Patterson v. Tims
MEMORANDUM AND ORDER granting 21 Defendants' Motion for Summary Judgment; dismissing Plaintiff's 2 Complaint against Defendants Budnik and Rogers without prejudice and dismissing Plaintiff's 2 Complaint against Defendant Tims with prejudice. An appropriate Judgment shall accompany this Memorandum and Order. Signed by Magistrate Judge Jerome T. Kearney on 10/08/2014. (rhm)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
ROGER TIMS, et al.
MEMORANDUM AND ORDER
Plaintiff Hayward Patterson is a state inmate incarcerated at the Varner Unit of the Arkansas
Department of Correction (ADC).1 He filed this pro se action pursuant to 42 U.S.C. § 1983, alleging
retaliation and racial discrimination against Defendants Tims, Rogers, and Budnik, with respect to
incidents which occurred while Plaintiff was housed at the Grimes Unit of the ADC.
This matter is before the Court on the Defendants’ Motion for Summary Judgment (Doc. No.
21). Plaintiff has not filed a Response, despite the Court’s September 17, 2014 Order directing such
(Doc. No. 24).2
According to his Amended Complaint, Defendant Tims signed a grievance submitted by
Plaintiff on November 29, 2012, but never provided Plaintiff with a copy (Doc. No. 5, p. 4.) Then
on August 8, 2013, Tims again refused to give Plaintiff a copy of a grievance he signed “with a
malicious and discriminatory behavior act of retaliation against me.” (Id.) Later, Defendant Rogers
Although Plaintiff has not notified the Court of his release from prison, he is no longer
listed as an inmate on the ADC website.
The Court cautioned Plaintiff that failure to respond could result in the dismissal without
prejudice of his complaint, for failure to prosecute, pursuant to Local Rule 5.5(c)(2). However,
the September 17, 2014, Order mailed to Plaintiff at his last-known address was returned to the
Court as undeliverable on September 23, 2014 (Doc. No. 25).
informed Plaintiff he dismissed a disciplinary charge Tims wrote against him. (Id.) Plaintiff claims
Tims’ actions were discriminatory and intended to deprive him access to the grievance process. (Id.,
p. 5.) He also claims that Defendant Budnik was responsible for failing to confront Tims, and
therefore, failed to protect Plaintiff from Tims’ malicious behavior. (Id.) Finally, he claims
Defendant Rogers, as Tims’ supervisor, is liable and responsible for the continuous harassment and
retaliation he suffered. (Id.)
Pursuant to FED.R.CIV.P. 56(a), summary judgment is appropriate if the record shows that
there is no genuine issue of material fact and the moving party is entitled to judgment as a matter
of law. See Dulany v. Carnahan, 132 F.3d 1234, 1237 (8th Cir. 1997). “The moving party bears
the initial burden of identifying ‘those portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, which it believes
demonstrate the absence of a genuine issue of material fact.’” Webb v. Lawrence County, 144 F.3d
1131, 1134 (8th Cir. 1998), quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (other
citations omitted). “Once the moving party has met this burden, the non-moving party cannot
simply rest on mere denials or allegations in the pleadings; rather, the non-movant ‘must set forth
specific facts showing that there is a genuine issue for trial.’” Id. at 1135. Although the facts are
viewed in a light most favorable to the non-moving party, “in order to defeat a motion for summary
judgment, the non-movant cannot simply create a factual dispute; rather, there must be a genuine
dispute over those facts that could actually affect the outcome of the lawsuit.” Id.
In addition, “[a]ll material facts set forth in the statement (of undisputed material facts) filed
by the moving party...shall be deemed admitted unless controverted by the statement filed by the
non-moving party....” Local Rule 56.1, Rules of the United States District Court for the Eastern and
Western Districts of Arkansas. Failure to properly support or address the moving party’s assertion
of fact can result in the fact considered as undisputed for purposes of the motion. FED.R.CIV.P.
56(e)(2). In this case, in light of Plaintiff’s failure to respond to the Motion and to offer a dispute
of the facts asserted by Defendants, the Court finds that the facts set forth by Defendants are
undisputed for purposes of the Motion, and that summary judgment should be granted as a matter
of law. See FED.R.CIV.P. 56(e)(2), (3).
Official Capacity Immunity
First, the Court finds Plaintiff’s monetary claims against Defendants in their official
capacities should be dismissed pursuant to sovereign immunity. Will v. Michigan Dept. Of State
Police, 491 U.S. 58, 65 (1989); Murphy v. State of Arkansas, 127 F.3d 750, 755 (8th Cir. 1997).
Next, the Court agrees that Plaintiff’s claims against Defendants Budnik and Rogers should
be dismissed, for failure to exhaust his administrative remedies, as required by the ADC grievance
policy and the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e.
