Cody v. Richardson et al

Filing 64

MEMORANDUM AND ORDER granting 46 Defendants' motion for summary judgment; dismissing without prejudice Cody's claims against Defendants; denying 52 Cody's motion for summary judgment; denying 63 Cody's motion for temporary restraining order; and certifying that an in forma pauperis appeal taken from this order and the accompanying judgment is considered frivolous and not in good faith. Signed by Magistrate Judge Patricia S. Harris on 12/12/2017. (ljb)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION

STEVEN CODY
ADC #145160
v.

PLAINTIFF

No: 5:16-cv-00296 PSH

MICHAEL RICHARDSON, et al.

DEFENDANTS

MEMORANDUM AND ORDER
I. Introduction
Plaintiff Steven Cody (a/k/a Ishmael Obama) filed a pro se complaint pursuant to 42 U.S.C.
§ 1983 on September 21, 2016 (Doc. No. 1). In the complaint, he alleged that Captain Michael
Richardson, Warden Randy Watson, Sergeant Patricia Gooley, and McConnell (the “Defendants”)
failed to protect him from assaults by other inmates.
Defendants filed a motion for summary judgment, a brief in support, and a statement of
facts claiming that Cody had not exhausted claims against them before he filed this lawsuit (Doc.
Nos. 46-48). In response, Cody filed a motion for summary judgment, brief in support, and a
statement of facts (Doc. Nos. 52-54). Cody’s motion and supporting pleadings are copies of the
Defendants’ pleadings with some words marked out and additional language added. Defendants
filed a reply to those pleadings (Doc. No. 56), and a response to Cody’s statement of undisputed
facts (Doc. No. 57). Cody recently filed a motion for a temporary restraining order in which he
alleges one of the defendants is verbally assaulting him (Doc. No. 63).
Because defendants’ statement of facts, and the other pleadings and exhibits in the record,
establish that the material facts are not in dispute, the Defendants are entitled to summary judgment

as a matter of law. The Court also denies Cody’s motion for summary judgment and motion for a
temporary restraining order.
II. Standard of Review
Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is proper “if
the pleadings, depositions, answers to interrogatories and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law. FED. R. CIV. P. 56(c); Celotex v. Catrett, 477
U.S. 317, 321 (1986). When ruling on a motion for summary judgment, the court must view the
evidence in a light most favorable to the nonmoving party. Naucke v. City of Park Hills, 284 F.3d
923, 927 (8th Cir. 2002). The nonmoving party may not rely on allegations or denials, but must
demonstrate the existence of specific facts that create a genuine issue for trial. Mann v. Yarnell,
497 F.3d 822, 825 (8th Cir. 2007). The nonmoving party’s allegations must be supported by
sufficient probative evidence that would permit a finding in his favor on more than mere
speculation, conjecture, or fantasy. Id. (citations omitted). A dispute is genuine if the evidence is
such that it could cause a reasonable jury to return a verdict for either party; a fact is material if its
resolution affects the outcome of the case. Othman v. City of Country Club Hills, 671 F.3d 672,
675 (8th Cir. 2012). Disputes that are not genuine or that are about facts that are not material will
not preclude summary judgment. Sitzes v. City of West Memphis, Ark., 606 F.3d 461, 465 (8th
Cir. 2010).
III. Analysis
Defendants argue they are entitled to summary judgment because Cody failed to exhaust
his administrative remedies as to his claim against them before he filed this lawsuit. In support of
their claim that Cody failed to exhaust his administrative remedies, Defendants submitted the

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ADC’s grievance policy; a declaration by Barbara Williams, the ADC’s Inmate Grievance
Supervisor; a copy of Grievance VSM16-03124; and a copy of Grievance VSM16-3126 (Doc.
Nos. 47-1 – 47-4).
The Prison Litigation Reform Act (PLRA) requires an inmate to exhaust prison grievance
procedures before filing suit in federal court. See 42 U.S.C. §1997e(a); Jones v. Bock, 549 U.S.
199, 202 (2007); Jones v. Norris, 310 F.3d 610, 612 (8th Cir. 2002). Exhaustion under the PLRA
is mandatory. Jones v. Bock, 549 U.S. at 211. The PLRA’s exhaustion requirement applies to all
inmate suits about prison life whether they involve general circumstances or particular episodes,
and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516,
532 (2002). The PLRA does not prescribe the manner in which exhaustion occurs. See Jones v.
Bock, 549 U.S. at 218. It merely requires compliance with prison grievance procedures to properly
exhaust. See id. Thus, the question as to whether an inmate has properly exhausted administrative
remedies will depend on the specifics of that particular prison’s grievance policy. See id.
Pursuant to the ADC’s grievance policy, inmates are provided Unit Level Grievance Forms
as part of the Inmate Grievance Procedure. See Doc. No. 47-1 at 4. To resolve a problem, an
inmate must first seek informal resolution by submitting a Step One Unit Level Grievance Form
within 15 days after the occurrence of the incident. Id. at 5. Inmates are to “specifically name
each individual involved for a proper investigation and response to be completed by the ADC.”
Id. at 4. An inmate must be “specific as to the substance of the issue or complaint to include the
date, place, personnel involved or witnesses, and how the policy or incident affected the inmate
submitting the form.” Id. at 5-6. A problem solver investigates the complaint and provides a
written response at the bottom of the form. Id. If the inmate is not satisfied with the resolution,
he may then complete Step Two of the grievance procedure and submit the form as a formal

