Lewis v. Carswell et al

Filing 84

ORDER adopting the 78 Recommendation and overruling Lewis's objections 81 . Lewis's motion for summary judgment, 71 , is denied without prejudice as premature. He may refile it when discovery is completed. The opposed motion to suppleme nt objections, 82 , is denied. The Court adopts the partial recommendation on exhaustion, 69 , and overrules the Defendants' objections, 74 . In short, the Court agrees with Magistrate Judge Deere's conclusion. It's possible Lewis isn't telling the truth; but the Defendants didn't prove that by the greater weight of the evidence. Their motion for summary judgment on non-exhaustion, 53 , is therefore denied. Signed by Judge D. P. Marshall Jr. on 8/24/2016. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
ARRON M. LEWIS
ADC #151373

v.

PLAINTIFF
No. 5:15-cv-254-DPM-BD

JACQUELINE CARSWELL, APN, Tucker
Maximum Security Unit; PATRICK DRUMMOND,
APN, Tucker Maximum Security Unit; and
JAMES SHELTON, Medical Doctor, Tucker
Maximum Security Unit

DEFENDANTS

ORDER
1. On de nova review, the Court adopts the June recommendation, NQ 78,

and overrules Lewis's objections, NQ 81.

FED.

R. Crv. P. 72(b)(3). Lewis's

motion for summary judgment, NQ 71, is denied without prejudice as
premature. He may refile it when discovery is completed.
2. The opposed motion to supplement objections, NQ 82, is denied. The

new affidavit from another prisoner isn't a supplement to the objections; it's
more proof for the Defendants' summary judgment motion on exhaustion.
The deadline for filing that motion passed four months ago. Lewis hasn't had
a chance to respond to the affidavit in substance; Magistrate Judge Deere
didn't get to weigh the other prisoner's testimony at the evidentiary hearing;
and the Defendants haven't shown good cause for the Court to consider it

now. This case has been pending for almost a year. It's time to move it
forward.
3. On de nova review-including a review of the testimony and
evidence from the 29 April 2016 evidentiary hearing-the Court adopts the
partial recommendation on exhaustion, Ng 69, and overrules the Defendants'
objections, Ng 74.

FED.

R. CIV. P. 72(b)(3).

The Defendants' chief complaint is that Magistrate Judge Deere didn't
make necessary credibility findings. They say she should have explicitly
decided whether Lewis was telling the truth-whether he" in fact mailed the
two grievances, as alleged, to the Deputy Director[.]" Ng 74 at 7. If Lewis bore
the burden of proving exhaustion, then they'd be right. But he doesn't.
Instead, the Defendants had to prove that Lewis wasn't telling the truth. As
Magistrate Judge Deere noted, proving that negative is a difficult task. That's
the burden the Defendants took on, though, when they raised the exhaustion
defense.
Magistrate Judge Deere concluded that the Defendants didn't carry their
burden. This Court agrees. The greater weight of the evidence doesn't show
non-exhaustion. At best, the proof is in equipoise.

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Lewis says that despite following the ADC' s grievance policy, he got no
responses to the two grievances at issue. He says he mailed them to the
Deputy Director by ADC truck mail to ensure complete exhaustion. ADC
Medical Grievance Coordinator Shelly Byers candidly testified that
grievances - particularly medical ones - don't always get a timely response.
She says the Deputy Director didn't get Lewis's mailed grievances; but she
admits that ADC truck mail is fallible and that incoming and outgoing mail
aren't tracked.
The Court doesn't have to choose whether to believe Byers over Lewis.
Their testimony is reconcilable. Magistrate Judge Deere didn't raise any flag
about either' s demeanor while testifying. Neither person's testimony rings
untrue.

And regardless of what other Courts have found in other

circumstances, the Defendants didn't succeed in undercutting Lewis's
credibility here and tipping the proof in their favor.
In short, the Court agrees with Magistrate Judge Deere's conclusion. It's
possible Lewis isn't telling the truth; but the Defendants didn't prove that by
the greater weight of the evidence. Their motion for summary judgment on
non-exhaustion, Ng 53, is therefore denied.

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So Ordered.

-.
D .P. Marshall Jr.
United States District Judge

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