Harris v. Cox

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
ROGER D. HARRIS, JR. 	PLAINTIFF
v. 	Civil No. 	4:25-cv-04015-SOH-SGS
JAIL ADMINISTRATOR RAMI COX 	DEFENDANT
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, Roger D. Harris, Jr, currently an inmate of the Arkansas Division of Corrections
– Wrightsville Unit in Wrightsville, Arkansas, 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, United States District Judge, referred this
case to the undersigned for the purpose of making a Report and Recommendation.
Currently before the Court is Defendant’s Motion for Summary Judgment on the limited
issue of exhaustion. 	(ECF No. 21). 	Plaintiff responded. 	(ECF No. 27). 	Defendant replied.
(ECF No. 30). 	After consideration, the Court recommends the Defendant’s Motion be denied and
this case proceed to discovery.
I. 	BACKGROUND
Plaintiff originally filed his Complaint in Civil No. 4:25-cv-04012-BAB on February 14,
2025. 	The Court then severed Plaintiff’s claims and opened the instant case and ordered Plaintiff
to file an Amended Complaint. 	(ECF No. 2). 	Plaintiff filed his Amended Complaint on March
18, 2025. 	(ECF No. 4). 	Finally, Plaintiff was granted in forma pauperis status on May 15, 2025.
(ECF No. 12).
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In his Amended Complaint, Plaintiff names only Rami Cox, Jail Administrator for
Lafayette County Detention Center (“LCDC”) as Defendant. 	Plaintiff also only asserts one claim
against Defendant Cox: Plaintiff claims that from September 25, 2024, through October 29, 2024,
Defendant Cox denied him dental care. 	Specifically, Plaintiff states he put in a medical request
to see the doctor or a dentist about his tooth but was refused. 	Plaintiff claims he was told to have
his family bring him something for his toothache. 	Plaintiff’s mother brought him Orajel, but he
is still in pain. 	(ECF No. 4, p. 4). 	Plaintiff asserts this claim against Defendant in her individual
and official capacities. 	Id. at 5. 	Plaintiff seeks compensatory and punitive damages. 	Id. at 9.
Defendant filed her Motion for Summary Judgment, Brief, and Statement of Indisputable
Facts on August 12, 2025. 	(ECF Nos. 21, 22, 23). 	Defendant argues Plaintiff’s claims must be
dismissed pursuant to the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a) for failure to
properly exhaust his claim of denial of dental care prior to filing this lawsuit. 	(ECF No. 22).
Specifically, Defendant argues Plaintiff did not comply with the LCDC Grievance Procedure and
its requirement to appeal grievances. 	Id. at 4-6.
Defendant also submitted to the summary judgment record: (1) Plaintiff’s Grievances;
(2) Plaintiff’s Medical Requests; (3) the LCDC Grievance Procedure; and (4) two Affidavits from
Defendant explaining the LCDC Grievance Procedure and other procedures in place at the LCDC
during the relevant time. 	(ECF No. 23).
First, the LCDC’s Grievance Procedure reads in totality:
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(ECF No. 23-5).
On September 25, 2024, Plaintiff submitted a Medical Request Form stating:
I AM HAVING A BAD TOOTH ACE ON RIGHT SIDE OF MY
MOUTH AT THE BOTTOM I NEED SOME ANTIBIOTICS PLEASE
(ECF No. 23-4, p. 15) (errors and emphasis in original). 	Defendant reviewed this Medical
Request on September 27, 2024, and noted, “printed and in the Dr. folder.” 	Id. 	Defendant
reviewed the Medical Request again on November 20, 2024, and June 9, 2025, without comment.
Id.
On October 29, 2024, at 5:51 p.m., Plaintiff submitted a second Medical Request Form
stating:
Okay i have been trying to be patient and wait for the proper medical
assistance for my tooth although i still having been undergoing unbearable
pain please get me the proper medical attention.thanks!
(ECF No. 23-4, p. 16) (errors in original). 	The first activity noted on the Medical Request is
Plaintiff adding a note, on October 29, 2024 at 5:53 p.m., stating: “please also forward this message
to sheriff Jeff Black..Thanks..!!” 	Id. (errors in original). 	Defendant then reviewed the Medical
Request on October 3, 2024 noting: “I am working on getting everyone to the Dentist.” 	Id.
Defendant then reviewed the Medical Request on November 20, 2024, June 9, 2024, and July 7.
2-25 without comment. 	Id.
