Dunahue v. Branham et al

Filing 82

ORDER granting in part and denying in part Defendants' 38 Motion for Partial Summary Judgment; allowing Dunahue to proceed with the following claims: (1) his claim that, on 6/7/2020, Branham placed him a shower-stall in isolation for 24 ho urs; (2) his claim against Culclager and Andrews for "consenting" to his 24 hour placement in a shower stall on 6/7/2020; (3) his claim that Avery, Andrews, Starks, and Culclager denied him access to mail during his three weeks on behav ior control; and (4) his claim that Starks and Culclager denied him cleaning supplies from 6/22/2020 to 6/29/2020; dismissing, without prejudice, all other claims; and denying 81 Motion to Appoint Counsel. Signed by Magistrate Judge Benecia B. Moore on 3/5/2025. (ldb)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION
REGINALD DUNAHUE
ADC #106911
V.

PLAINTIFF
Case No. 4:23-cv-00504-BBM

CURRY BRANHAM
Lt, Cummins Unit, ADC, et al.

DEFENDANTS
ORDER1

I.

INTRODUCTION
On August 8, 2022, Plaintiff Reginald Dunahue (“Dunahue”), then incarcerated at

the Tucker Max Unit of the Arkansas Division of Correction (“ADC”), filed a pro se
Complaint pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights
while he was incarcerated at the Cummins Unit of the ADC.2 (Doc. 2); see Dunahue v.
Reed et al, 4:22-CV-00710-BRW-BBM, (ECF No. 2).
After the Court screened the Complaint in accordance with the Prison Litigation
Reform Act (“PLRA”), Dunahue was allowed to proceed with conditions-of-confinement
claims against Lieutenant Curry Branham (“Branham”), Lieutenant Avery (“Avery”),
Warden Culclager (“Culclager”), Captain Starks (“Starks”), and Deputy Warden Jeremy
Andrews (“Andrews”) (collectively, “Defendants”). (Doc. 1 at 2). Specifically, Dunahue

1

By written consent of the parties, this case was referred to a United States Magistrate Judge to
conduct all proceedings and order the entry of a final judgment, in accordance with 28 U.S.C. § 636(c) and
FED. R. CIV. P. 73. (Doc. 34).
2

This case was originally joined with Dunahue v. Reed et al., 4:22-CV-00710-BRW-BBM. It was
severed by Court Order on May 31, 2023. (Doc. 1).

alleges that, on June 7, 2020,3 Branham and Avery “locked [Dunahue] in a refrigerator[]sized shower stall . . . for 24 hours straight” and forced him to use the restroom and eat
his meals within that confined space. (Doc. 2 at 8). Dunahue was then transferred to
behavior control for three weeks, where he was deprived of clothes, a mattress, hygiene
items, and mail. Id. Culclager, Starks, and Andrews were aware of the alleged
unconstitutional conditions but failed to take any corrective action. Id. at 8, 18–19
On April 25, 2024, Defendants filed a Motion for Partial Summary Judgment,
Statement of Undisputed Facts, and Brief in Support, arguing that Dunahue failed to
exhaust his administrative remedies. (Docs. 38–40). Dunahue filed a series of Responses,
(Doc. 42, 51, 52-1), and Defendants replied, (Doc. 49).4 The issues are thus joined and
ready for consideration.
After careful review of the record, Defendants’ Motion for Partial Summary
Judgment, (Doc. 38), is granted in part and denied in part.
II.

DISCUSSION
A.

Standard of Review

Summary judgment is appropriate when the record demonstrates that there is no
genuine dispute as to any material fact, and the moving party is entitled to judgment as a
matter of law. See FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322–23

3

The Court’s screening order has a scrivener’s error: the date should be June 7, 2020, not June 6,
2020. Compare (Doc. 1 at 2) with (Doc. 2 at 8, ¶ 14).
4

Dunahue also filed a sur-reply, (Doc. 57). The document, which was filed without leave of Court
and merely states that Defendants’ Reply “Is Straight Bull Sh*t” (as written in the original), will not be
considered by the Court.

