Paschal v. Martin et al

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
GREGORY PASCHEL 	PLAINTIFF
v. 	Civil No. 4:24-CV-04034-SOH-BAB
SHERIFF LEROY MARTIN,
Columbia County, Arkansas;
JAIL ADMINISTRATOR GEAN SIEGER,
Columbia County Detention Center (“CCDC”);
CHIEF DEPUTY JERRY MANESS, 	DEFENDANTS.
MAGISTRATE’S REPORT AND RECOMMENDATION
Plaintiff Gregory Paschel, a prisoner, 1 filed the above-captioned civil rights action
pursuant to 42 U.S.C. § 1983. Plaintiff proceeds pro se and in forma pauperis. See (ECF No.
7). Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3), the Honorable Susan O. Hickey,
United States District Court Chief Judge, referred this case to the undersigned for the purpose of
making a Report and Recommendation on Defendants’ Motion for Summary Judgment for Failing
to Exhaust Administrative Remedies (“Summary Judgment Motion”). (ECF No. 15). Along
with the Summary Judgment Motion, Defendants filed a memorandum, (ECF No. 16), and a
statement of facts, (ECF No. 17), including four (4) exhibits, in support. Plaintiff has filed a
response in support of Defendants’ Motion for Summary Judgment. (ECF No. 22). Defendants
filed no reply. This matter is therefore now ripe for the Court’s consideration. For the reasons
outlined below, this Court recommends that Defendants’ Motion for Summary Judgment be
1 Plaintiff was an inmate at the Columbia County Detention Center (“CCDC”) during the events
giving rise to his claims. (ECF No. 5). At the time he filed the Amended Complaint, he was
incarcerated at the Lafayette County Detention Center (“LCDC”). Id.
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DENIED.
BACKGROUND2
Plaintiff’s Amended Complaint asserts two grounds for relief pursuant to 42
U.S.C. § 1983. (ECF No. 5). First, Plaintiff claims that the roof of the CCDC leaks, causing
mold to develop in the jail. Id., p. 5. Plaintiff contends that the mold negatively impacted the air
quality at the jail and led him to develop breathing problems. According to Plaintiff, Defendants
Martin, Sieger, and Maness knew about the poor air quality in the jail, but they did nothing to
remedy it and while Defendant Martin made statements to the Quorum Court admitting that the
jail was unsafe, he continued to house inmates at the jail. Plaintiff says that he met with medical
staff multiple times with headaches, breathing problems, anxiety, mental health concerns, and
problems sleeping, but nothing has been done to remedy the problems. Plaintiff identifies
Defendants Martin, Sieger, and Maness as defendants in their official and individual capacities.
Second, Plaintiff says that from May 25, 2023, to March 8, 2024, he was denied medical
care. Id., p. 6. According to Plaintiff, he submitted multiple grievances requesting medical
attention for the breathing problems he was experiencing. When the doctor did not adequately
treat his conditions, Plaintiff says that he addressed his complaint about the doctor to Defendant
Sieger, who told him that there “was nothing wrong with [him].” Id. Plaintiff claims that when
he told Defendant Sieger that he needed to be seen by medical staff for his health problems, she
denied him medical care. Plaintiff says that he continues to experience breathing problems.
Plaintiff does not specify the capacity in which he is suing Defendant Sieger. Id., p. 7. Plaintiff
2 This section does not endeavor to describe every docket entry, only those relevant to the Court’s
consideration of the Defendants’ Motion for Summary Judgment.
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requests compensatory and punitive damages. Id., p. 9.