On both the September 25, 2024 and the October 29, 2024 Medical Request Forms, the
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“Form State” lists the “Status” of the Request as “Resolved,” and under “Offender Can Appeal”
the Medical Request form indicates “Yes.” 	(ECF No. 23-4, pp. 15-16).
On October 29, 2024, Plaintiff also submitted a Grievance Form stating:
I have been nothing but patient and i still haven’t got any medical attention
i put in my first medical request on 09/26/24 and i still haven’t heard from
no-one nor seen the doctor i need admediate medical attention for my tooth
please and thank you…!!!
(ECF No. 23-3, p. 16) (errors in original). 	October 31, 2024, Defendant Cox reviewed the
grievance and noted: “I am working on it.” 	On November 20, 2024, Defendant Cox reviewed the
grievance again without comment. 	Id. 	On this Grievance the “Form State” list the “Status” of
the Grievance as “Resolved,” and under “Offender Can Appeal” the Grievance form indicates
“Yes” just as the Medical Request form indicates. 	Id.
Defendant also submitted an Affidavit in which she testified: (1) when she responds to
Grievances they are automatically marked under the status as “Resolved;” (2) on October 31, 2024,
she changed the “Offender Can Appeal” status to “Yes” on Plaintiff’s October 29, 2024 Grievance;
(3) Plaintiff did not appeal his October 29, 2024 Grievance; (4) Medical Requests are “generally
handled differently than Grievances;” (5) during the timeframe at issue she would print out the
Medical Request and put it in a box for the LCDC medical provider and note this fact on the
Request; (6) Medical Requests “are not generally forwarded to Sheriff Black;” and (7) the Inmate
Handbook, which details the LCDC Grievance Procedure is required reading for all inmates the
first time they log on the to the LCDC kiosk. 	(ECF No. 23-1).
Plaintiff responded to Defendant’s Motion on September 10, 2025. 	(ECF No. 27).
Plaintiff argues that Defendant admitted Plaintiff “abided by” the LCDC grievance procedure in
their Motion for Summary Judgment and exhibits. 	Id. at 1. 	Plaintiff also argues there was
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nothing to appeal, and he was never given an Inmate Handbook. 	Plaintiff specifically alleges the
Inmate Handbook was not available on the kiosk at the LCDC until “after the fact.” 	Id. at 3.
Alternatively, Plaintiff asserts he did appeal his Medical Request on October 29, 2024, by asking
it to be forwarded to Sheriff Black. 	Id. 	Plaintiff argues this should be considered his appeal.
Id.
Plaintiff further argues he attempted to appeal in the best way he knew how without the
benefit of instruction or an Inmate Handbook. 	Plaintiff states he should not be accountable for
Defendant’s failure to provide him with the Grievance Procedure, nor should he be punished for
her failure to forward his Medical Request to the Sheriff as he requested. 	Id. at 3.
Defendant filed a Reply on September 25, 2025. 	(ECF No. 30). 	Defendant argues
Plaintiff acknowledged he received a copy of the LCDC Inmate Handbook including the LCDC
Grievance Procedure prior to filing his Grievance on October 29, 2024. 	Id. at 2. 	Also, Defendant
argues even if the Court determines Plaintiff’s comment on his Octboer 29, 2024 Medical Request
was an attempted appeal, it does not satisfy the LCDC Grievance Procedure because Plaintiff made
the request prior to Defendant’s response to his Medical Request. 	Id. 	Defendant also attached
her second Affidavit to this Reply. 	In this Affidavit she testified:
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(ECF No. 30-1).
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,
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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.” 	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).
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
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
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exhaust. 	See Nerness v. Johnson, 401 F.3d 874, 876 (8th Cir.2005).
The parties dispute whether Plaintiff properly exhausted the relevant Grievance here by
appealing it to the Sheriff. 	Defendant argues Plaintiff failed to appeal, thus failing to properly
exhaust. 	Plaintiff first argues he did not have the LCDC Handbook with the Grievance Procedure
made available to him, so he did not know how to exhaust his claim. 	The Court construes this
argument as one arguing the LCDC Grievance Procedure was not available to Plaintiff because he
was not aware of what was required to access and fully exhaust the LCDC Grievance Procedure.