2

(1986); Anderson v. Liberty Lobby Inc., 477 U.S. 242, 249–50 (1986). The moving party
bears the initial burden of demonstrating the absence of a genuine dispute of material fact.
Celotex, 477 U.S. at 323. Thereafter, the nonmoving party must present specific facts
demonstrating that there is a material dispute for trial. See FED. R. CIV. P. 56(c); Torgerson
v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). “Courts must construe
the evidence in the light most favorable to the nonmoving party and draw all reasonable
inferences in favor of that party.” Brand v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA,
934 F.3d 799, 802 (8th Cir. 2019) (citing Young v. United Parcel Serv., Inc., 575 U.S. 206,
216 (2015)).
B.

The PLRA’s Exhaustion Requirement

The PLRA requires prisoners to exhaust all available administrative remedies prior
to filing a § 1983 action. 42 U.S.C. § 1997e(a); Woodford v. Ngo, 548 U.S. 81, 85 (2006);
Johnson v. Jones, 340 F.3d 624, 628 (8th Cir. 2003). In order to do so, prisoners must fully
and properly exhaust their available administrative remedies as to each claim that is later
raised in a § 1983 action and complete the exhaustion process before initiating the § 1983
action. Jones v. Bock, 549 U.S. 199, 211, 219–20, 223–24 (2007); Woodford, 548 U.S. at
93–95; Burns v. Eaton, 752 F.3d 1136, 1141–42 (8th Cir. 2014). Importantly, “it is the
prison’s requirements, and not the PLRA, that define the boundaries of proper exhaustion.”
Jones, 549 U.S. at 218; see also Woodford, 548 U.S. at 90. Thus, to satisfy the PLRA, a
prisoner must comply with the exhaustion requirements of the incarcerating facility before
he can properly bring a claim in a § 1983 action.

3

C.

ADC Administrative Directive 19-34

It is undisputed that ADC Administrative Directive 19-34 (“AD 19-34”) is the
administrative process for the submission and resolution of inmate problems and
complaints within the ADC. (Doc. 40 at 1 ¶ 4; Doc. 40-1). AD 19-34 requires prisoners to
raise their complaints through a three-step grievance procedure. (Doc. 40-1 at 1–19). First,
the prisoner must file a “Step One” informal resolution within fifteen days of each incident
to a designated “Problem Solver.” AD 19-34 at § IV(E). The Step One informal resolution
must be “specific as to the substance of the issue or complaint to include the date, place,
personnel involved or witnesses.” Id. In other words, at Step One, the prisoner must name
each defendant and explain their involvement in the complaint.
Second, the prisoner must file a “Step Two” formal unit-level grievance, raising his
complaint within three working days of the denial of the informal resolution. Id. at § IV(F).
The Step Two grievance must contain “an explanation [of] why the inmate considers the
informal resolution unsuccessful.” Id. at § IV(F)(1). Notably, the prisoner may not raise
new issues in his formal grievance, and issues not raised in Step One will not be considered
at Step Two. Id. at § IV(F)(2).
Finally, the prisoner must file a “Step Three” appeal to the appropriate ADC Chief
Deputy/Deputy/Assistant Director within five working days of the Step Two decision. Id.
at §§ IV(G). At Step Three, the prisoner must “state a reason for the appeal.” AD 19-34 at
§ IV(G)(2). The grievance procedure cautions prisoners that they should “not list additional
issues, requests, or names which were not part of the original grievance, as those issues
will not be addressed.” Id.
4

Moreover, the grievance procedure cautions prisoners that only certain matters may
be grieved. Matters such as parole, transfers, anticipated events, and disciplinaries are not
grievable. AD 19-34 § III(H)(5).
In connection with each grievable claim, the prisoner must: (1) “specifically name
each individual involved;” (2) state only one problem or issue per grievance; and (3)
include a “brief statement that is specific as to the substance of the issue or complaint to
include the date, place [and] personnel involved or witnesses.” Id. at § IV(C)(4), (D)(2), &
(E)(2). The ADC’s policy further cautions prisoners that, if they fail to “exhaust their
administrative remedies as to all defendants at all levels of the grievance procedure . . .
their lawsuits or claims may be dismissed” under the PLRA. Id. at § IV(N) (emphasis
added); see also id. at § IV(C)(4) & (D)(2). Dunahue, then, was required to raise and pursue
his claims against Defendants through all three steps of the ADC’s grievance procedure.
D.