According to the
No 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), unconst’l on other grounds, Siggers-El v. Barlow, 433 F.Supp.2d 811, 813
(E.D. Mich. 2006). The courts have interpreted this provision as a mandatory requirement that
administrative remedies be exhausted prior to the filing of a lawsuit. In Booth v. Churner, the
United States Supreme Court held that in enacting the PLRA, “Congress has mandated exhaustion
clearly enough, regardless of the relief offered through administrative procedures.” 532 U.S. 731,
741 (2001). In addition, the United States Court of Appeals for the Eighth Circuit held, “[t]he
statute’s requirements are clear: If administrative remedies are available, the prisoner must exhaust
them. Chelette failed to do so, and so his complaint must be dismissed, for ‘we are not free to
engraft upon the statute an exception that Congress did not place there.’” Chelette v. Harris, 229
F.3d 684, 688 (8th Cir. 2000) (quoting Castano v. Nebraska Dep’t of Corrections, 201 F.3d 1023,
1025 (8th Cir. 2000)). In Johnson v. Jones, the Court held that “[u]nder the plain language of
section 1997e(a), an inmate must exhaust administrative remedies before filing suit in federal
court....If exhaustion was not completed at the time of filing, dismissal is mandatory.” 340 F.3d 624,
627 (8th Cir. 2003) (emphasis in original.) Finally, in Jones v. Bock, the United States Supreme
Court held that while the PLRA itself does not require that all defendants be specifically named in
an administrative grievance, “it is the prison’s requirements, and not the PLRA, that define the
boundaries of proper exhaustion.” 549 U.S. 199, 218 (2007).
According to the affidavit of Kenric Williams, inmate grievance coordinator, prior to filing
this action Plaintiff did not file a grievance against Defendants Rogers and Budnik concerning the
issues raised in his complaint. (Doc. No. 21-2, p. 3.) Furthermore, only one of the grievances filed
by Plaintiff concerning Defendant Tims’ conduct was properly exhausted and decided on the merits.
(Id., p. 4.) In GR-13-0610, Plaintiff complained Tims improperly processed the November 29, 2012
grievance. (Id., Doc. No. 21-4.) However, that grievance was rejected as untimely and not
responded to on the merits. (Id.) In GR-13-1869, Plaintiff complained that Tims violated ADC
policy by issuing him a disciplinary violation. (Doc. No. 21-2, p. 4; Doc. No. 21-5.) This grievance
was rejected because disciplinary matters are not grievable. (Id.) Similarly, Plaintiff complained
about Defendant Tims in GR-13-1876, which also was rejected as involving a non-grievable matter.
(Doc. No. 21-2, p. 4; Doc. No. 21-6.)3
The only properly-exhausted grievance filed by Plaintiff against Defendant Tims was GR-131568, where Plaintiff complained that Tims discriminated against him by not providing him with
a copy of a grievance form. (Doc. No. 21-2, p. 5; Doc. No. 21-7.)
Although Plaintiff also
complained in his deposition testimony that Tims failed to process his legal mail on June 21, 2013,
he never filed a grievance about that issue, and thus, failed to properly exhaust. (Doc. No. 21-2, p.
As noted above, the PLRA requires that prior to filing a lawsuit, an inmate must completely
exhaust his administrative remedies through the appropriate grievance procedures. The ADC
grievance procedure in effect at the time of these incidents was AD 12-16, which clearly directs
inmates to specifically name each individual involved, and instructs that grievances must be
exhausted prior to filing a lawsuit. (Doc. No. 21-2, p. 3; Doc. No. 21-3, pp. 5, 18). Therefore,
Plaintiff’s failure to name Defendants Budnik and Rogers (or even to refer to them in the context
of the allegations at issue in this complaint) in a properly-exhausted grievance, means that the
present claims against them must be dismissed, for failure to exhaust.
The Court agrees that Defendant Tims is protected from liability by qualified immunity,
which protects officials who act in an objectively reasonable manner. It may shield a government
official from liability when his or her conduct does not violate “clearly established statutory or
constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982). Qualified immunity is a question of law, not a question of fact. McClendon
Defendants note that a separate disciplinary appeals process is to be used to grieve
disciplinary charges/convictions. (Doc. No. 21-2, p. 5.)
v. Story County Sheriff's Office, 403 F.3d 510, 515 (8th Cir. 2005). Thus, issues concerning
qualified immunity are appropriately resolved on summary judgment. See Mitchell v. Forsyth, 472
U.S. 511, 526 (1985) (the privilege is “an immunity from suit rather than a mere defense to liability;
and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.”).
To determine whether a defendant is entitled to qualified immunity, the courts generally
consider two questions: (1) whether the facts alleged or shown, construed in the light most favorable
to the plaintiff, establish a violation of a constitutional or statutory right; and (2) whether that right
was so clearly established that a reasonable official would have known that his or her actions were
unlawful. Pearson v. Callahan, 555 U.S. 223, 232 (2009).4 Defendants are entitled to qualified
immunity only if no reasonable fact finder could answer both questions in the affirmative. Nelson
v. Correctional Medical Services, 583 F.3d 522, 528 (8th Cir. 2009).