Upon preservice review of Plaintiff’s Amended Complaint pursuant to 28
U.S.C. § 1915A(a), this Court ordered that the Amended Complaint be served on Defendants
Martin, Seiger, and Maness. (ECF No. 10). 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 administrative remedies in accordance with 42 U.S.C. § 1997e(a)
by August 12, 2024, or promptly file a notice informing the Court and Plaintiff that they did not
intend to pursue that affirmative defense at trial. (ECF No. 14). On July 23, 2024, Defendants
filed a Motion for Summary Judgment for Failure to Exhaust Administrative Remedies, arguing
that while Plaintiff submitted a grievance outlining the claims in his Amended Complaint, he did
not appeal Defendant Sieger’s response to that grievance, contrary to the CCDC’s grievance
procedure. (ECF No. 15). Defendants submitted a memorandum and statement of facts,
including four exhibits, in support of their motion. (ECF Nos. 16-17).
This Court then ordered Plaintiff to respond to Defendants’ Motion for Summary Judgment
by August 13, 2024, failing which this matter would be subject to dismissal for failure to prosecute.
(ECF No. 18). That Order also included instructions on how to respond. Id. On August 8,
2024, Plaintiff requested additional time to respond. (ECF No. 19). This Court granted
Plaintiff’s request that same day and ordered Plaintiff to respond by September 13, 2024. (ECF
No. 20). When that deadline passed with no response from Plaintiff, this Court ordered Plaintiff
to show cause why this matter should not be dismissed for failure to comply with court orders.
(ECF No. 21). Plaintiff’s show cause response was due October 9, 2024. Id. On October 8,
2024, Plaintiff submitted a response in opposition to Defendants’ Motion for Summary Judgment.
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(ECF No. 22). As the Court understands it, Plaintiff asserts that he submitted a grievance on his
claims before initiating this action. Id. He also requests appointment of counsel. Id.
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.
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 following facts are undisputed: The CCDC grievance policy provides that “detainees
shall have the opportunity to present written grievances without punishment. Written grievances
shall be promptly investigated, promptly answered in writing, and if legitimate, satisfactorily
resolved.” (ECF No. 17-4, p. 1). The CCDC grievance procedure reads, in pertinent part, as
follows:
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a. Form
(1) Forms are provided by the jailer and are picked up once a
day.
(2) Any jailer will provide, upon request from any detainee, a
grievance form and a pencil. This occurrence will be
limited to once a day.
b. Substance
(3) The detainee must clearly describe all facts and all requests.
(4) Grievance forms will be picked up once a day.
c. Delivery
(5) The grievance is given to any staff member for delivery
directly to the Sergeant on duty without alteration or undue
delay.
d. Review
(6) The ranking officer on duty reviews grievances immediately
upon receipt to determine urgency.
e. Resolution
(7) Absent an emergency, the grievance is investigated and, if
valid, resolved within a reasonable time.
(8) Valid emergencies receive immediate attention.
(9) When possible, the ranking officer on duty answers and
resolves the grievance.
f. Response
(10) 	Whether with or without merit, the grievant is
informed of the disposition of the grievance, in writing,
within ten working days of the day the grievance is received.
(11) 	Emergency grievances receive a response within 48
hours of the time the grievance is received.
(12) 	The factual basis for the disposition is stated in the
response.
g. Appeals
(13) 	The grievant may appeal any response or lack of
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response to the sheriff, who shall respond in writing.
Appeals to the sheriff may be delivered in the same manner
as above or may be mailed to the sheriff or to a third party
for delivery to the sheriff.
(14) 	If for any reason a detainee fears use of the grievance
procedures, the detainee’s grievance may be presented to the
sheriff or jail administrator as an appeal.
(ECF No. 17-4) (emphasis added).
Plaintiff was booked into the Columbia County Detention Center on May 24, 2023. (ECF
No. 17-2, p. 1). On September 5, 2023, Plaintiff submitted the following grievance:
I'm being subjected to cruel and unusual punishment, pain
and suffering, and medical malpractice, and negligence at the
Columbia County Detention facility. For approximately
three(3)months I have been housed in a Pod without proper
ventilation with mold build up that has been having an adverse affect
on my breathing conditions. I placed a sick call in to the medical
personnel here and as a result, he (medical personnel) informed me
that he noticed that my breathing was compromised possibly by
congestion of the lungs and that my blood pressure was high. He did
not properly examine my health conditions to get a definite
determination of the root cause of my condition and insisted to
prescribe medication to treat the symptoms rather than the root
cause. Following the doctor visit I never recieved any medication or
treatment for my breathing conditions in which these conditions
persist. I would like to have this grievance exhausted through the
chain of commands so I can go to the next step in resolving the
improper treatment and poor conditions of confinement i'm being
subjected to.