Relevant Grievances

In their Motion for Partial Summary Judgment, Defendants argue that Dunahue
failed to exhaust his administrative remedies as to any claims against Branham. (Doc. 38).
Furthermore, Defendants request that Dunahue’s claims be limited to: (1) the denial of his
June 2020 legal mail against Starks, Avery, Culclager, and Andrews; and (2) the “denial
of hygiene items to clean his living area” against Culclager and Starks. (Doc. 38 at 2).
Defendants identify three relevant grievances: CU-20-00865, CU-20-00866, and CU-2000971.
Dunahue responds that all of his claims were exhausted in Grievance CU-20-00865,
and in an additional grievance not provided by the Defendants, CU-20-00877. (Doc. 42 at
5

1). Defendants reply that “Grievance CU-20-00877 was appropriately rejected as relating
to a non-grieveable disciplinary matter” and, thus, did not serve to exhaust any of
Dunahue’s claims. (Doc. 49 at 1, ¶ 4). The Court will consider all four grievances, in turn.
1.

CU-20-00865 (Doc. 40-2 at 6–9)

On June 7, 2020, Dunahue initiated Grievance CU-20-00865 by filing a Step One
informal resolution. (Doc. 40-2 at 6). He grieved that: (1) Branham placed him in a shower
stall in isolation and mishandled his legal work; (2) Avery and Andrews left him in the stall
and stole his property; and (3) Avery damaged his legal documents.5 Id. Dunahue’s
complaints apparently were not resolved informally because, the next day, he moved to the
Step Two formal grievance process. Id.
Culclager was the decision maker at Step Two. (Doc. 40-2 at 7). She advised
Dunahue that, because he had “addressed multiple issues in [his] complaint,” she was
limiting her response to the “legal mail” issue. Id. She wrote that Dunahue’s property had
been inventoried and placed in the restrictive housing property room. Id. Moreover, Avery
denied touching or packing Dunahue’s property, and Andrews denied having any access to

5

In full, Dunahue’s informal resolution for CU-20-00865 reads:

On 6-7-2020 about 3 A.M. Sgt. Brenham of Cummins moved me to a shower stall in
isolation due to a lack of Bed Space, and in violation of Law and my const. Rights. Racial
slurs by Sgt. Brenham was used on 6-7-2020 as he mishandled my legal work-He said
“Nigger you gone live in that shower.” The Law Prohibits Sgt. Brenham to commit hate
crimes. Due to be being Black, Sgt. Brenham left me to abide in a 2 ft. wide shower stall
which is prescribed by ADC directives and policy. Sgt. Brenham’s use of Racial Slurs
proves he had malice. On 6-07-2020 at Cummins Unit- - In violation of Law & Order Lt.
Avery & Dep. Warden Andrews stole my personal property and left me in a shower stall.
Lt. Avery has abused his authority. Damage to my legal Documents was done by Lt. Avery
on 6-7-2020.
(Doc. 40-2 at 6).

6

his property. Id. Thus, at Step Two, Culclager found Dunahue’s complaint regarding his
legal property to be “without merit.” Id.6
Dunahue appealed to Step Three. Despite the fact that Culclager only addressed
Dunahue’s complaints regarding his legal mail and made no mention of Dunahue’s
“shower stall” complaint or Branham in her Step Two response, Dunahue stated in his
appeal: “On 6/7/20 about 3:20 A.M. Warden Culclager & D/W-Andrews Consented 2 Sgt.
Branham forcing me out of a cell to put another guy in it.” Id. (errors in original).
Unlike Culclager at Step Two, the Step Three decision maker did not limit his
response to the legal-property issue. Instead, he reviewed Culclager’s Step Two response
regarding Dunahue’s legal property and concurred with that decision. (Doc. 40-2 at 9). He
also reviewed Dunahue’s appeal—about Branham forcing Dunahue from his cell and
Culclager and Andrews consenting to Branham’s decision—and found no merit in that
appeal. Id.
Defendants argue that CU-20-00865 only exhausted Dunahue’s claim that Avery
and Andrews interfered with his legal mail on June 7, 2020, because that is the only claim

