Smith v. Tallant et al

1
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
CURTIS WAYNE DALE SMITH, JR. 	PLAINTIFF
v. 	Civil No. 4:23-cv-04111-SOH-CDC
JANA TALLANT, Howard County Jail Administrator;
JOEY DAVIS, Howard County Detention Center;
and DR. JOAN MCLEAN 	DEFENDANTS
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, Curtis Wayne Dale Smith Jr., 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, 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 Defendants Davis and Tallant’s Motion for Summary
Judgment on the limited issue of exhaustion (ECF No. 36) and Plaintiff’s response. (ECF No. 42).
This matter is now ripe for consideration.
I. 	BACKGROUND
Plaintiff filed his original Complaint and Application to proceed in forma pauperis (“IFP”)
on November 27, 2023. 	(ECF Nos. 1, 2). 	The Court granted Plaintiff IFP status on the same day
and directed Plaintiff to file an Amended Complaint. (ECF No. 3).
Plaintiff’s Amended Complaint (ECF No. 8) was difficult to decipher but the undersigned
performed its screening and issued a Report and Recommendation on February 6, 2024. 	(ECF
No. 10). 	The Court found Plaintiff failed to state claims upon which relief could be granted
Case 4:23-cv-04111-SOH-CDC Document 54 Filed 11/06/24 Page 1 of 9 PageID #:
<pageID>

2
related to many Defendants, but Plaintiff had sufficiently stated claims related to his allegations:
(1) against Defendant Davis for excessive force; and (2) against Defendant Tallant for denial of
medical care, denial of access to counsel, denial of access to mail, unconstitutional conditions of
confinement, and denial of visitations. (ECF No. 10). 	The Report and Recommendation was
adopted by Judge Hickey, and Plaintiff’s claims against Defendants Davis and Tallant proceeded
for service. 	(ECF Nos. 17, 26).
Plaintiff was incarcerated in the Howard County Detention Center (“HCDC”) during the
relevant time, indicating he was both a pretrial detainee and convicted inmate at different times.
(ECF No. 8). 	Plaintiff alleges Defendant Tallant, as Jail Administrator, violated his constitutional
rights by: (1) denying him contact with his counsel; (2) denying him medical care by refusing
treatment after his arrest on March 13, 2023; (3) denying him access to mail; (4) denying him
visitations; and (5) subjecting him to unconstitutional conditions of confinement – a poor diet,
mixed population of felons and non-felons in housing units, and insufficient beds and showers.
(ECF No. 8, p. 4-8).
Plaintiff alleges Defendant Davis violated his constitutional rights using excessive force
while arresting him on March 13, 2023. 	Specifically, Plaintiff claims that Defendant Davis drove
his knee into Plaintiff’s back and pulled his arm back cracking Plaintiff’s vertebrae. 	(ECF No. 8,
pp. 5, 7).
In their Motion and supporting documents, Defendants Davis and Tallant argue: (1) while
Plaintiff filed grievances on all of his claims against Defendant Tallant, he failed to appeal any of
those grievances as required by the HCDC grievance procedure; and (2) Plaintiff failed to file any
grievance specifically related to his claim of excessive force against Defendant Davis. 	(ECF No.
36).
Case 4:23-cv-04111-SOH-CDC Document 54 Filed 11/06/24 Page 2 of 9 PageID #:
<pageID>

3
Plaintiff responded, arguing he did in fact grieve his excessive force claim against
Defendant Davis on April 11, 2023, June 18, 2023, and June 20, 2024. 	(ECF No. 42, pp. 5, 12).
Plaintiff also argues he appealed his grievances with his “external notes.” 	Id. at 14. 	He also
attempted to appeal all of his grievances to the Sheriff, but Defendant Tallant prevented these
appeals. 	Id. at p. 18.
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,
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).
Under § 1983, a defendant may be sued in either his personal capacity, or in his official
Case 4:23-cv-04111-SOH-CDC Document 54 Filed 11/06/24 Page 3 of 9 PageID #:
<pageID>

4
capacity, or claims may be stated against a defendant in both his personal and his official
capacities. 	The type of conduct that is actionable and the type of defense available depend on
whether the claim is asserted against a defendant in his official or individual capacity. 	See
Gorman v. Bartch, 152 F.3d 907, 914 (8th Cir. 1998) (internal citations omitted). 	“Claims against
individuals in their official capacities are equivalent to claims against the entity for which they
work; they require proof that a policy or custom of the entity violated the plaintiff’s rights, and the
only type of immunity available is one belonging to the entity itself.” 	Id. 	Personal capacity
claims “are those which allege personal liability for individual actions by officials in the course of
their duties; these claims do not require proof of any policy and qualified immunity may be raised
as a defense” to these individual capacity claims. 	Id. 	To state a claim under 42 U.S.C. § 1983,
Plaintiff must allege that the defendant acted under color of state law, and that the actor violated a
right, privilege, or immunity secured by the Constitution. 	West v. Atkins, 487 U.S. 42, 48 (1988);
Dunham v. Wadley, 195 F.3d 1007, 1009 (8th Cir.1999).
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
Case 4:23-cv-04111-SOH-CDC Document 54 Filed 11/06/24 Page 4 of 9 PageID #:
<pageID>

