “[a] verbal and/or
written communication with staff for informal resolution of an incident, policy, procedure, or
condition within the jail which personally/directly affects the inmate.” 	Id. 	Complaints may be
submitted via the kiosks present in the housing areas. 	Id. 	The term “grievance” is defined as a
“[w]ritten communication for formal resolution of an incident, policy, procedure or condition
within the jail which personally affects the inmate filing the grievance. 	A grievance can only be
made subsequent to filing a written complaint and receiving a written response.” 	Id.
Case 4:24-cv-04057-JTS Document 26 Filed 02/28/25 Page 5 of 14 PageID #:
<pageID>

6
Section 3 applies to inmate complaints and provides as follows:
a. 	Inmate complaints shall be submitted through the KIOSK.
b. 	Inmate 	requests/concerns/complaints 	shall 	be 	reviewed 	daily 	(excluding
weekends and holidays) and routed to the appropriate person to address. 	A
response to all complaints shall be provided to the inmate in a timely manner.
c. 	Complaints directed to a particular supervisory level (i.e. Captain or Major)
does not require that they respond. 	Complaints will be forwarded to the lowest
appropriate supervisory level to address and respond.
d. 	Multiple copies of the same complaint, directed to multiple supervisory levels
will be combined and addressed at the lowest level appropriate.
e. 	Appropriate criminal charges for filing a false report and/or perjury may be
pursued. 	Complaints which have already been answered do not require
additional responses. 	Repetitive complaints shall be returned to the inmate.
f. 	The supervisor addressing the complaint shall ensure a response is delivered to
the inmate.
(ECF No. 19-4 at 4).
Section 4 applies to grievances and provides as follows:
a. 	The 	Jail 	Warden 	or 	designee 	is 	responsible 	for 	the 	coordination 	and
management of the grievance procedures. 	Inmates who cannot resolve a
complaint through the procedure using the KIOSK shall have access to a
grievance 	procedure. 	Inmate 	grievances 	which 	are 	determined 	to 	be
untruthful/frivolous will be considered the same as lying to staff members and
appropriate sanctions may be imposed. 	Appropriate criminal charges for filing
a false report and/or perjury may also be pursued. 	Grievances and appeals
which have already been answered do not require additional responses.
Repetitive grievances or appeals shall be returned to the inmate.
1) 	Inmates may not grieve the following matters:
a) 	State and federal court decisions;
b) 	Local, state and federal laws and regulations;
Case 4:24-cv-04057-JTS Document 26 Filed 02/28/25 Page 6 of 14 PageID #:
<pageID>

7
c) 	Classification decisions;
d) 	Other matters beyond the control of the Miller County Sheriff’s Office.
2) 	Inmates may grieve the following matters:
a) 	The substance, interpretation and application of policies, rules, and
procedures of the Miller County Jail that affect them personally/directly.
Inmates may not grieve on behalf of another inmate.
b) 	Staff retaliation for filing a grievance, appeal, or participating in an
inmate grievance proceeding;
c) 	Incidents 	occurring 	within 	the 	facility 	that 	affect 	them
personally/directly including a disciplinary decision;
d) Any matter relating to conditions of care or supervision within the
authority of the Miller County Jail.
3) 	Grievances shall be routed to the Warden or Risk Management Officer.
All grievances must be responded to within the following established time
frames:
a) 	Within thirty (30) calendar days of receipt of a grievance, the grievance
shall be reviewed and if applicable thoroughly investigated. 	The
investigation results shall be provided to the Jail Warden or RM Officer,
in writing. 	Grievances requiring extensive research and documentation
may require a longer period of time for responses. 	The Jail Warden
may extend response time periods for a reasonable period if necessary.
The extension shall be communicated in writing to the complainant.
b) 	The Jail Warden will have ten (10) working days from the date of the
review, or when the investigation is complete to review the grievance
results and provide the inmate with a written response.
4) 	Inmates must follow the below procedures to submit a grievance:
a) 	All grievances shall be submitted on a Request for Administrative
Remedy Form, jail form 09.01A obtainable from a shift officer or
supervisor.
Case 4:24-cv-04057-JTS Document 26 Filed 02/28/25 Page 7 of 14 PageID #:
<pageID>