(ECF No. 17-3, p. 16). On September 7, 2023, Defendant Sieger responded to this grievance,
saying, “The building was extensively test and there was no harmful mold found in the building.
I will advise my chain of command about your displeasure with the doctor.” Id. Plaintiff did not
appeal this response. See (ECF No. 17-1, p. 2).
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ANALYSIS
Section 1997e(a) of the Prison Litigation Reform Act (PLRA) “requires a prisoner to
exhaust ‘such administrative remedies as are available’ before suing over prison conditions.”
Booth v. Churner, 532 U.S. 731, 733 (2001). This requirement is mandatory. See Chelette v.
Harris, 229 F.3d 684, 687 (8th Cir. 2000). But “[i]f an inmate fails to exhaust one or more
discrete claims raised in the § 1983 complaint, the PLRA requires only that the unexhausted claim
or claims be dismissed—it does not require that the complaint be dismissed in its entirety.” Abdul-
Muhammad v. Kempker, 486 F.3d 444, 446 (8th Cir. 2007) (citing Jones v. Bock, 549 U.S. 199
(2007)).
In determining whether the plaintiff has first exhausted his administrative remedies, courts
look to the prison’s grievance procedure. Id. “[T]he degree of specificity required in a prison
grievance ‘will vary from system to system and claim to claim, but it is the prison’s requirements,
and not that PLRA, that define the boundaries of proper exhaustion.’” Id. (quoting Jones, 549 U.S.
at 218)) (emphasis added). Thus, to satisfy Section 1997(e)(a)’s exhaustion requirement, inmates
must file grievances in accordance with the institution’s policies and procedures. See Washington
v. Uner, 273 F. App’x 575, 577 (8th Cir. 2008) (citing Woodford v. Ngo, 548 U.S. 81, 91-92
(2006)).
Here, the Defendants argue that because the CCDC grievance policy includes a provision
on appeals and it is undisputed that Plaintiff did not appeal Defendant Sieger’s response to his
grievance, Plaintiff failed to properly exhaust his administrative remedies. (ECF No. 16, p. 5).
For his part, as the Court understands it, Plaintiff contends that he exhausted CCDC’s grievance
policy when he submitted his September 5, 2023, grievance. (ECF No. 22).
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A. The Requirements of CCDC’s Grievance Policy Are Unclear
At bottom, Defendants’ argument should fail because it is unclear what the CCDC
grievance policy requires. The official policy—that is, the one the Defendants submitted as an
exhibit—provides that upon request, a jailer will provide an inmate a grievance form and a pencil,
the policy then directs the inmate to write the substance of the grievance on the form and dictates
that jailers are to pick up those forms daily. (ECF No. 17-4). But that is not what happened here.
Plaintiff did not write his grievances on a paper form, in pencil. (ECF No. 17-3). Rather, it is
undisputed that he submitted them electronically. Id. Defendants, however, do not argue that
Plaintiff failed to exhaust his administrative remedies because he did not submit his grievances on
a paper form, in pencil, in accordance with the CCDC grievance procedure, suggesting that it is
accepted custom for inmates to submit their grievances electronically.3 (ECF No. 16, p. 5).
Further, while the Defendants argue that proper exhaustion of the CCDC grievance
procedure requires inmates to appeal the response to their grievance to the sheriff, the official
CCDC grievance procedure provides that “[a]ppeals to the sheriff may be delivered in the same
manner as above or may be mailed to the sheriff or to a third party for delivery to the sheriff.”