6

In full, Culclager’s Step Two response to CU-20-00865 reads:

Please be advised, you have addressed multiple issues in your complaint. However, the
issue that will be addressed will pertain to your legal mail. On June 7, 2020, you refused
to be placed into a cell with another inmate. Therefore, you were placed on Behavior
Control, and your property was placed into the Cummins Unit Restrictive Housing Property
Room. Your property was inventoried and accounted for. You refused to sign the property
form. On June 16, 2020, you were again placed on Behavior Control, with a property form
being completed. Both documents verify you have an assortment of personal mail. Lt. K.
Avery states, he has not packed nor touched your property. Deputy Warden J. Andrews
states, he has not had any access to your personal property at the Cummins Unit.
(Doc. 40-2 at 7).

7

addressed by Culclager at Step Two. (Doc. 39 at 11). However, this argument ignores the
Step Three decision maker’s final merits determination, which addressed Dunahue’s
allegation that Culclager and Andrews “consented” to him being removed from his cell by
Branham. (Doc. 40-2 at 7, 9). Although Dunahue improperly raised this issue for the first
time on appeal, it is well-established that a prison official’s acceptance and resolution of a
procedurally-deficient grievance serves to establish proper exhaustion. Hammett v. Cofield,
681 F.3d 945, 947 (8th Cir. 2012); see also, e.g., Radford v. Jenkins-White, No. 2:23-CV00227-DPM-JJV, 2024 WL 2198258, *3 (E.D. Ark. Apr. 4, 2024) report and
recommendation adopted, 2024 WL 2194599 (E.D. Ark. May 15, 2024) (holding that when
the ADC Director denied a grievance on the merits rather than reject it as procedurally
flawed, the Director cured any defects).
Thus, the issue is whether Culclager and/or the Step Three decision maker reviewed
and resolved Dunahue’s procedurally-deficient condition-of-confinement claims against
Branham, Culclager, and Andrews. On this record, viewed in a light most favorable to
Dunahue, the Court holds that the Step Three decision maker did and, accordingly, that
CU-20-00865 served to exhaust Dunahue’s shower-stall condition-of-confinement claims
against Branham, Culclager, and Andrews.
As stated above, the Court must view the grievance and the decision maker’s
response in a light most favorable to Dunahue and draw reasonable inferences in his favor.
Brand, 934 F.3d at 802. By concurring with Culclager’s Step Two response and finding no
merit in Dunahue’s appeal, it can reasonably be inferred that the Step Three decision maker
resolved the following complaints on the merits: (1) Dunahue’s complaint that, on June 7,
8

2020, Avery and Andrews “stole his personal property” and Avery “damaged” his legal
documents; (2) Dunahue’s complaint that he was removed from his cell by Branham and
placed in a shower stall for 24 hours; and (3) Dunahue’s complaint that Culclager and
Andrews “consented” to him being removed from his cell by Branham. (Doc. 40-2 at 7, 9).
These grievances correspond to the claims in Dunahue’s Complaint that Avery and
Andrews were involved in denying him mail for three weeks, starting on June 7, 2020
(Doc. 2-1 at 8, ¶ 16); and that Culclager and Andrews knew Dunahue was forced out of his
cell and into a shower stall by Branham on June 7, 2022, but “didn’t give a damn,” id. at
8, ¶ 14. Thus, CU-20-00865 serves to exhaust those claims only.7
2.

