Jones v. Huff et al

Filing 40

ORDER adopting 34 partial recommendation as modified and overruling 37 & 39 Objections. 22 Motion for summary judgment is granted. Hufff and Henery's 19 Motion for summary judgment partly granted and partly denied without prejudice. 28 Motion for summary judgment denied. Signed by Judge D. P. Marshall Jr. on 8/31/2018. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
KEVIN D. JONES
ADC #112114
v.

PLAINTIFF
No. 5:18-cv-6-DPM

ROMONA HUFF, Health Service
Supervisor, CCS; JOE PAIGE, Warden,
Tucker Unit, ADC; RON BAILEY, Captain,
Tucker Unit, ADC; and HENERY, Doctor

DEFENDANTS

ORDER

1. On de novo review, the Court adopts the recommendation,
NQ 34, as modified, and overrules both the medical Defendants' and

Jones's objections, NQ 37 & NQ 39.

FED.

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

2. The Court adopts the recommendation as to grievances TU-17-

625, TU-17-626, and T-17-628. In a belated objection, Jones argues for
the first time that the Court should excuse his failure to exhaust the first
two of these grievances. He says that prison officials routinely fail to
return the white copy of the grievance to the inmate so they can later
reject the inmate's appeal for failing to attach the necessary paperwork.
This argument fails. When an inmate submits a grievance, he
keeps both a yellow copy and a pink copy. Even if Jones had been
forced to submit one of those copies to proceed to Step 2-which
doesn't appear to have happened here-he still would have had a final

copy to attach to his appeal. NQ 22-1 at 7-8. Jones's objections are
therefore overruled.
3. Grievance TU-17-627 presents harder issues. Defendants first
argue that Jones failed to exhaust this grievance because he didn't name
any of the Defendants in the grievance. Jones's grievance stated that
his pacemaker was going off and that he needed to be taken to a doctor
or the emergency room. NQ 21-2 at 9. The ADC could have denied this
grievance on procedural grounds:

Jones didn't identify anyone in

particular who he felt was denying him treatment.
addressed

the

merits

of Jones' s

broader

But the ADC

complaint.

These

circumstances are closer to those in Hammett than Burns.

Compare

Hammett v. Cofield, 681 F3d 945, 947-48 (8th Cir. 2012), with Burns v.
Eaton, 752 F.3d 1136, 1141-42 (8th Cir. 2014). Defendants' objection is

therefore overruled on this issue.
Defendants next argue that Jones failed to exhaust because he
didn't appeal the favorable grievance response he received. Exhaustion
is an affirmative defense that the Defendants have the burden of
proving. Porter v. Sturm, 781 F.3d 448, 451 (8th Cir. 2015). As it stands
now, though, there's no evidence in the record showing that any more
relief was possible after Jones received his surgery. Booth v. Churner,
532 U.S. 731 (2001); see also Ross v. Blake, 136 S. Ct. 1850, 1859 (2016).
The motion for summary judgment is therefore denied without
prejudice on this point.
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*

*

*

Bailey and Paige's motion for summary judgment, NQ 22, granted.
Huff and Henery's motion for summary judgment, NQ 19, partly
granted and partly denied without prejudice.

Jones's motion for

summary judgment, NQ 28, denied.
So Ordered.

fr.

D .P. Marshall
United States District Judge

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