8
b) 	At all levels of the grievance or appeal process, it will be the
responsibility 	of 	the 	inmate 	to 	present 	only 	specific 	facts 	and
circumstances directly relating to the complaint. 	The inmate should be
brief and concise, stating only one issue per form. 	The inmate should
also state the remedy which they are seeking and state what the original
complaint 	addressed. 	Grievances 	received 	without 	an 	original
complaint and response shall be promptly returned.
c) 	Upon completion of the Administrative Remedy Form by the inmate,
the form shall be routed to the Facility Warden or Risk Management
Officer. 	A grievance may be returned to the inmate for resubmission,
if it:
:
(1) Contains more than one issue;
(2) Does not follow the prescribed format;
(3) Seeks a remedy for matters beyond the facility’s control;
(4) Contains profanity, unless quoting;
(5) Does not have an original complaint on file.
(ECF No. 19-4 at 4-6).
Inmates may appeal the grievance findings to the Jail Warden by “stating they wish to
APPEAL the FINDINGS ON THE ‘INMATE ACKNOWLEDGEMENT FORM.’” 	(ECF
No. 19-4 at 6). 	However, if the Jail Warden responded to the grievance, his/her decision is final.
Id. 	Within fifteen (15) days of the inmate signing the “Inmate Acknowledgement for Grievance”
form, the administrative remedy form and other relevant documents “shall be forwarded to the Jail
Warden or designee.” 	Id. 	The Jail Warden or his/her designee has ten (10) working days after
receipt of the appeal.
Case 4:24-cv-04057-JTS Document 26 Filed 02/28/25 Page 8 of 14 PageID #:
<pageID>

9
C. Application
Owens was booked into the MCDC on May 7, 2024. 	(ECF No. 19-2 at 1). 	On May 11,
2024, Owens submitted a document, presumably via the kiosk, which has the word “request” above
the area where Owens described the problem. 	(ECF No. 19-3 at 2). Owens complained that the
kitchen had served him a tray with no protein. 	Id. 	He asserted that the other inmates received
protein via sausage on their trays and he was only given an extra biscuit which was a carbohydrate
and not a protein. 	Id. 	Owens indicated he wanted to receive his appropriate diet—nothing more
and nothing less. 	Id. 	When he brought the lack of a protein to the attention of the officer working
the door, the officer merely responded: “Hey you in jail.” 	Id. 	That morning, Owens said he had
received no tray at all. 	Id.
The document was received by the grievance officer and given a number. 	(ECF No. 19-3
at 2). 	On May 13th, the grievance officer wrote: “I have forwarded you[r] request to the
appropriate authority.” 	Id. 	On May 14th, kitchen staff responded: “YOU ARE GETTING
WHAT YOU ARE SUPPOSED TO GET SIR AND IT IS APPROVED BY THE DIETICIAN.
IF YOU REFUSED THAT IS ON YOU SIR.” 	Id. 	On May 14th, Owens wrote that he wanted
to appeal. 	Id. 	Kitchen staff responded that was his choice. 	Id. 	No response to the appeal
appears on the form. 	Id. 	The status listed on the form is “closed.” 	Id.
Owens submitted a second request on May 11, 2024. 	(ECF No. 19-3 at 3). 	This request
stated:
To whom it may concern; i didn’t receive no breakfast tray reason being that im a
vegetarian and my tray was not equal to other inmates trey, no protein was on
vegetarian trey but was on everybody else tray. 	Extra biscuit is not protein. 	I
have the right to be treated fair firm and consistent, Thank You.
Case 4:24-cv-04057-JTS Document 26 Filed 02/28/25 Page 9 of 14 PageID #:
<pageID>

10
Id. 	The request is marked received by kitchen and was assigned a number. 	Id. 	On May 12th,
kitchen staff responded: “IM SORRY THAT YOU FEEL THAT WAY AND WE DO NOT GIVE
PEANUT BUTTER IN THE MORNING.0F
1 	IF YOU LOOK IT UP OATMEAL HAS PROTEIN
IN. 	WE ARE TREATING YOU FAIR SIR.” 	Id. 	Under the area on the form, where the inmate
indicates if he wants to appeal, Owens wrote “ok and thank you.” 	Id. 	Kitchen staff responded:
“NO PROBLEM SIR.” 	Id. 	The status of the form is listed as closed. 	Id.
On May 17, 2024, Owens submitted a request stating his morning tray contained no
oatmeal and therefore no protein. 	(ECF No. 19-3 at 4). 	Owens remarked that they gave him
extra carbohydrates but he also needed protein. 	Id. 	The document was received by kitchen staff
and assigned a number. 	Id. 	Kitchen staff responded by asking why the officer did not come back
with the tray. 	Id. 	Further, kitchen staff stated the on-duty Corporal had advised them that
oatmeal was on the trays. 	Id. 	Owens indicated he wanted to appeal. 	Id. 	He said all they had
to do was look at the camera footage and they should see an officer bringing back a tray unless he
gave the tray to someone else. 	Id. 	Owens says he would not have said there was no oatmeal
unless it was true. 	Id. 	Kitchen staff responded to the appeal by stating:
We take allegations such as the one you have made very seriously. 	We would like
to remind you that disciplinary action will be taken against you if it is found that
you have made false allegations. 	We also want to assure you that if necessary,
appropriate measures will be taken to address your concerns.
1 This is the only reference to peanut butter in the record.
Case 4:24-cv-04057-JTS Document 26 Filed 02/28/25 Page 10 of 14 PageID #:
<pageID>

