Stowell v. Grey et al

Filing 24

ORDER approving and adopting in part 20 Proposed Findings and Recommendations; granting 16 Defendant Telly Grey's motion for summary judgment on exhaustion of administrative remedies; granting 23 Plaintiff Christopher Stowell's moti on for copies; directing the Clerk to transmit copies of the docket filings to Mr. Stowell at his listed address; dismissing this case as all of Mr. Stowell's claims have been dismissed by this Court's current and prior 22 Orders; denying the relief Mr. Stowell seeks; and certifying that an in forma pauperis appeal from this Order would not be taken in good faith. Signed by Judge Kristine G. Baker on 9/19/ 2017. (cmn)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
CHRISTOPHER STOWELL
ADC #130247
v.

PLAINTIFF
Case No. 5:16-cv-00318 KGB-JJV

TELLY GREY, Lieutenant,
Delta Regional Unit, ADC; et al.

DEFENDANTS
ORDER

Before the Court are the Proposed Findings and Recommendations submitted to the Court
by United States Magistrate Judge Joe J. Volpe (Dkt. No. 20). Plaintiff Christopher Stowell has
timely filed an objection (Dkt. No. 21). Also pending before the Court is Mr. Stowell’s motion
for copies (Dkt. No. 23).

After careful consideration of the Proposed Findings and

Recommendations, Mr. Stowell’s timely objections, and a de novo review of the record, the Court
concludes for the reasons stated in this Order that the Proposed Findings and Recommendations
shall be approved of and adopted in part. The Court grants defendant Lieutenant Telly Grey’s
motion for summary judgment on exhaustion of remedies (Dkt. No. 15), dismisses this case
without prejudice for failure to exhaust administrative remedies, and grants Mr. Stowell’s motion
for copies (Dkt. No. 23).
The Court writes separately to address Mr. Stowell’s objections. Mr. Stowell asserts that
there is a genuine issue of material fact concerning whether or not the appeal of his formal
grievance DR-16-00242 was timely. The Prison Litigation Reform Act (“PLRA”) states that “[n]o
action shall be brought with respect to prison conditions … until such administrative remedies as
are available are exhausted.” 42 U.S.C. § 1997e(a). Under the PLRA, failure to exhaust the
available administrative remedies is an affirmative defense, with the burden of proof falling on the

defendant. Lenz v. Wade, 490 F.3d 991, 993 n. 2 (8th Cir. 2007) (citing Jones v. Bock, 549 U.S.
199, 216 (2007)). “Compliance with prison grievance procedures, therefore, is all that is required
by the PLRA to ‘properly exhaust.’” Jones, 549 U.S. at 218.
To exhaust properly their administrative remedies, inmates in the Arkansas Department of
Correction (“ADC”) generally must file an informal resolution, formal grievance, and appeal to
the Assistant or Deputy Director level (Dkt. No. 16, Ex. C, at 1-2). Inmates must move through
each of these steps in a timely fashion. The informal resolution or Unit Level Grievance Form
must be completed and submitted within 15 days after the occurrence of the incident (Id. at 5).
After the receipt of this complaint, a problem solver must meet with the inmate within three
working days (Id. at 6). If the problem cannot be resolved, the inmate has three working days from
the receipt of the problem solver’s response to file a formal grievance (Id. at 8). The grievance
officer shall then transmit an acknowledgment or rejection of the Unit Level Grievance Form to
the inmate within five working days after receipt (Id. at 9). If this formal grievance is rejected, the
inmate may appeal to the Deputy Director level within five working days (Id. at 10).
Here, Mr. Stowell filed an informal resolution, Unit Level Grievance Form DR-16-00242
on June 9, 2016 (Dkt. No. 16, Ex. B). Sgt. Derwin Lee acknowledged that he received this form
on June 10, 2016 (Id.). However, Sgt. Lee failed to note the day that he returned Mr. Stowell’s
informal grievance by leaving the blank “Staff Signature & Date Returned” empty (Id.). Mr.
Stowell notes this absence in his response to defendant’s motion for summary judgment. He states,
“Sgt. Derwin Lee failed to date the grievance. . . thus creating a conflict of when this grievance
was served.” (Dkt. No. 19). Lt. Grey asserts, but provides no documentation supporting, that Sgt.
Lee returned the informal resolution on June 10, 2016 (Id.). Mr. Stowell submitted a formal
grievance on June 20, 2016 (Id). That same day, Lydia Godfrey, the unit Grievance Officer,

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rejected Mr. Stowell’s formal grievance as untimely (Id.). Mr. Stowell appealed that rejection to
Assistant Director Dexter Payne on June 28, 2016 (Id.). Director Payne agreed that Mr. Stowell’s
grievance was untimely and rejected his appeal (Id.).
Viewing the evidence in a light most favorable to the nonmoving party, a genuine issue of
material fact may exist concerning the timeliness of Mr. Stowell’s formal grievance. Sgt. Lee
failed to specify the date that Mr. Stowell’s informal grievance was returned to Mr. Stowell.
Because of this, the Court cannot be certain that Mr. Stowell’s formal grievance was untimely.
Viewing the evidence in a light most favorable to the nonmoving party Mr. Stowell, Sgt. Lee could
have returned his response to Mr. Stowell as late as June 15, 2016 – three working days after it
was received. Accordingly, Mr. Stowell would have been entitled to three working days from June
15, 2016, to file a formal grievance. This would make Mr. Stowell’s grievance filed on June 20,
2016, timely rather than untimely under ADC policy.
Despite this, Mr. Stowell still failed to exhaust properly his administrative remedies before
filing suit. Mr. Stowell’s appeal to the Assistant Director Dexter Payne was untimely. This fact
is undisputed. Mr. Stowell received the rejection of his unit level grievance on June 20, 2016, and
he appealed on June 28, 2016 – six working days later. Accordingly, Mr. Stowell failed to file his
appeal within five working days of the rejection of his formal grievance and did not exhaust his
administrative remedies as required by ADC policy. As a result, his current claim is barred by his
failure to exhaust, and defendant Lt. Grey remains entitled to summary judgment, as Judge Volpe
concluded in his Proposed Findings and Recommendations.
It is therefore ordered that:
1.

Defendant Telly Grey’s motion for summary judgment on exhaustion of

administrative remedies is granted (Dkt. No. 16).

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2.

Plaintiff Christopher Stowell’s motion for copies is granted (Dkt. No. 23). The

Court directs the Clerk to transmit copies of the docket filings to Mr. Stowell at his listed address.
3.

This case is dismissed, as all of Mr. Stowell’s claims have been dismissed by this

Court’s current and prior Orders (Dkt. No. 22). The relief Mr. Stowell seeks is denied.
4.

The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an in forma pauperis

appeal from this Order would not be taken in good faith.
It is so ordered this the 19th day of September, 2017.

__________________________
Kristine G. Baker
United States District Judge

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