CU-20-00866 (Doc. 40-2 at 10–13)

In his next grievance, CU-20-00866, Dunahue complained of several issues
regarding his legal mail and access to the courts. (Doc. 40-2 at 10). As relevant to this
action, he grieved that Starks was hiding legal envelopes and paper and allowing officers
to refuse notary call, thus “blocking or delaying” Dunahue’s communication with the court.
He also complained that Culclager was aware of Starks’s actions but failed to take
corrective action and that Avery and Starks were not picking up legal mail. Id. Finally,

7

Because Culclager only responded to Dunahue’s claims regarding his legal mail, and Dunahue’s
Step Three appeal only grieved Culclager and Andrews’s “consent” to him being removed from his cell by
Branham, CU-20-00865 does not serve to exhaust Dunahue’s claim that Avery locked him in a shower stall
for 24 hours. (Doc. 2-1 at 8, ¶ 14).

9

Dunahue claimed the law library was denying him access to legal supplies and lawbooks.8
(Doc. 40-2 at 10).
The Step One problem solver noted that Dunahue could request paper and envelopes
directly from Starks or purchase the items from commissary. (Doc. 40-2 at 10). Dunahue
appealed to Step Two because “none of [his] issue[s] w[ere] resolved.” Id.
At Step Two, Culclager found Dunahue’s grievance to be without merit. (Doc. 402 at 11). Specifically, Culclager advised Dunahue: “Captain K. Starks states, he personally
ensures inmates housed in the Restrictive Housing area receive legal materials such as legal
envelopes and writing paper. However, you have not submitted a request for these items.
Therefore, your complaint is without merit.” Id.
Dunahue appealed to Step Three, stating merely “It[’]s False.” Id. The Step Three
decision maker found no merit in Dunahue’s appeal and advised him to “follow the

8

Grievance CU-20-00866 contained many allegations that are not relevant to this action, including
claims against non-Defendants. In full, it reads:
I continue to grieve about Capt. Starks NOT obeying ADC directives and Policy—So,
Starks is mad now and he is blocking or delaying my communication with the Courts by
keeping all legal envelopes and paper for my use hidden, and locked-up.[] Starks okays his
lieutenants to neglect doing notary call, plus legal mail pick up[.] [B]y policy captains,
lieutenants too have to do (5) days a week—East Bldg. Captain Kenneth Wayne Starks &
Wardens of Cummins, Lt. Avery, Lr. Crofford, Mail Room Personnel and Major Daniel
don’t do legal mail pick-up nor notary call, which violates my rights to communicate w/
the media, courts, and public officials.
Aundrea Culclager & Directors—Payne, Reed & Straughn knows that Cpt. Starks instead
of the law library is controlling legal supplies I need but I can’t get. The Program
Coordinator won’t allow me to get lawbooks the law library carries and ADC policy says
Restr. Housing can check out.
(Doc. 40-2 at 10).

10

guidelines in obtaining your needed legal supplies by putting in a request for them.” Id. at
13.
Defendants admit that, when viewed most favorably to Dunahue, Grievance CU20-00866 exhausts Dunahue’s claims against Starks, Avery, Culclager, and Andrews for
interfering with his legal mail through mid-June 2020 while he was housed in behavior
control. (Doc. 39 at 11). Accordingly, CU-20-00866 serves to exhaust Dunahue’s claim
that Starks, Avery, Culclager, and Andrews either interfered with his legal mail or knew
his legal mail was being interfered with and failed to take corrective actions.
3.

CU-20-00877 (Doc. 42 at 2–3)

In Grievance CU-20-00877, Dunahue first complained that, on June 7, 2020, Avery,
Andrews, and Branham placed him in behavior control even though he did not “meet the
criteria to be put on behavior control.” (Doc. 42 at 2). Among other complaints, Dunahue
further alleged that Avery and Starks did not provide him “cleaning supplies, nail clippers,
a shaving razor, and a shower.”9 The grievance was rejected at Step One and Step Two as

