4:24-cv-04102•McElroy v. Miners et al
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1 IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS TEXARKANA DIVISION JEREL McELROY, PLAINTIFF v. Civil No. 4:24-CV-04102-SOH-CDC WARDEN JOHN K. MINERS, Southwest Arkansas Community Correction Center (“SWACCC”); MAJOR VICKY WALKER, SWACCC; LIEUTENANT SHARITA DEDMON; SWACCC; JOHN AND JANE DOE EMPLOYEES OF THE SWACCC MEDICAL DEPARTMENT; DISCIPLINARY HEARING COMMITTEE (DHC); and TINA HODGE (SOD) (Staff Over Discipline), DEFENDANTS. MAGISTRATE’S REPORT AND RECOMMENDATION Plaintiff Jerel McElroy1 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 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. 28). Along with the Summary Judgment Motion, Defendants filed a memorandum, (ECF No. 29), a statement of facts, (ECF No. 30), and four (4) exhibits, see (ECF No. 28), in support. Plaintiff has filed a response in opposition to Defendants’ Motion for Summary Judgment. (ECF No. 33). Defendants have filed a reply. (ECF No. 34). This motion is therefore now ripe for the Court’s consideration. 1 Plaintiff was in custody at the Southwest Arkansas Community Correction Center (“SWACCC”) during the events giving rise to his claims. (ECF No. 11). He is no longer incarcerated. See (ECF No. 27). Case 4:24-cv-04102-SOH Document 35 Filed 10/20/25 Page 1 of 12 PageID #: <pageID>
2 For the reasons outlined below, this Court recommends that Defendants’ Motion for Summary Judgment be GRANTED. BACKGROUND2 Because Plaintiff was a prisoner during the events giving rise to his claims and those claims concern the conditions of his confinement, Plaintiff’s complaint was subject to preservice review pursuant to 28 U.S.C. § 1915A(a). Upon that review, United States Magistrate Judge Barry Bryant ordered Plaintiff to submit an amended complaint, noting technical problems with the original complaint—namely, the original complaint was difficult to decipher. (ECF No. 3). After submitting an amended complaint as directed, Plaintiff requested leave to further amend the complaint. (ECF No. 9). That motion was granted. (ECF No. 10). Plaintiff subsequently submitted the Second Amended Complaint (“SAC”), which remains the operative pleading in this matter. (ECF No. 11). The SAC asserts several, wide-ranging allegations against Southwest Arkansas Community Corrections Center (“SWACCC”) officials. He claims that he was subject to unconstitutional conditions of confinement, including mold and asbestos, that officials retaliated against him by placing him in segregation without due process of law, that officials failed to provide him with constitutionally adequate medical care for a UTI, and that he was not allowed access to complaint or grievance forms. See (ECF No. 11). Upon preservice review of the SAC pursuant to 28 U.S.C. § 1915A(a), this Court recommended that the following claims proceed: 1. Plaintiff’s official capacity claim against Defendant Minors for the purportedly unconstitutional conditions of SWACCC, specifically Plaintiff’s exposure to black mold, asbestos, and a bug infestation (claim one); 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. Case 4:24-cv-04102-SOH Document 35 Filed 10/20/25 Page 2 of 12 PageID #: <pageID>
3 2. Plaintiff’s individual capacity claim against Defendant Walker for placing him on “lockdown” on June 7, 2024, without due process of law (claim two); 3. Plaintiff’s individual capacity claim against Defendant Walker for retaliating against him by placing him on “lockdown” on June 7, 2024 (claim two); 4. Plaintiff’s individual capacity claim against Defendant Dedmon for retaliating against him by placing him on lockdown on August 24, 2024 (claim three); 5. Plaintiff’s individual capacity claim against Defendant Dedmon for placing him in lockdown without due process of law on August 24, 2024 (claim three); and 6. Plaintiff’s claims against Defendant Hodge in her individual capacity for retaliating against him by placing him in segregation on October 24, 2024, without due process of law (claim six). (ECF No. 12). This Court further recommended that all other claims be dismissed without prejudice for failure to state a plausible claim for relief pursuant to 28 U.S.C. § 1915A(b)(1).3 Consistent with these recommendations, this Court then ordered service of the SAC on Defendants Dedmon, Hodge, Miners, and Walker (“SWACCC Defendants”). (ECF No. 13). The SWACCC Defendants filed their Answer, denying the allegations. (ECF No. 19). That same day, this Court ordered the SWACCC 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) before initiating this action by April 29, 2025, or promptly file a notice stating that they did not intend to pursue failure to exhaust as an affirmative defense at trial. (ECF No. 20). After requesting (and receiving) an extension of time to file a motion for summary judgment, the SWACCC Defendants filed a Motion for Summary Judgment, including a memorandum, statement of facts, and four exhibits in support, arguing that the undisputed record 3 Plaintiff timely objected to these recommendations. See (ECF No. 16). Those objections remain pending. Case 4:24-cv-04102-SOH Document 35 Filed 10/20/25 Page 3 of 12 PageID #: <pageID>
