Obama v. Hobbs et al

Filing 91

ORDER adopting 87 Report and Recommendations with one clarification; granting 78 Motion for Summary Judgment. Obama's complaint is dismissed without prejudice; and denying 89 Motion for Copies. Signed by Judge D. P. Marshall Jr. on 6/9/11. (hph)

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

PINE BLUFF DIVISION

ISHMAEL HASSAN OBAMA
A.D.C. # 145160

v.

PLAINTIFF

Case No. 5:10-cv-201-DPM

ROBERT D. SANDERLIN, CO-I, Cummins
Unit, Arkansas Department of Correction

DEFENDANT

ORDER
The Court has carefully reviewed the recommended disposition from

u.s. Magistrate Judge Beth Deere, Document No. 87, and Ishmael Obama's
objections, Document No. 90. Having conducted a de novo review of the record,
the Court adopts Magistrate Judge Deere's proposal as its own with one
clarification. FED. R. ClV. P. 72(b)(3).
The Court declines to hold that, as a matter of law, threats of retaliation
can never make an administrative remedy unavailable. The Eighth Circuit
has

/I

excused inmates from complying with an institution's grievance

procedures when officials have prevented prisoners from utilizing the
procedures[.]" Gibson v. Weber, 431 F.3d 339, 341 (8th Cir. 2005). Obama
alleges that he failed to exhaust his administrative remedies because the

grIevance officer told him that he "may face retaliation" if he did not
withdraw his grievance. Document No. 90, at 2. There may be circumstances
in which threats of retaliation are so severe that officials have effectively
prevented the prisoner from exhausting the remedy. This unavailability
could excuse the prisoner from the usual exhaustion requirement. E.g., Turner
v. Burnside, 541 F.3d 1077, 1085 (11th Cir. 2008); Macias v. Zenk, 495 F.3d 37,45

(2d Cir. 2007). The Court concludes, however, that those circumstances are
not present here. Obama's allegations about retaliation are too vague to allow
the conclusion that his administrative remedies were unavailable. Document
No. 81, at 1-2; Document No. 90, at 2. Sanderlin's motion for summary

judgment, Document No. 78, is therefore granted. Obama's complaint is
dismissed without prejudice for failure to exhaust.
Obama also moves for copies of several documents.

Two of the

documents he seeks are simply Clerk's certificates of mailing. Document Nos.
77 & 83. And because he has filed informed responses to Sanderlin's motion
for summary judgment, it appears that he did, in fact, receive copies of the
other three documents - Document Nos. 78-80.
Document No. 89, is therefore denied.

His motion for copies,

So Ordered.