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grievance. Id. at 8. If the inmate receives no response, or if the inmate is not satisfied with the
response, the inmate can appeal to the appropriate Chief Deputy/Deputy/Assistant Director. Id. at
10-11. An inmate must include the original Unit Level Grievance Form with his or her appeal.
Id. at 11. Once the Chief Deputy/Deputy/Assistant Director responds, the grievance process is
exhausted. Id. at 12. According to the ADC’s grievance policy, the entire grievance procedure
should be completed within 76 working days absent an extension or unforeseen circumstances. Id.
at 13. The grievance policy specifically states that inmates must exhaust administrative remedies
at all levels of the procedure before filing a federal civil rights lawsuit. Id. at 17.
According to Williams’ declaration, Cody submitted two grievances that could potentially
relate to the issues of this case: VSM16-03124 and VSM16-03126. Doc. No. 47-2 at 1. Both
grievances were filed on September 20, 2016, the day before this lawsuit was filed. In Grievance
VSM16-03124, Cody alleged that he notified Richardson and Cooley that he could not go to
barracks 10 because of Aryan inmates waiting to assault him. Cody did not name Watson or
McConnell in VSM16-03124. The warden responded to VSM16-03124 on October 4, 2016. The
grievance was found without merit, and was appealed by Cody on October 6, 2016. Grievance
VSM16-03126 named Richardson and Watson.1 VSM16-03126 was rejected on September 20,
2016, as duplicative of VSM16-03124. Cody appealed the rejection on October 3, 2016, and the
appeal was denied on November 15, 2016.
Pursuant to the ADC’s grievance policy, inmates must exhaust administrative remedies at
all levels of the procedure in order to exhaust their administrative remedies. The grievances filed

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Defendants also argue that Defendant McConnell is entitled to summary judgment because he
was not named or described in either grievance. See e.g., Burns v. Eaton, 752 F.3d 1136 (8th Cir. 2014)
(finding claim not exhausted where the “ADC was not asked to evaluate the [the defendant] or the distinct
§ 1983 claims first asserted” by the prisoner in the lawsuit). The Court does not reach this argument
because it finds Defendants are entitled to summary judgment on other grounds.
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by Cody are unexhausted because he did not complete the appellate process before he filed this
lawsuit. Proper exhaustion “‘means using all steps that the agency holds out, and doing so properly
(so that the agency addresses the issues on the merits).’” Woodford v. Ngo, 548 U.S. 81, 90 (2006)
(emphasis in original) (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)).
In his motion for summary judgment and accompanying brief, Cody maintains that
exhaustion is not required in emergency situations and that he filed the lawsuit under the
“imminent danger clause.” There is no imminent danger exception to the PLRA’s exhaustion
requirements. See Johnson v. Russell, No. 5:15CV00129-JLH-JJV, 2015 WL 4506412, at *3 (E.D.
Ark. July 23, 2015) (“The Eighth Circuit has excepted inmates from PLRA exhaustion compliance
in two circumstances, namely ‘when prison officials have prevented prisoners from utilizing the
procedures, or when officials themselves have failed to comply with the grievance procedures.’”)
(quoting Gibson v. Weber, 431 F.3d 339, 341 (8th Cir. 2005) (internal citations omitted)). Cody
does not argue that either exception applies to this case; his use of the grievance procedure on
September 20, 2016 shows that it was available to him. Further, he cannot show that any failure
to follow the grievance procedure led to his filing this lawsuit on September 21, 2016, before
receiving a response to his September 20 grievances. Even if Cody subjectively believed that
completing the grievance procedure would not adequately address his complaints, he was still
required to exhaust. See Chelette v. Harris, 229 F.3d 684, 688 (8th Cir. 2000) (“Section 1997e(a)
says nothing about a prisoner’s subjective beliefs, logical or otherwise, about the administrative
remedies that might be available to him.”).
Additionally, the ADC grievance procedure does not provide an exception to
administrative exhaustion requirements because an inmate is in fear of imminent danger. Rather,
Administrative Directive 14–16 provides for expedited grievances in emergency situations. An

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inmate may fill in the date beside “Emergency Grievance” on the Unit Level Grievance Form to
designate an emergency, and present the form to any staff, preferably the designated problemsolving staff. If that staff determines that an emergency does exist, corrective action is to be taken
as soon as possible and no later than twenty-four (24) hours. Cody marked each of his grievances
as emergencies, but he did not wait for a response before filing this lawsuit the next day.
Because Cody did not fully complete the ADC’s grievance procedure by waiting on
decisions on his appeals before filing this lawsuit, he did not properly exhaust his administrative
remedies with respect to his claims against Defendants. Accordingly, summary judgment is
entered in favor of Defendants, and Cody’s claims against them are dismissed without prejudice.
IV. Conclusion
For the reasons described herein, Defendants’ motion for summary judgment (Doc. No.
46) is granted, and Cody’s claims against Defendants are dismissed without prejudice. Further,
Cody’s motion for summary judgment (Doc. No. 52) is denied, and his motion for temporary
restraining order (Doc. No. 63) is also denied.2 The Court certifies that an in forma pauperis appeal
taken from this order and the accompanying judgment is considered frivolous and not in good
faith.
SO ORDERED this 12th day of December, 2017.

____________________________________
UNITED STATES MAGISTRATE JUDGE

2
Cody’s motion for a temporary restraining order is unrelated to this lawsuit. He alleges that one
of the defendants has verbally harassed him recently. Even if this case were not subject to dismissal, the
injunctive relief Cody seeks is inappropriate. Error! Main Document Only.A preliminary injunction is
appropriate to grant intermediate relief “of the same character of that which may be granted finally,” but
inappropriate for dealing with matters “lying wholly outside issues in the suit.” DeBeers Consol. Mines
Ltd. v. United States, 325 U.S. 212, 220 (1945). Additionally, verbal insults or threats generally do not
rise to the level of a constitutional violation. See Hopson v. Fredericksen, 961 F.2d 1374, 1378 (8th Cir.
1992).
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