4 shows that Plaintiff failed to properly exhaust his administrative remedies with respect to any of his claims before initiating this action. See (ECF No. 28-30). The SWACC Defendants’ exhibits in support include a grievance form submitted by Plaintiff on August 22, 2024, that was rejected and returned to him because Plaintiff did not first fill out a “complaint form.” (ECF No. 28-4). This Court then ordered Plaintiff to respond to this motion and provided instructions on how to respond. (ECF No. 31). Plaintiff filed his response in opposition to the SWACCC Defendants’ Motion for Summary Judgment, evidently conceding that he did not exhaust his administrative remedies but claiming that SWACCC officials thwarted his efforts to pursue the SWACCC grievance procedure. See (ECF No. 33). Plaintiff’s response includes copies of disciplinary reports, see, e.g., (ECF No. 33-3), and an “Arkansas Community Correction Complaint Form for Residents,” dated November 4, 2024, see (ECF No. 33-2). The SWACCC Defendants filed a reply to this response, reiterating their position that Plaintiff did not exhaust his administrative remedies with respect to any of his claims and arguing that his contention that he was prevented from pursuing his administrative remedies amounts to nothing more than “conclusory statements and farfetched allegations.” (ECF No. 34). 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. Case 4:24-cv-04102-SOH Document 35 Filed 10/20/25 Page 4 of 12 PageID #: <pageID>
5 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 A. Summary Judgment Record The SWACCC Defendants’ Motion for Summary Judgment includes a sworn declaration from Arundrell Chatman, (ECF No. 28-1); the Arkansas Community Correction (“ACC”) policy on grievance procedures, (ECF No. 28-2); Plaintiff’s grievance history, (ECF No. 28-3); and an ACC Grievance Form dated August 22, 2024, (ECF No. 28-4). Plaintiff’s response in opposition does not dispute any of these facts. This Court, therefore, considers these facts undisputed for the purposes of the SWACCC Defendants’ Motion for Summary Judgment. For his part, Plaintiff’s response includes a self-styled 9-page unsworn “brief;” an excerpt from his pleading, (ECF No. 33-1 at 2); portions of his disciplinary proceedings, (ECF No. 33-1 at 1, 3, 4-6; ECF No. 33-2 at 3; ECF No. 33-3); an ACC Complaint Form dated November 4, 2024, (ECF No. 33-2); an ACC Grievance Form dated August 22, 2024, (ECF No. 33-4); ACC Resident Request Forms, (ECF No. 33-5); the Arkansas Board of Corrections Grievance Procedure, (ECF No. 33-5 at 3); and the Arkansas Board of Corrections Segregation Procedure, (ECF No. 33-5, at 4). Case 4:24-cv-04102-SOH Document 35 Filed 10/20/25 Page 5 of 12 PageID #: <pageID>
6 Plaintiff’s “brief” is neither signed under penalty of perjury, nor notarized. See (ECF No. 33). This Court, therefore, views the brief as argument, not evidence. Further, Plaintiff’s response includes the State of Arkansas, Board of Corrections: Grievance Procedures for Offenders, (ECF No. 33-5), and the Administrative Regulation, State of Arkansas, Board of Corrections: Segregation, id. at 4, but Plaintiff has not asserted any evidence suggesting that either policy was in effect at the time of the events giving rise to his claims or that, even if they were in effect, that they applied to his claims. The Court, therefore, concludes that this material is not relevant. Finally, Plaintiff includes copies of his disciplinary proceedings. (ECF No. 33-1 at 1, 3, 4-6; ECF No. 33-2 at 3; ECF No. 33-3). To the extent that these documents are relevant to the merits of Plaintiff’s claims, the sole issue before the court on summary judgment is whether Plaintiff properly exhausted his administrative remedies before initiating this matter. Plaintiff’s disciplinary records are therefore also not relevant to the issue currently before the Court. That said, the Court will consider the verified SAC in determining whether any material fact disputes preclude summary judgment. See Roberson v. Hayti Police Dept., 241 F.3d 992, 994-95 (8th Cir. 2001) (“A plaintiff’s verified complaint is the equivalent of an affidavit for purposes of summary judgment . . . the facts alleged in a verified complaint need not be repeated in a responsive affidavit in order to survive a summary judgment motion.”) (internal citations omitted). And the Court also considers the ACC Complaint Form dated November 4, 2024, (ECF No. 33-2), the ACC Grievance Form dated August 22, 2024, (ECF No. 33-4), and the ACC Resident Request Forms, (ECF No. 33-5)—not for the truth of the matter asserted, but for the fact that Plaintiff submitted those forms on those days. Case 4:24-cv-04102-SOH Document 35 Filed 10/20/25 Page 6 of 12 PageID #: <pageID>
