Williams v. Owens et al

Filing 39

ORDER ADOPTING 35 REPORT AND RECOMMENDATIONS with the exception of the difference in reasoning set forth. The Clerk is directed that this case should no longer be referred to the Magistrate in its entirety. Currently pending motions (Docs. 34, 36, and 37) should, however, remain referred. Signed by Honorable P. K. Holmes, III on August 27, 2014. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
BOBBY D. WILLIAMS
v.

PLAINTIFF
Case No. 2:13-CV-02012

DALE OWENS, Supervisor, Parole and Probation Office;
and JOHNNY SPICKELMIER, Parole Officer

DEFENDANTS

ORDER
Currently before the Court are the findings and recommendations (Doc. 35) of the Honorable
James R. Marschewski, Chief United States Magistrate for the Western District of Arkansas. Also
before the Court are Defendants’ objections (Doc. 38). No response to the objections was filed by
Plaintiff. The Court has conducted a de novo review as to all specified proposed findings and
recommendations to which Defendants have raised objections. 28 U.S.C. § 636(b)(1).
The Magistrate recommends that Defendants’ motion for summary judgment (Doc. 19) be
denied. Defendants moved for summary judgment on the basis that Plaintiff had not exhausted his
administrative remedies as required by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C.
1997e(a). The Magistrate reasoned that the grievance procedure for the unit where Plaintiff was
housed did not apply to Plaintiff’s current claims. Both the Magistrate and Defendants cite to
wording in the grievance procedure (Doc. 21-1) to support their reasoning that the grievance
procedure does not or does apply to Plaintiff’s claims, respectively. The Court adopts the ultimate
recommendation that Defendants’ motion for summary judgment be denied but departs slightly from
the reasoning of the Magistrate. The Court makes no final determination as to whether the grievance
procedure (Doc. 21-1) does or does not apply, as the wording of the procedure could logically be

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construed either way. Rather, the Court finds that summary judgment should be denied based on the
fact that there is at least a genuine issue as to whether the grievance procedure applies to the claims
brought by Plaintiff in this action.
While the grievance procedure cited to by Defendants purports to apply broadly to “the
resolution of complaints that pertain to the administration and operation of the facility or acts by
[Department of Community Correction] DCC employees,”1 the policy also states that the grievance
procedure can be initiated as to “any condition or action within the residential facility operation.”2
Therefore, while the policy could be construed as applicable to Plaintiff’s claims by virtue of the fact
that Defendants are DCC employees, the policy might also be construed as inapplicable to Plaintiff’s
claims by virtue of the fact that his claims have nothing to do with any condition or action taken
within the residential facility operation. The PLRA’s exhaustion requirement is an affirmative
defense that Defendants have the burden of pleading and proving. Nerness v. Johnson, 401 F.3d
874, 876 (8th Cir. 2005) (per curiam). Defendants have failed to meet that burden via the instant
motion for summary judgment.
In addition to the concern over the language used in the grievance policy at issue, the Court
is also not convinced that the PLRA’s exhaustion requirements apply to this case. Title 42 U.S.C.
§ 1997e(a) limits the ability of a prisoner to bring an action “with respect to prison conditions.” See
Porter v. Nussle, 534 U.S. 516, 529 (2002) (discussing the meaning of “prison conditions” in 42
U.S.C. § 1997e and stating that it was plausible “that Congress inserted ‘prison conditions’ into the
exhaustion provision simply to make it clear that preincarceration claims fall outside § 1997e(a), for

1

Doc. 21-1, p. 1, § III(A)(1).

2

Id. at § II (emphasis added).
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example, . . . a § 1983 claim against his arresting officer). Plaintiff’s claim in this case does not arise
from an action or condition that he was subjected to while in prison. Rather, his complaint arises
from actions allegedly taken by Defendants while Plaintiff was neither incarcerated nor in custody.
Therefore, the Court, being well and sufficiently advised, finds that the report and
recommendations (Doc. 35) is ADOPTED, with the exception of the difference in reasoning set forth
above. For the reasons stated herein and in the report and recommendations, IT IS ORDERED that
Defendants’ motion for summary judgment (Doc. 19) is DENIED.
Defendants were directed by the Magistrate to file their motion for summary judgment by
July 1, 2013. They sought and were granted a two-month extension—to August 30, 2013—to file
the motion. Defendants should have raised all arguments supporting their belief that they were
entitled to summary judgment in that same motion. They did not do so and, as a result, now request
the opportunity to file a second motion, which will necessitate another round of motion practice.
Nevertheless, in the interests of defining the issues and expediting adjudication of this matter, the
Court will allow Defendants to file a second motion for summary judgment. As the original deadline
for filing such motion has long since passed, and Defendants should have been prepared to advance
all their arguments at that time, the Court ORDERS that any second motion for summary judgment
be filed on an expedited basis by Monday, September 8, 2014. Once the motion has been filed,
the Court will either set a date for a hearing and allow Plaintiff to respond to the motion by testifying
and presenting exhibits or Plaintiff will be asked to respond in writing and to inform the Court
whether he requires assistance in doing so.
The Clerk is directed that this case should no longer be referred to the Magistrate in its
entirety. Currently pending motions (Docs. 34, 36, and 37) should, however, remain referred.
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IT IS SO ORDERED this 27th day of August, 2014.

/s/P. K. Holmes, III
P.K. HOLMES, III
CHIEF U.S. DISTRICT JUDGE

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