Smith v. Tallant et al

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
CURTIS WAYNE DALE SMITH, JR. 	PLAINTIFF
v. 	Case No. 4:23-cv-4111
JANA TALLANT, Howard County Jail Administrator;
JOEY DAVIS, Howard County Detention Center;
and DR. JOAN MCLEAN 	DEFENDANTS
ORDER
Before the Court is the Report and Recommendation filed November 6, 2024, by the
Honorable Christy Comstock, United States Magistrate Judge for the Western District of Arkansas.
ECF No. 54. 	Defendants Jana Tallant and Joey Davis (collectively, “Defendants”)1 have filed
objections. ECF No. 57. The matter is ripe for consideration by the Court.
I. BACKGROUND
Plaintiff was incarcerated at the Howard County Detention Center (“HCDC”) during the
time relevant to his claims. Plaintiff brings a claim of excessive force against Defendant Davis,
arguing that Davis injured Plaintiff during his arrest. Plaintiff brings the following claims against
Defendant Tallant: denial of medical care, denial of access to counsel, denial of access to mail,
unconstitutional conditions of confinement, and denial of visitations. 	Plaintiff brings these
constitutional claims under 42 U.S.C. § 1983.
Defendants have filed a Motion for Summary Judgment (ECF No. 36) on the limited issue
of exhaustion. Defendants argue that Plaintiff failed to appeal the grievances related to his claims
against Defendant Tallant as required by the HCDC’s grievance procedure. Defendants also argue
that Plaintiff failed to file any grievance specifically related to his claim of excessive force against
1The Court notes that Defendant Joan McLean has been dismissed from this lawsuit. ECF No. 68.
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Defendant Davis. 	Judge Comstock recommends that the Court deny Defendants’ Motion for
Summary Judgment (ECF No. 36) on the limited issue of exhaustion. Defendants object.
II. STANDARD OF REVIEW
The Court may designate a magistrate judge to hear pre- and post-trial matters and to
submit to the Court proposed findings of fact and recommendations for disposition. 28 U.S.C. §
636(b)(1). Within fourteen days of receipt of a magistrate judge’s report and recommendation, “a
party 	may 	serve 	and 	file 	specific 	written 	objections 	to 	the 	proposed 	findings 	and
recommendations.” Fed. R. Civ. P. 72(b)(2); accord Local Rule 72.2(VII)(C). After conducting
a de novo review of those portions of the report and recommendation which are the subject of
objections, the Court may then “accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge . . . or recommit the matter to the magistrate judge
with instructions.” 28 U.S.C. § 636(b)(1); Thompson v. Nix, 897 F.2d 356, 357-58 (8th Cir. 1990).
The issue before the Court is whether Defendant is entitled to summary judgment.
“Summary judgment is proper if the pleadings, the discovery and disclosure materials on file, and
any affidavits show that there is no genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law.” Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th
Cir. 2011) (quotation omitted). A fact is material only when its resolution affects the outcome of
the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine if the
evidence is such that it could cause a reasonable jury to return a verdict for either party. Id. at 252.
“There is no genuine issue of material fact when the record taken as a whole could not lead a
rational trier of fact to find for the nonmoving party.” Zimmerli v. City of Kansas City, Missouri,
996 F.3d 857, 862-63 (8th Cir. 2021) (quotation omitted).
The Court must view the evidence and the inferences that may be reasonably drawn from
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the evidence in the light most favorable to the nonmoving party. Enter. Bank v. Magna Bank, 92
F.3d 743, 747 (8th Cir. 1996). “The party moving for summary judgment generally has the burden
of demonstrating the absence of any genuine issues of material fact.” Zimmerli, 996 F.3d at 863.
A party opposing a properly supported motion for summary judgment may not rest upon mere
allegations or denials but must set forth specific facts showing that there is a genuine issue for trial.
Anderson, 477 U.S. at 256. The Court conducts its de novo review of the objections to the Report
and Recommendation with this standard in mind.
III. DISCUSSION
As to the excessive force claim against Defendant Davis, Judge Comstock recommends
that Defendants’ Motion for Summary Judgment (ECF No. 36) be denied, because the exhaustion
requirement does not apply to claims that arose prior to Plaintiff’s incarceration. Defendant does
not object to this recommendation.
As to the claims against Defendant Tallant, Judge Comstock recommends that Defendants’
Motion for Summary Judgment (ECF No. 36) be denied because a genuine issue of material facts
exists as to whether HCDC’s grievance procedure requires that Plaintiff appeal his grievance to
the 	Sheriff 	in 	order 	to 	exhaust 	his 	administrative 	remedy. 	Defendant 	objects 	to 	this
recommendation.