7 B. Undisputed Material Facts Given this record, the following facts are undisputed: During the events giving rise to Plaintiff’s claims, Administrative Directive 15-08 governed the SWACCC grievance and appeal process. See (ECF No. 28-1). That process involves two steps (and four stages). Id. The first step involves two stages: the informal complaint and the formal grievance. Id. After completing step one, to exhaust the grievance procedure, the SWACCC resident must proceed to step two, which involves an appeal to the center supervisor and then an appeal to the deputy director for residential services. Id. At step one, the SWACCC resident must submit an informal “Complaint Form for Residents.” Id. If the problem is not resolved informally, or if the resident receives no response, then the resident must submit a written formal grievance on a “Grievance Form for Residents” within five days of the event giving rise to the grievance. Id. Unless the time is extended, the grievance officer or designee must respond to the grievance within 30 days. Id. Upon receipt of this response, the resident is entitled to appeal to the center supervisor. Id. Within five days of receipt of the center supervisor’s decision, the resident is entitled to appeal to the deputy director. Id. The deputy director’s decision is final and marks the conclusion of the grievance process. Id. The “Complaint Form for Residents” and the “Grievance Form for Residents” are available from the law library. See (ECF No. 28-2 at 3). Residents “may file grievances by dropping a completed grievance form in the locked grievance boxes, which are located in accessible places throughout the centers.” Id. at 2. Plaintiff did not properly exhaust this process prior to filing the SAC on November 19, 2024. Id. On August 22, 2024, Plaintiff submitted an informal complaint on a grievance form, Case 4:24-cv-04102-SOH Document 35 Filed 10/20/25 Page 7 of 12 PageID #: <pageID>
8 asserting that an SWACCC official (not named as a defendant to this action) gave him a grievance form to fill out about his access to the news, and when he gave it back to her, she was disrespectful and called him names. (ECF No. 28-4). This grievance form was returned to Plaintiff because he had not first completed the first stage of step one by submitting a “complaint form.” See (ECF No. 28-1); (ECF No. 28-4). On November 4, 2024, Plaintiff filled out a form entitled “Arkansas Community Correction,” describing his concerns for his safety at the SWACCC. (ECF No. 33-2 at 1). But the section of the form for a response by staff is blank. Id. Thus, it is not clear if Plaintiff submitted the form to staff for review. 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 1997e(a)’s exhaustion requirement, inmates Case 4:24-cv-04102-SOH Document 35 Filed 10/20/25 Page 8 of 12 PageID #: <pageID>
9 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)). The SWACCC Defendants assert, and Plaintiff does not dispute, that he failed to initiate, let alone complete, the SWACCC grievance procedure with respect to any of his claims against any of the Defendants. See (ECF No. 30); (ECF No. 33). It is therefore undisputed that Plaintiff did not first exhaust his administrative remedies before initiating this lawsuit. But this finding does not end the Court’s analysis. 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). To this end, the Supreme Court has described three circumstances in which an administrative remedy may be unavailable: “(1) when the procedure operates as a simple dead end; (2) when the administrative scheme is so opaque that it becomes, practically speaking, incapable of use; and (3) when prison administrators deliberately thwart prisoner attempts to use the process.” Id. (quoting Ross v. Blake, 578 U.S. 632, 643 (2016)) (internal quotations omitted). In this case, Plaintiff repeatedly asserts in his verified SAC that SWACCC officials denied him access to the grievance procedure by refusing to provide him with the appropriate form(s). See, e.g., (ECF No. 11 at 7). He repeats those assertions in his unsworn brief. (ECF No. 33). In reply, the SWACCC Defendants describe these assertions as “conclusory” and “farfetched.” (ECF No. 34). On summary judgment, therefore, the court considers whether there is a material Case 4:24-cv-04102-SOH Document 35 Filed 10/20/25 Page 9 of 12 PageID #: <pageID>