(ECF No. 17-4, p. 2). The procedure on “delivery,” in turn, provides that “[t]he grievance is given
to any staff member for delivery directly to the Sergeant on duty without alteration or undue
delay.” Id., p. 1. By its express terms, therefore, the appeal process appears to require inmates
to either submit an appeal, in writing, on paper, to the sergeant on duty who would then deliver it
to the sheriff or to mail (or direct someone else to mail) the appeal to him. These official
3 Indeed, Defendants argue that the CCDC “has a computer kiosk system in place for inmates to
submit requests and grievances, which results in accurate record keeping.” (ECF No. 16, p. 4).
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requirements are directly at odds with the Defendants’ argument that the CCDC “has a computer
kiosk system in place for inmates to submit requests and grievances.” (ECF No. 16, p. 4). In
sum, the Defendants interpret their own grievance procedure as requiring inmates to submit
grievances electronically on the CCDC kiosk system. This interpretation is at variance with the
plain language of the CCDC grievance policy. Accordingly, this Court finds that there is a
genuine issue of material fact about what that policy requires.
B. Defendants Have Not Established that the CCDC Grievance Policy is “Available”
The Court’s finding of a material fact dispute concerning the substance of the CCDC’s
grievance policy is sufficient to recommend denying Defendants’ Motion for Summary Judgment.
That said, while “Section 1997e(a) says nothing about a prisoner’s subjective beliefs, logical or
otherwise, about the administrative remedies that might be available to him,” Chelette, 229 F.3d
at 688, as the Supreme Court 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,
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incapable of use.” Id. Finally, an administrative procedure is unavailable “when prison
administrators thwart inmates from taking advantage of a grievance process through machination,
misrepresentation, or intimidation.” Id. at 644.
The relevant question, therefore, is what “remedies” were available to Plaintiff. See Smith
v. Andrews, 75 F.4th 805, 809 (8th Cir. 2023). The Defendants have the burden to plead and
prove that an inmate failed to exhaust available administrative remedies. Foulk v. Charrier, 262
F.3d 687, 697 (8th Cir. 2001). Here, the Defendants assert no facts suggesting that inmates
(Plaintiff included) have access to—and thus the opportunity to become aware of—the CCDC
grievance procedure. See (ECF No. 17). While Defendants assert that Plaintiff used the
grievance procedure by submitting grievances on the CCDC kiosk, (ECF No. 17-1), this evidence
does not establish that the grievance policy was accessible to Plaintiff to read (either on the kiosk
or available to inmates in printed form somewhere at the CCDC), particularly considering that
submitting grievances electronically on the kiosk is at variance with what the official CCDC
grievance procedure requires. See Townsend v. Murphy, 898 F.3d 780, 783-84 (8th Cir. 2018)
(concluding that defendant’s misrepresentation of the grievance policy, combined with plaintiff’s
assertion that he was denied access to the law library, which contained the only available copy of
the grievance procedure, sufficient to establish that the prison grievance procedure was unavailable
to Plaintiff). Accordingly, on this record, the Court finds that Defendants have not established
that the CCDC grievance procedure is capable of use to obtain relief because there are no facts
indicating that the procedure itself is accessible to inmates so that they can become aware of its
requirements should they wish to pursue a grievance. Defendants’ Motion for Summary
Judgment for Failure to Exhaust Administrative Remedies, (ECF No. 1), should therefore be
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DENIED.
C. Plaintiff’s Request for Appointment of Counsel
Plaintiff also requested appointment of Counsel in his response to Defendants’ Motion for
Summary Judgment. He subsequently filed a separate Motion to Appoint Counsel. (ECF No.
23). Plaintiff’s request for counsel will be addressed in a separate Order.
CONCLUSION
In sum and for all the reasons outlined above, therefore, IT IS RECOMMENDED THAT
Defendants’ Motion for Summary Judgment for Failure to Exhaust Administrative Remedies,
(ECF No. 15), 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.
STATUS OF REFERRAL: Remains referred.
DATED this 16th day of December 2024.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE
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