9

Like his previous grievances, there are many complaints in CU-20-00877 that are not relevant to
the underlying lawsuit. In full, Dunahue’s informal resolution states:
An inmate shall be placed on Behavior Control for any assaultive, disruptive or self
injurious behavior—According to the ADC administrative directive on “Behavior
Control.” On 6/7/2020 Lt. Avery & Dep. Warden Andrew & Sgt. Branham placed me on
Behavior Control without me doing something to meet the criteria to be put on behavior
control. And when I came off . . . the Behavior Control policy requires . . I Should’ve been
given cleaning supplies, nail clippers, a shaving razor, and a shower—but Lt. Avery Lt.
Crofford & Cat. Starks did not Provide me either of those (4) accommodations on 6-102020. And the Behavior Control Policy says officers on Avery’s and Crofford’s shifts
should’ve done checks on me once every 30 minutes but they didn’t. Nobody did rounds
in isolation on 6/7/2020–6/10/2020 at Cummins in accord to ADC directive. A major
violation of Policy occurred when D/W-Andrews, Lt. Avery & Sgt. Branham put me on
behavior control – because it was used as corporal punishment on me for me saying I’m
afraid to be in a cell with inmates who have COVID-19 and smoke dope.” I/M J. Hart in

11

being “non-grievable,” because it concerned a “disciplinary matter.” Id. at 2–3. The Step
Two rejection occurred on June 16, 2020, and the grievance was stamped twice with:
“FAILURE TO FOLLOW POLICY HAS RESULTED IN A REJECTION FOR THIS
APPEAL AND MARKS THE END OF THE APPEAL PROCESS.” Id.
Defendants argue that the grievance was appropriately rejected because it concerned
a disciplinary matter, in violation of the ADC grievance procedure. (Doc. 49 at 1, ¶ 4).
They also point out that, after receiving the rejection notice, Dunahue was still within the
fifteen-day window to grieve any of the non-disciplinary matters he raised in CU-2000877. Id. at 2, ¶ 9.
The ADC grievance procedure clearly states that “disciplinaries” are not grievable.
AD 19-34 § III(H)(5), (Doc. 40-1 at 3). In CU-20-00877, Dunahue’s first complaint was
that, on June 7, 2020, he was placed on behavior control without justification. (Doc. 42 at
2). According to the disciplinary records, on June 7, 2020, Dunahue refused to accept a
cellmate despite three direct orders from Branham. (Doc. 42 at 40). Branham, therefore,
charged Dunahue with two “failure to obey” code violations and placed him on behavior
control. Id. Thus, the first raised complaint in CU-20-00877 was directly related to a nongrievable disciplinary matter, and it was not improper for ADC officials to reject it for
failing to comply with procedure.

isolation quiet cell No. 12 lives in a 1-man cell because he prefers to, but discrimination by
employees is prohibited by the ADC.
(Doc. 42 at 2).

12

Dunahue did, however, raise grievable issues in CU-20-00877—namely, that he was
not provided a shower and grooming supplies on June 10, 2020. (Doc. 42 at 2). Dunahue
was made aware of the rejection of the grievance on June 16, 2020. Id. at 3. Considering
Step One informal resolutions must “be completed and submitted within 15 days after
occurrence of the incident,” Dunahue still had several days to file a new grievance raising
this non-disciplinary complaint. See AD 19-34 § IV(E)(1), (Doc. 40-1 at 6). Thus, despite
the rejection of CU-20-00877, the grievance procedure was still available for Dunahue’s
use. Accordingly, CU-20-00877 was properly rejected on procedural grounds and cannot
be used to exhaust any claims. Woodford v. Ngo, 548 U.S. 81, 95 (2006) (holding that
failure to adhere to prison procedural rules renders grievances unexhausted).
4.

CU-20-00971 (Doc. 40-2 at 14–17)

Dunahue initiated the final relevant grievance, CU-20-00971, by filing an informal
resolution on July 7, 2020. He complained generally of unsanitary conditions and the lack
of grooming services in punitive isolation. (Doc. 40-2 at 14). More specifically, he
complained that Culclager and Starks denied his requests to have staff pass out
“disinfectants, paper towels and cleansers” on a daily basis and to hire an extermination
company for the rodent and insect problem. Id. 10
10

In full, Dunahue’s Step One informal resolution in CU-20-00971 reads:

D.O.C. Regulations promotes sanitary, safe and rehabilitative confinement; however
Wardens Culclager & Captain Starks have continuously denied my requests for them to
get somebody or some company to exterminate the rodents, roaches, bugs and spiders that
are comings out of the drains in the floor of East isolation; Requests for them to have
inmate-Janitors Mop and Clean Cell #13 East isolation seven days a week; Request for
them to have staff to daily pass out disinfectants, paper towels and cleansers to me so to
clean the cell I am in; And requests they stop putting inmates together in one cell that are
classified as threats to another’s safety. None of ADC’s directives and/or Policies over

13

The grievance was rejected at Step One with the written explanation that, “according
to policy[,] cell clean-up is done Monday, Wednesday and Friday.” (Doc. 40-2 at 14).
Dunahue appealed to Step Two. Culclager found the complaint without merit. (Doc. 40-2
at 15). Specifically, Culclager informed Dunahue that (1) they contracted with Presto-X to
spray for pests and (2) Dunahue is provided with chemicals for cleaning his own living
area. Id. Culclager also noted that the “issue of cleaning has been addressed with you in
multiple complaints.” Id. Dunahue appealed his grievance to Step Three. On September
25, 2020, the Director affirmed Culclager’s response and found Dunahue’s grievance
without merit.
Defendants concede that CU-20-00971 serves to exhaust Dunahue’s claim that
Culclager and Starks denied him cleaning supplies to sanitize his living conditions. (Doc.
39 at 11). They argue, however, that CU-20-00971 exhausts only Dunahue’s claims from
June 22, 2020—fifteen days prior to the July 7 informal resolution—through June 28,
2020—the last day Dunahue alleges he was in behavior control.11 Id. at 11–12, (Doc. 40-2
at 2, ¶ 12).

punitive isolation, housing of maximum security level inmates, cleaning of inmates living
environment, barber and grooming for AD-SEG., Step Down Program; and Unit cleaning
are followed by Cummins Warden Cuclager, Cpt. Starks & Major Daniel—so I, and alot
of other guys not serving punitive-ISO. Sentences have been held in punitive-ISO.
Unsanitary conditions w/o access to barber service, cleaning supplies and rehabilitative
programs[.] Therefore I have legit ground to sue Culclager.
11

Dunahue’s claims in this action are necessarily defined and limited by the allegations in his
Complaint, and the allegations on which he was allowed to proceed after the Court’s 28 U.S.C. § 1915A
screening. In his Complaint, Dunahue alleges that, on June 7, 2020, he was placed on behavior control for
three weeks. (Doc. 2-1 at 8). And, while in behavior control, he did not have “commonly used hygiene
items.” Id. Although Dunahue goes on to complain generally about the unsanitary conditions he suffered
during his entire stay in Cummins’s punitive isolation unit—from December 2019 to October 2021, id. at

14

The Court limited Dunahue’s claims to June 7, 2020, and the three weeks following
that Dunahue was in behavior control.12 See (Doc. 1 at 2–3) (“Dunahue was then transferred
to behavior control for three weeks, where he was deprived of clothes, a mattress, hygiene
items, and mail.”). Fifteen days prior to July 7, 2020, the date of Dunahue’s grievance, is
June 22, 2020. Because Dunahue did not specify in his grievance whether he was
complaining about his time in behavior control, specifically, or punitive segregation,
generally, the Court agrees with Defendants that, according to the ADC grievance
procedure, CU-20-00971 serves to exhaust Dunahue’s conditions-of-confinement claim
that Starks and Culclager did not provide him with personal cleaning supplies for his cell
from June 22, 2020, to June 29, 2020.
Nothing in CU-20-00865, CU-20-00866, or CU-20-00971, however, exhausts
Dunahue’s remaining conditions-of-confinement claims against Defendants for being
transferred to behavior control for three weeks. Likewise, the aforementioned grievances
do not exhaust Dunahue’s corrective-inaction claims against Andrews, Culclager, and
Starks related to Dunahue’s placement in behavior control. In other words, Dunahue failed
to raise or exhaust in CU-20-00865, CU-20-00866, and CU-20-00971 his claim that
Andrews, Culclager, and Starks failed to correct his placement in behavior control for three

9, ¶ 17—the Court only severed and served Dunahue’s complaints regarding his three weeks in behavior
control. (Doc. 1 at 2–5).
12

Defendants reference June 28, 2020, as the date for all claims to be completed; however, Dunahue
was allegedly placed in the shower stall on June 7, where he stayed for 24 hours. (Doc. 2 at 8). Thus,
Dunahue’s time in behavior control did not begin until June 8, 2020. Twenty-one days after June 8, 2020,
is June 29, 2020.