10 fact dispute about whether prison officials “thwarted” Plaintiff’s efforts to pursue his administrative remedies (circumstance three), thus rendering those remedies “unavailable” to him. See Smith, 75 F.4th at 809 (“Under the PLRA, only a plaintiff’s failure to exhaust an available remedy can bar his claim.”) (emphasis in the original). The SWACCC Defendants assert that the SWACCC grievance procedure is posted on employee and resident bulletin boards throughout the facility and available at the facility library. (ECF No. 28-1 at 3); see also (ECF No. 28-2 at 2). Moreover, the SWACCC grievance procedure provides that the facility library provides the relevant “complaint” and “grievance” forms, (ECF No. 28-2 at 3), and that residents file grievances by dropping a completed form in a locked grievance box which are located in accessible places throughout the facility, id. at 2. For his part, in response, Plaintiff asserts no specific facts suggesting that, contrary to policy, the facility law library did not provide the relevant forms, or that he did not have access to the library or to one of the locked grievance boxes during the relevant timeframe. See (ECF No. 11). To be sure, Plaintiff claims that he was placed in segregation on June 7, 2024, July 9, 2024, and August 28, 2024, and that he was not provided access to complaint and grievance forms while housed in segregation. See id. at 6. But he provides no facts detailing how his access to these forms was denied. Put differently, he does not claim that he was not provided access to the facility library while in segregation and thus unable to obtain the required forms. Further, the SWACCC grievance policy provides that residents may submit a grievance within 5 days of the events giving rise to the grievance, (ECF No. 28-2 at 3), and Plaintiff asserts no facts establishing a reasonable inference that he was denied access to the facility library (and thus the appropriate forms) and to the relevant “locked box” during that entire 5-day window. See Perry v. Precythe, 121 F.4th 711, Case 4:24-cv-04102-SOH Document 35 Filed 10/20/25 Page 10 of 12 PageID #: <pageID>
11 715 (8th Cir. 2024) (concluding that prison grievance procedure was unavailable to plaintiff because he was in a coma and thus unable to file a timely grievance and the prison grievance procedure did not allow for late filings). Instead, Plaintiff’s claim that officials prevented him from accessing the grievance procedure relies exclusively on the assumption that he must depend on SWACCC officials to obtain the appropriate forms and to initiate the grievance procedure.4 See (ECF No. 11); (ECF No. 33). But this assumption runs contrary to SWACCC policy and, as described in detail above, Plaintiff fails to assert any facts establishing a genuine issue for trial whether that policy was available to him or capable of use during the relevant timeframe. Accordingly, on this record, Defendants’ Motion for Summary Judgment for Failure to Exhaust Administrative Remedies, (ECF No. 28), should therefore be GRANTED, and this matter be DISMISSED WITHOUT PREJUDICE. 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. 28), be GRANTED and this matter be DISMISSED WITHOUT PREJUDICE. 4 Plaintiff, for example, argues that he submitted grievances directly to an official named Chapman, but Chapman did not respond to his grievances. See (ECF No. 33 at 3). This claim, however, ignores the point that SWACCC policy requires him to file a grievance on the appropriate form, which can be found in the facility law library, in one of the “locked” grievance boxes. See (ECF No. 28-2). The fact that an official purportedly did not respond to Plaintiff’s grievance when he did not follow the SWACC grievance procedure is not relevant to the question of whether that procedure was “available” to him during the relevant timeframe. Because Plaintiff asserts no facts suggesting that the SWACCC grievance procedure was not capable of use—either because the grievance forms were not available at the facility law library or because he did not have access to the law library or the “locked grievance box” within 5 days of the events giving rise to the grievance—Defendants’ Motion for Summary Judgment should be granted. Case 4:24-cv-04102-SOH Document 35 Filed 10/20/25 Page 11 of 12 PageID #: <pageID>
12 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: No longer referred. DATED this 20th day of October 2025. /s/ Christy Comstock CHRISTY COMSTOCK UNITED STATES MAGISTRATE JUDGE Case 4:24-cv-04102-SOH Document 35 Filed 10/20/25 Page 12 of 12 PageID #: <pageID>
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