Montgomery v. Payne et al
MEMORANDUM AND ORDER directing the Clerk of the to alter the docket to reflect that Defendant "D. Payne" is "Dexter Payne" and Defendant "Ford" is "Rodney Ford;" granting Defendant Payne's oral motion to dismiss; dismissing Payne without prejudice; granting Defendant Ford's oral motion for a directed verdict; and dismissing Ford with prejudice. Signed by Magistrate Judge Joe J. Volpe on 12/10/2014. (srw)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
D. PAYNE, et al.
MEMORANDUM AND ORDER
Plaintiff, Johnathan Montgomery, brought this action alleging that Defendants failed to
protect him from a physical assault by another inmate at the Arkansas Department of Correction
(“ADC”) Eastern Arkansas Regional Unit (“EARU”) (Doc. No. 2). On December 4, 2014, the Court
held a bench trial. After argument and testimony from the parties, the Court determined that Plaintiff
had failed to exhaust his administrative remedies against Defendant Dexter Payne. The Court also
determined that Defendant Rodney Ford was entitled to a directed verdict on the merits of Plaintiff’s
failure to protect claims.1
Plaintiff alleges that on entry to the EARU on September 28, 2012, he notified Defendant
Ford that he had unspecified enemies in the unit and feared for his life. Plaintiff claims he submitted
a witness statement to Sergeant Teresa Davis which specified that he feared members of the White
Aryan Resistance gang (“W.A.R.”). Defendant Ford testified that he was never made aware of this
The Court notes that the docket currently lists Defendant Payne’s first name as “D.” and no
first name is listed for Defendant Ford. The Clerk of Court shall alter the docket to reflect their
complete first names.
After a search of Plaintiff’s enemy alert list returned no known enemies, he was ordered to
enter the barracks. He refused this order and was given a disciplinary by Sergeant Davis
(Defendants’ Trial Exhibit 2). As a result, Plaintiff was assigned thirty days in isolation (Id.).
While in isolation, Plaintiff submitted two inmate requests dated October 18 and 22, 2012,
to Defendant Payne in which he articulated fears concerning W.A.R. and requested protective
custody (Defendants’ Trial Exhibits 4, 7). Plaintiff never converted either inmate request into a
formal grievance. On October 24, 2012, still in isolation, Plaintiff filed a separate grievance alleging
that Defendant Ford and Sergeant Davis failed to properly investigate his safety concerns
(Defendants’ Trial Exhibit 3). At that time, he identified his enemies as members of W.A.R. (Id.).
Prior to receiving a grievance response from Warden Burl, Plaintiff was released into general
On the morning after his release, Plaintiff was physically assaulted by inmate E. Carroll, a
W.A.R. prospect who sought to prove himself to gang leaders by carrying out their orders
(Defendants’ Trial Exhibit 6). Plaintiff testified that he sustained cuts and abrasions to his face
during Carroll’s assault. After the assault, Warden Burl responded to Plaintiff’s October 24, 2012,
grievance by noting that inmate Carroll had been placed on Plaintiff’s enemy alert list (Defendants’
Trial Exhibit 3). Plaintiff did not appeal this meritorious finding.
Before the trial commenced, Defendants Payne and Ford both renewed their argument that
they were entitled to dismissal based on Plaintiff’s failure to exhaust administrative remedies when
he did not appeal Warden Burl’s response to his grievance. Defendant Payne separately argued that
Plaintiff had failed to specifically identify him in any exhausted grievance, in contravention of ADC
The Court declined to accept Defendants’ first argument. Noting that Plaintiff’s grievance
had received a meritorious response from Warden Burl, and given that monetary damages were not
available under the ADC grievance process, the Court concluded Plaintiff was not required to appeal
a meritorious grievance. In so doing, it considered the United States Court of Appeals for the Eight
Circuit’s decision in King v. Iowa Department of Correction, wherein the court declined to accept
an appellant’s argument that, because a grievance response provided the relief he sought, he was not
required to appeal the grievance to its final stage. 598 F.3d 1051, 1052 (8th Cir. 2010). The Court
distinguished the immediate case by concluding that, unlike King where the prison promised to
examine its procedures but offered no direct relief, Mr. Montgomery’s matter was resolved entirely
and nothing further could be achieved under ADC grievance procedure. The assault had already
occurred and only Plaintiff’s desire for monetary compensation remained.
The Court also found that Defendant Payne’s separate exhaustion argument entitled him to
dismissal. While the failure to specifically identify a prison employee in a grievance is not always
fatal to exhaustion, such omission does preclude exhaustion where it denies prison officials the
opportunity to review a defendant’s relevant conduct. See Burns v. Eaton, 752 F.3d 1136, 1141 (8th
Cir. 2014). Here, Plaintiff failed to exhaust a grievance which named Defendant Payne or implicated
his conduct. Instead, he identified Payne only in two inmate requests. The Court therefore dismissed
Payne without prejudice.
Motion for Directed Verdict
At the close of testimony and argument, Defendant Ford moved for a directed verdict,
arguing that Plaintiff was unable to prove he had acted with deliberate indifference. The Court
agrees. In order to establish a successful failure to protect claim, a plaintiff must establish that the
defendant actually knew of a substantial risk and failed to respond reasonably. Whitson v. Stone
County Jail, 602 F.3d 920, 923 (8th Cir. 2010).
Here, the evidence failed to establish that Defendant Ford knew of a substantial risk to
Plaintiff’s safety at the time of his entry to the EARU. While Plaintiff did tell Defendant Ford that
he feared for his life and did not want to enter the barracks, based on the trial testimony and exhibits,
the Court specifically finds that Plaintiff never identified any specific enemies to Defendant Ford.
The Court credits the testimony of Defendant Ford on this point and concludes that he searched
Plaintiff’s enemy alert list and found no threats. It may be, as Plaintiff testified, that he gave
Sergeant Teresa Davis the names of inmates and referenced their affiliation with W.A.R., but the
evidence at trial establishes that information was not communicated to Defendant Ford.2
Accordingly, he never knew of any substantial risk to the Plaintiff.
Based on the foregoing, the Court concludes that Defendant Ford was not deliberately
indifferent in failing to investigate Plaintiff’s security concerns.
IT IS, THEREFORE, ORDERED that:
The Clerk of Court shall alter the docket to reflect that Defendant “D. Payne” is
Defendant Ford testified that he eventually learned Plaintiff feared W.A.R. by way of
Plaintiff’s grievance. As that grievance named him specifically, however, Defendant Ford was
precluded from taking any action related to its content by ADC and EARU policy. Defendant Ford
testified that this policy exists to prevent retaliation against inmates who file grievances.
The Court also notes that trial testimony revealed that Sgt. Woodard may have been made
aware of Mr. Montgomery’s enemies. But as noted at trial, Mr. Montgomery never made any
allegations against Woodard in his Complaint. (Doc. No. 2.) Accordingly, the Court recommended
dismissal of Sgt. Woodard (Doc. No. 6) and Mr. Montgomery offered no objection to this dismissal
and never moved to amend his Complaint.
“Dexter Payne” and Defendant “Ford” is “Rodney Ford”;
Defendant Payne’s oral motion to dismiss for Plaintiff’s failure to exhaust
administrative remedies is GRANTED and Payne is dismissed without prejudice;
Defendant Ford’s oral motion for directed verdict is GRANTED and Ford is
dismissed with prejudice.
An appropriate Judgment shall accompany this Memorandum and Order.
IT IS SO ORDERED this 10th day of December, 2014.
JOE J. VOLPE
UNITED STATES MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?