Having reviewed the allegations set forth in Plaintiff’s Amended Complaint and the exhibits
and briefs presented by Defendants, and absent a response or additional facts or evidence from the
Plaintiff, the Court finds that Defendant Tims is entitled to qualified immunity because Plaintiff fails
to establish the violation of a constitutional or statutory right. First, his allegation against Tims
based on the failure to process a grievance fails to state a constitutional claim for relief. A “[prison]
grievance procedure is a procedural right only, it does not confer any substantive right upon the
inmates....it does not give rise to a protected liberty interest requiring the procedural protections
envisioned by the fourteenth amendment.” Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993),
(quoting Azeez v. DeRobertis, 568 F.Supp. 8, 10 (N.D.Ill. 1982)). In addition, “plaintiff does not
Courts are “permitted to exercise their sound discretion in deciding which of the two
prongs of the qualified immunity analysis should be addressed first in light of the circumstances
in the particular case at hand.” Nelson, 583 F.3d at 528 (quoting Pearson v. Callahan, 555 U.S.
have a federal claim regarding how his grievances were processed, investigated, or responded to,
even if they were not done by the appropriate personnel or in accord with the policies.” Edgar v.
Crawford, No. 08-4279-CV-C-SOW, 2009 WL 3835265 *3 (W.D.Mo. 2009). “The inmate
grievance procedures are not required by the Constitution, and therefore, there is no constitutional
obligation on defendants’ part to afford plaintiff meaningful access to the internal grievance
procedure and to investigate and properly determine any such grievance.” Fowler v. Crawford, No.
07-4197-CV-C-SOW, 2009 WL 2982922 *3 (W.D.Mo. 2009).
Similarly, any allegation that Tims violated ADC policy fails to state a constitutional claim
“[T]he mere violation of a state law or rule does not constitute a federal due process
violation.” Williams v. Nix, 1 F.3d 712, 717 (8th Cir. 1992).
Next, Plaintiff’s claim that Tims discriminated against him fails to support a constitutional
claim, because he does not allege, or provide any evidence to support, that Defendant treated Tims
differently from other similarly-situated inmates. See Klinger v. Department of Corrections, 31 F.3d
727, 731 (8th Cir. 1994). While he makes the statement that Tims discriminated against him based
on race, he provides no examples of racially-biased actions. And, in his deposition testimony,
Plaintiff admits that Tims’ actions against him were probably not based on his race: “And he did
have something against me that I don’t know. And I couldn’t figure it out....Discrimination, based
on who I am. It may not be my color, but he might didn’t like my attitude, he might didn’t like the
way that I look.” (Doc. No. 21-2, p. 4.) Therefore, absent a response from Plaintiff and any other
supporting allegations and/or evidence the Court finds that no reasonable person in Defendant’s
position would believe that his actions violated Plaintiff’s constitutional rights.
In addition, any claim based on retaliation also fails because Plaintiff provides no facts to
support his claim that Tims had a motive for retaliating against him. A claim of retaliation must be
based upon an allegation that the inmate was punished for engaging in constitutionally-protected
activity. Lewis v. Jacks, 486 F.3d 1025, 1028 (8th Cir. 2007). In addition, an allegation of
retaliation must “allege sufficient facts upon which a retaliatory animus could be inferred,” and must
be more than “speculative and conclusory.” Atkinson v. Bohn, 91 F.3d 1127, 1129 (8th Cir. 1996).
In this case, Plaintiff’s bare allegations that Tims retaliated against him by not processing grievances
or by filing a disciplinary charge against him (which was not processed), do not support a
constitutional claim for relief. See also Antonelli v. Tipton, where the court affirmed a pre-service
dismissal of a retaliation claim where the inmate failed to alleged sufficient facts from which a
retaliatory animus could be inferred. No. 08-3123, 2009 WL 4825169 (8th Cir. Dec. 16, 2009)
And finally, Plaintiff’s allegation that Defendant Tims harassed him fails to support a
constitutional claim for relief. “Generally, mere verbal threats made by a state-actor do not
constitute a § 1983 claim.” King v. Olmsted County, 117 F.3d 1065, 1067 (8th Cir. 1997) (quoting
Hopson v. Fredericksen, 961 F.2d 1374, 1378 (8th Cir. 1992)). In addition, the “constitution does
not protect against all intrusions on one’s peace of mind. Fear or emotional injury which results
solely from verbal harassment or idle threats is generally not sufficient to constitute an invasion of
an identified liberty interest.” King, 117 F.3d at 1067 (quoting Pittsley v. Warish, 927 F.2d 3, 7 (1st
Upon close review of the evidence in support of the Motion for Summary Judgment, the
Court finds that Defendants acted reasonably under the circumstances. No reasonable fact finder
could find that the facts alleged or shown, construed in the light most favorable to Plaintiff,
established a violation of a constitutional or statutory right.
IT IS, THEREFORE, ORDERED that:
Defendants’ Motion for Summary Judgment (Doc. No. 21) is GRANTED.
Plaintiff’s Complaint against Defendants Budnik and Rogers is DISMISSED
prejudice, for failure to exhaust administrative remedies.
Plaintiff’s Complaint against Defendant Tims is DISMISSED with prejudice.
An appropriate Judgment shall accompany this Memorandum and Order.
IT IS SO ORDERED this 8th day of October, 2014.
JEROME T. KEARNEY
UNITED STATES MAGISTRATE JUDGE
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