11
Id. 	There is no indication the camera footage was examined or any other investigation was
done. 	Id. 	The status of the appeal is listed as closed. 	Id.
On July 24, 2024, submitted a request that was assigned to “kitchen” asking to be taken off
the “vegan list.” 	(ECF No. 19-3 at 1). 	The document was assigned a number. 	Id. 	No response
appears on the form. 	Id. 	The status of the request is listed as open. 	Id.
Defendants have submitted the affidavit of Al Landreth, the jail administrator, who states:
“Plaintiff did not submit any formal complaints, grievances, or appeals against any of the Miller
County Defendants he has named in this lawsuit concerning the issues he raises in this case.”
(ECF No. 19-1 at 2). 	It is not clear how Defendants would characterize the May 11th and May
17th documents; rather, the Court only knows Defendants are taking the position that the
documents are not formal complaints, grievances, or appeals.
The Court disagrees. 	The MCDC defines complaint to be a written communication
seeking an informal resolution of an incident, policy, or procedure within the jail that personally
or directly affects the inmate. 	(ECF No. 19-4 at 1). 	The complaints are to be submitted via the
kiosk. 	Id. 	A grievance can only be submitted after a written complaint has been made and a
response received. 	Id. 	The term “grievance” is defined as a written communication seeking
formal resolution of an incident, policy, procedure or condition within the jail which personally
affect the inmate filing the grievance. 	Id.
Complaints are forwarded to the lowest appropriate supervisory level to address and
respond. 	(ECF No. 19-4 at 4). 	The procedure does not set forth the necessary content for a
complaint. 	Id. “Inmates who cannot resolve a complaint through the procedure using the KIOSK
Case 4:24-cv-04057-JTS Document 26 Filed 02/28/25 Page 11 of 14 PageID #:
<pageID>

12
shall have access to a grievance procedure.” 	Id. 	All grievances are to be submitted on a request
for administrative remedy form, 09.01A, which can be obtained from a shift officer or supervisor.
The grievance procedure does not contain a copy of this form. 	The summary judgment record
does not contain this form. 	Defendants have not argued that Owens failed to exhaust his
administrative remedies because he did not utilize this form.
Clearly, the forms utilized on the kiosk have designated spaces for the inmate to indicate
whether he is appealing the response and for WCDC personnel to submit an appeal response.
Below is one of Owen’s grievances as it appears in the MCDC’s system.
Case 4:24-cv-04057-JTS Document 26 Filed 02/28/25 Page 12 of 14 PageID #:
<pageID>

13
Obviously, the form contemplates the appeal and the appeal response being made on the
same form used to submit the original complaint. 	With respect to the content of a grievance or
appeal, inmates are informed to present only specific facts and circumstances directly relating to
the complaint, to be brief and concise, to address no more than one issue per form, and state the
remedy they are seeking. 	(ECF No. 19-4 at 4). 	The inmates are not informed they must name or
identify the staff members involved in the alleged constitutional violation or misconduct.
Grievances are to be routed to the Warden or Risk Management Officer. 	Id. at 5.
The Court believes Owens exhausted the grievance procedure with respect to his claim he
is being served a nutritionally inadequate diet. 	While it appears, the appeal was not properly
processed, the fault for this cannot be laid at Owens’ door. 	Owens clearly stated he wanted to
appeal. 	His appeal should have been routed to the Warden or Risk Management Officer. 	There
is no evidence it was routed to one or the other and the appeal is marked closed.
IV. 	CONCLUSON
For the reasons stated, it is recommended that the Defendants’ Motion for Summary
Judgment (ECF Nos. 17-19) be DENIED.
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.
Case 4:24-cv-04057-JTS Document 26 Filed 02/28/25 Page 13 of 14 PageID #:
<pageID>

14
Status of the Referral: 	This case should remain referred for all matters not
recommended for dismissal in this Report and Recommendation.
RECOMMENDED this 28th day of February 2025.
__________________________________
CHRISTY COMSTOCK
UNITED STATES MAGISTRATE JUDGE
Case 4:24-cv-04057-JTS Document 26 Filed 02/28/25 Page 14 of 14 PageID #:
<pageID>