5
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 parties here do not dispute the HCDC has a Grievance Procedure, and Plaintiff used
this Grievance Procedure throughout his incarceration at the HCDC. 	The Grievance Procedure
provides:
Case 4:23-cv-04111-SOH-CDC Document 54 Filed 11/06/24 Page 5 of 9 PageID #:
<pageID>

6
(ECF No. 32-2, pp. 1-3).
Case 4:23-cv-04111-SOH-CDC Document 54 Filed 11/06/24 Page 6 of 9 PageID #:
<pageID>

7
A. 	Defendant Tallant
First, Defendants do not argue Plaintiff failed to file grievances0F
1 on his claims against
Defendant Tallant. 	They instead argue Plaintiff failed to appeal his grievances, thus failing to
exhaust the HCDC Grievance Procedure. 	(ECF No. 39). 	In order to satisfy the PLRA’s
exhaustion requirement, a prisoner must purse the grievance procedure process to its final stage.
See Hammett v. Cofield, 681 F.3d 945, 947 (8th Cir. 2012); see also King v. Iowa Dep’t of Corrs.,
598 F.3d 1051, 1053 (8th Cir. 2010).
The HCDC Grievance Procedure clearly gives an avenue for appeals to the Sheriff.
However, the language of the HCDC Grievance Procedure indicates the appeal is optional as it
states Plaintiff “may” appeal not that he “shall” appeal. 	(ECF No. 32-2, p. 3). 	There is no
indication on the face of the HCDC Grievance Procedure that an appeal is necessary to complete
or exhaust said procedure. 	(ECF No. 32-2). 	Moreover, Plaintiff argues in his response that he
did attempt to have his grievances and requests forwarded to the Sheriff, but Defendant Tallant
blocked these attempts. 	(ECF No. 42, p. 18).
Accordingly, the Court finds genuine issue of material fact as to whether the HCDC
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.
Therefore, Plaintiff’s claims against Defendant Tallant should proceed.
1 The Court recognizes that the Defendants have accepted as “grievances,” under the HCDC
Grievance Procedure, Plaintiff’s electronically submitted grievances and inmate requests on the
KIOSK rather than written and signed grievances as required by the language of the HCDC
Grievance Procedure. 	(ECF No. 32-2, pp. 2-3). 	Accordingly, the Court will also not distinguish
between these submissions.
Case 4:23-cv-04111-SOH-CDC Document 54 Filed 11/06/24 Page 7 of 9 PageID #:
<pageID>

8
B. 	Defendant Davis
Next, Defendants argue Plaintiff failed to file a grievance specifically related to his claim
against Defendant Davis. Plaintiff’s claim against Defendant Davis, however, is not subject to the
PLRA’s exhaustion requirement. 	While the record is unclear as to whether Defendant Davis is
an HCDC employee, or a Howard County Sheriff’s Deputy, or both, Plaintiff’s specifically claims
Defendant Davis used excessive force while arresting Plaintiff prior to his incarceration in the
HCDC. (ECF No. 8, pp. 4-5). The PLRA exhaustion requirement applies to conditions suffered
inside a jail or prison while incarcerated. 42 U.S. C. § 1997e(a). The Supreme Court previously
held preincarceration claims fall outside the Section 1997e(a) exhaustion requirement. Porter v.
Nussle, 534 U.S. 516, 529 (2002) (giving examples such as Title VII claims against a prisoner’s
preincarceration employer or Section 1983 claims against the prisoner’s arresting officer).
Accordingly, Plaintiff’s claim against Defendant Davis for excessive force during his arrest should
proceed.
IV. 	CONCLUSION
For these reasons, it is recommended Defendants Tallant and Davis’s Motion for Summary
Judgment on the limited issue of exhaustion (ECF No. 36) should 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
are reminded that objections must be both timely and specific to trigger de novo review by
the district court.
Case 4:23-cv-04111-SOH-CDC Document 54 Filed 11/06/24 Page 8 of 9 PageID #:
<pageID>

9
RECOMMENDED this 6th day of November 2024.
CHRISTY COMSTOCK
UNITED STATES MAGISTRATE JUDGE
Case 4:23-cv-04111-SOH-CDC Document 54 Filed 11/06/24 Page 9 of 9 PageID #:
<pageID>