The Prison Litigation Reform Act (“PLRA”) requires prisoners to exhaust all available
administrative remedies prior to filing a § 1983 claim. 42 U.S.C. § 1997e(a). In order to exhaust,
prisoners must fully and properly exhaust their administrative remedies as to each claim that is
later raised in a 42 U.S.C. § 1983 lawsuit. Jones v. Bock, 549 U.S. 199, 211. “[I]t is the prison’s
requirements, and not the PLRA, that define the boundaries of proper exhaustion.” Id. at 218. In
other words, to satisfy the PLRA, prisoners must comply with the exhaustion requirements of the
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incarcerating facility before they can properly bring a claim in a § 1983 action. 	However, the
PLRA requires exhaustion of only such administrative remedies that are “available.” Townsend
v. Murphy, 898 F.3d 780, 783 (8th Cir. 2018).
There is no dispute as to whether Plaintiff filed grievances related to his claims against
Defendant Tallant. Instead, Defendants argue that Plaintiff failed to appeal his grievances, thus
failing to exhaust the HCDC’s grievance procedure.
The HCDC’s grievance procedure instructs a prisoner as to how to file grievances and sets
out the timeline for the facility to respond to the grievances. ECF No. 32-2, p. 2. Under a section
titled “Appeals,” the grievance procedure states that “[t]he grievant may appeal any response or
lack of response to the Sheriff. Appeals to the Sheriff may be delivered in the same manner as
above.” ECF No. 32-2, p. 3). The procedure further states, “[i]f for any reason, a detainee fears
use of the grievance procedure, the detainee[’]s grievance may be presented to the Sheriff as an
appeal.” ECF No. 32-2, p. 3.
Judge Comstock found that the grievance procedure indicates that an appeal is optional,
because it states that Plaintiff “may” appeal, not that he “shall” appeal. Judge Comstock noted,
“[t]here is no indication on the face of the HCDC grievance procedure that an appeal is necessary
to complete or exhaust” the grievance procedure. 	ECF No. 54, p. 7. 	Judge Comstock then
concluded that a genuine issue of material fact exists as to whether the HCDC’s grievance
procedure “requires an appeal to the Sheriff in order to exhaust, and if it does, whether Plaintiff
attempted to appeal his grievances pursuant to the HCDC Grievance Procedure.” ECF No. 54, p.
7.
Defendants argue that Judge Comstock erred when she found that a genuine issue of
material fact exists as to whether HCDC’s grievance policy requires an appeal to the sheriff in
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order to exhaust. Defendants contend that an appeal to the sheriff is an “available” second step in
the HCDC grievance process, and thus it must be exhausted. To support this argument, Defendants
cite to several cases from the Eastern District of Arkansas. See Hopkins v. Higgins, No. 4:23-cv-
00905, 2024 WL 4000807 (E.D. Ark. Aug. 9, 2024); Gallardo v. Lemmons, No. 4:23-cv-00468,
2023 WL 7350073 (E.D. Ark. Oct. 17, 2023); Warren v. Hoilday, No. 4:18-00248, 2019 WL
4621647 (E.D. Ark. Aug. 29, 2019). These cases interpret the Pulaski County Detention Facility’s
(“PCDF”) grievance procedure as requiring, for purposes of administrative exhaustion, an appeal
to the Chief of Detention even though the policy language uses the phrase “may appeal.” However,
in these Eastern District of Arkansas cases, the district court states that the appeal language in the
PCDF’s grievance policy—specifically, the use of the words “may appeal”—is arguably
ambiguous, but the court points out that “language later in the [PCDF’s grievance] policy indicates
that the appeal ‘is the final level of the appeal process.’” Hopkins, 2024 WL 4000807, at *3, fn.
5.
Defendants argue that “it is clear from the face of the [HCDC’s grievance] policy that an
appeal to the Sheriff is the final step of the grievance process.” 	ECF No. 57, p. 3. 	The Court
disagrees. Unlike PCDF’s grievance procedure, the HCDC’s grievance procedure does not contain
clarifying language anywhere in the policy explaining that an appeal to the sheriff is the final level
of the appeal process. Thus, the Court agrees with Judge Comstock that the ambiguous language
of HCDC’s grievance procedure creates a genuine issue of material fact as to whether the HCDC
grievance procedure requires an appeal to the sheriff in order to exhaust. 	Therefore, the Court
finds that summary judgment on this issue is not appropriate.
IV. CONCLUSION
Upon de novo review of the Report and Recommendation (ECF No. 54), and for the reasons
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discussed above, the Court finds that Defendants have offered neither fact nor law which would
cause the Court to deviate from Judge Comstock’s Report and Recommendation. Therefore, the
Court overrules Defendants’ objections (ECF No. 57) and adopts the Report and Recommendation
(ECF No. 54) in toto. Accordingly, Defendants’ Motion for Summary Judgment (ECF No. 36) is
DENIED.
IT IS SO ORDERED, this 31st day of March, 2025.
/s/ Susan O. Hickey
Susan O. Hickey
Chief United States District Judge
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