15

weeks. Furthermore, Dunahue failed to exhaust his claim that Andrews failed to take any
corrective action to get Dunahue cleaning supplies for his cell.
E.

Dunahue’s Fourth Motion for Appointment of Counsel

There is one last matter pending before the Court: Dunahue’s fourth Motion for
Appointment of Counsel. (Doc. 81). The Court previously weighed the relevant factors and
determined that Dunahue’s claims do not appear legally or factually complex, and he is
capable of prosecuting his claims without appointed counsel. (Doc. 22). Dunahue’s
perfunctory one-page Motion provides no reason for the Court to revisit that decision.
Accordingly, Dunahue’s fourth Motion for Appoint of Counsel, (Doc. 81), is DENIED.
III.

CONCLUSION
Of the four grievances identified by the parties, Dunahue received a response on the

merits to only three: CU-20-00865, CU-20-00866, and CU-20-00971. The fourth
grievance, CU-20-00877, was appropriately rejected pursuant to ADC policy.
In the three fully exhausted grievances, Dunahue exhausted the following claims:
A.

Branham placed Dunahue in a shower stall in isolation for twenty-four hours
on June 7, 2020, (Doc. 2-1 at 8; Doc. 40-2 at 6–9);

B.

Culclager and Andrews “consented” to Dunahue being placed by Branham
in a shower stall in isolation for twenty-four hours on June 7, 2020, (Doc. 21 at 8, ¶ 14; Doc. 40-2 at 7, 9);

C.

Avery, Andrews, Starks, and Culclager did not give Dunahue his mail for the
three weeks he was in behavior control, starting on or around June 7, 2020,
(Doc. 2-1 at 8, ¶ 16; Doc. 40-2 at 6–7, 9; Doc. 40-2 at 10–13); and

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D.

Starks and Culclager denied Dunahue cleaning supplies from June 22, 2020,
to June 29, 2020, (Doc. 2-1 at 8, ¶ 16; Doc. 40-2 at 14–17).

Nothing in CU-20-00865, CU-20-00866, nor CU-20-00971 exhausts Dunahue’s
remaining claims that: Avery made him stay in a shower stall for twenty-four hours, (Doc.
2-1 at 8, ¶ 14); and, while he was in behavior control, he was denied clothes, a shower, and
a mattress, id. at ¶ 16. To the extent Dunahue may have alleged a claim about being placed
in behavior control for three weeks, he also failed to exhaust that claim.
IT IS THEREFORE ORDERED THAT:
1.

Defendants’ Motion for Partial Summary Judgment, (Doc. 38), is

GRANTED in part and DENIED in part.
2.

Dunahue may PROCEED with the following claims: (1) his claim that, on

June 7, 2020, Branham placed him a shower-stall in isolation for twenty-four hours; (2) his
claim against Culclager and Andrews for “consenting” to his twenty-four-hour placement
in a shower stall on June 7, 2020; (3) his claim that Avery, Andrews, Starks, and Culclager
denied him access to mail during his three weeks on behavior control; and (4) his claim
that Starks and Culclager denied him cleaning supplies from June 22, 2020, to June 29,
2020.
3.

All other claims are DISMISSED without prejudice based on Dunahue’s

failure to exhaust available administrative remedies.
4.

Dunahue’s fourth Motion for Appointment of Counsel, (Doc. 81), is

DENIED.

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SO ORDERED this 5th day of March, 2025.

____________________________________
UNITED STATES MAGISTRATE JUDGE

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