While exhaustion pursuant to the PLRA is mandatory, Plaintiff is only required to exhaust
those administrative remedies which are “available” to him. 	See Ross v. Blake, 578 U.S. 632, 639
(2016). 	In Ross, the Supreme Court enumerated three instances where plaintiffs are excused from
exhaustion of administrative remedies as “unavailable” pursuant to the PLRA: (1) when the
procedure operates as a “dead end” because the officers are unable or unwilling to provide relief
to the inmate; (2) the grievance procedure is so opaque as to become “incapable of use;” and
(3) when prison officials prevent a prisoner from utilizing the procedure through “machination,
misrepresentation, or intimidation.” 	Id. at 643-44. 	Plaintiff does not argue the LCDC Greivance
Procedure is a dead end, but instead that he was incapable of using it because he was not provided
the Handbook. 	This appears to the Court to be a combination of instances two and three. 	See
Ross, 644 (“Remedies that rational inmates cannot be expected to use are not capable of
accomplishing their purpose and so are not available.”) (quoting Turner v. Burnside, 541 F.3d
1077, 1084 (11th Cir. 2008)).
It is undisputed the proffered Grievance Procedure was the formal procedure in place and
in the LCDC Handbook at the time in issue here. 	It is also undisputed this Grievance Procedure
requires an appeal. 	However, there is a factual dispute as to whether the Inmate Handbook with
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the Grievance Procedure was made available to Plaintiff. 	Defendant specifically testifies in her
second Affidavit that the Handbook was available to Plaintiff and that he acknowledged this fact
before filing his first Grievance. 	(ECF No. 30-1). 	However, Defendant also states she is unsure
whether the Inmate Handbook remained available for viewing after the initial kiosk set up at the
LCDC. 	Id. 	Plaintiff states in his verified Response that the Inmate Handbook with the
Grievance Procedure was not available to him until “after the fact.” 	(ECF No. 27, p. 3). 	Plaintiff
goes on to state that because he could not access this information, he did not know of his right or
responsibility to appeal. 	Id. 	There is no additional evidence on the record, from either party,
supporting their contradictory positions.
Here, Plaintiff’s version of events is not blatantly contradicted by the record. 	Instead, this
record simply contains conflicting testimony. 	Cf. Scott v. Harris, 550 U.S. 372, 380 (2007). 	At
this stage, the Court cannot weigh evidence or determine credibility. 	Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 150 (2000) (explaining the court must draw all reasonable
inferences in favor of the nonmoving party and may not make credibility determinations or weigh
the evidence as those are jury functions). 	Accordingly, the Court finds there is a genuine issue of
fact as to whether the LCDC Handbook and Grievance Procedure were provided for Plaintiff’s
review, thus, enabling him to participate in the LCDC Greivance Procedures.
Furthermore, even if Plaintiff were provided with the proffered LCDC Greivance
Procedure, the Court finds it unlikely he would be able to determine the Defendant’s argued
requirements for exhausting it. 	For example, the LCDC’s written Grievance Procedure requires
the inmates to submit Grievances to the Jail Administrator in writing in a sealed envelope. 	(ECF
No. 23-5). 	Obviously, this is no longer the grievance procedure in practice at the LCDC. 	As is
clear from this record, the inmates at the LCDC now submit their grievances to the jail
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administrator electronically via a kiosk. 	Additionally, as is argued by Defendant, an appeal is
also required via the kiosk.1 	Finally, the Court finds it very confusing that the Medical Requests
are marked “Resolved” and “Yes” the “Offender can Appeal” in the same exact way as Grievance
Forms are marked, yet the inmates are not allowed to appeal the response to the Medical Request.
The LCDC Greivance Procedure does not address any of these procedures in practice at the LCDC
during the relevant time period. 	Plaintiff is excused from the PLRA exhaustion requirements
under such circumstances where “officials themselves have failed to comply with [their own]
grievance procedures.” 	Porter v. Sturm, 781 F.3d 448, 452 (8th Cir. 2015) (internal quotations
omitted). 	Therefore, even if there were not genuine issues of material fact as to whether the
LCDC Grievance Procedure was available to Plaintiff, the Court finds Plaintiff should be excused
from the PLRA exhaustion requirements here because the Defendant is not following the proffered
LCDC Grievance Procedure.
IV. 	CONCLUSION
For these reasons, it is recommended the Defendant’s Motion for Summary Judgment (ECF
No. 21) be DENIED.
REFERRAL STATUS: this case should remain referred.
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
1 The Court need not address Plaintiff’s alternative argument that he did in fact exhaust his
administrative remedies with his attempt to appeal his Medical Request as it finds there are genuine
issue of material fact as to whether the LCDC Grievance Procedure was available to Plaintiff and
whether the LCDC officials followed their own Grievance Procedure.
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are reminded that objections must be both timely and specific to trigger de novo review by
the district court.
DATED this 23rd day of December 2025.
/s/ Spencer G. Singleton
HON. SPENCER G. SINGLETON
UNITED STATES MAGISTRATE JUDGE
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