Roberts v. Hobbs et al

Filing 92

ORDER ADOPTING 83 Partial Report and Recommendations with clarifications, as set forth in this Order; denying 57 Motion for Summary Judgment; and dismissing, without prejudice, defts Piggee and Emsweller. All pltf's requests for injunctive relief are denied as moot. Signed by Judge D. P. Marshall Jr. on 2/6/12. (kpr)

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

PINE BLUFF DIVISION

BRUNSON ROBERTS,

ADC #127841
v.

PLAINTIFF
No.5:10-cv-174-DPM

RODERICK JOHNSON, FELICIA PIGGEE,
RICKY WEBB, DAVID TUCKER, and
ANTWON EMSWELLER

DEFENDANTS

ORDER
The Court has considered Magistrate Judge J. Thomas Ray's Proposed
Findings and Recommended Partial Disposition, Document No. 83, and
Roberts's partial objections, Document No. 91. After conducting a de novo
review, the Court adopts Judge Ray's recommended disposition with
clarification. FED. R. Cry. P. 72(b)(3).

1. Because genuine issues of material fact remain about the amount of
sewage and how long it stayed near Roberts's cell, the Court adopts Judge
Ray's sound reasoning on the conditions-of-confinement claim. Summary
judgment is unwarranted. The parties will proceed to trial on that issue. No
party objects to that disposition. Because Roberts has been transferred to
another Arkansas Department of Correction facility, the Court also adopts

Judge Ray's analysis that Roberts's requests for injunctive relief are moot.

Roberts does not object to that disposition.
2. The Court adds these clarifications on exhaustion. First, footnote 2
should reflect that it is undisputed that Roberts exhausted as to Defendants
Johnson, Webb, and Tucker. Second, the Court agrees with, adopts, and
expands Judge Ray's exhaustion analysis as to Piggie and Emsweller.
The Court accepts as true what Roberts says in objecting on this issue:
he did not know Piggie or Emsweller's identity until after the fifteen-day
period to file a grievance had expired; ADC policy requires specificity in
naming ADC employees involved; and ADC policy does not allow grievances
to be amended.

Document No. 57-5 (ADC Adm. Dir. 09-01 § IV(C)(4)

("Grievances must specifically name each individual involved [.]"); § IV(E) (1)
(grievance forms" shall be ... submitted within 15 days after the occurrence
of the incident[.]"); § IV(E)(2) ("ONLY THE STATEMENT IN THE SPACE
PROVIDED WILL BE ... CONSIDERED PART OF THE GRIEVANCE
SUBMISSION[.]") (emphasis original); § IV(F)(2) ("[n]ew issues cannot be
added to the [grievance] form and will not be considered.")).

-2­

The Court concludes, however, that Roberts could have - and should

have-done more during his fifteen-day window to exhaust as to Piggee and
Emsweller. It is undisputed that on 11 September 2009, Roberts knew that
Ms. Free had notified sanitation, "however no response to this matter."
Document No. 40, at 11. At this point, Roberts should have filed another

grievance-against sanitation, Free, or perhaps John Does-to exhaust his
administrative remedies. Whether Roberts would have prevailed on the new
grievance with less than full information is not the issue. Instead, to comply
with the PLRA, the issue is whether Roberts did anything to press his new
claim that other ADC employees had now dropped the ball. He did not.
Having failed to speak out at that point, Roberts may not pursue Piggie and
Emsweller in this case.

*

*

*

Motion for summary judgment, Document No. 57, denied. Defendants
Piggee and Emsweller are dismissed without prejudice for failure to exhaust.
Roberts may proceed to a jury trial against all remaining Defendants on his
conditions-of-confinement claim. All Roberts's requests for injunctive relief,
Document No.2, at 12, are denied as moot.

-3­

So Ordered.

D.P. Marshall Jr.

United States District Judge

-4­