Bledsoe v. McDowel et al
MEMORANDUM OPINION. Signed by Honorable Susan O. Hickey on March 21, 2017. (mll)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
BILLY JOE BLEDSOE
Case No. 4:16-cv-4057
OFFICER BOBBIE MCDOWEL
and WARDEN STEPHEN ARNOLD
Before the Court is the Report and Recommendation filed February 9, 2017, by the
Honorable Barry A. Bryant, United States Magistrate Judge for the Western District of Arkansas.
(ECF No. 44). Defendants Bobbie McDowell and Stephen Arnold have filed objections. (ECF
No. 46). The Court finds the matter ripe for consideration.
Plaintiff filed this action under 42 U.S.C. § 1983 in connection with time spent
incarcerated in the Arkansas Department of Community Correction’s (“ACC”) Southwest
Arkansas Community Correction Center (“SWACCC”) facility.
Plaintiff asserts claims
involving excessive force; sexual abuse; razor blades in his food tray; destruction of his mail,
photos, and grievances; and that he was prevented from filing grievances after he filed a Prison
Rape Elimination Act (“PREA”) complaint.
Plaintiff was incarcerated in SWACCC at all times relevant to this matter. 1 Among other
things, Plaintiff alleges that on April 4, 2016, Defendant McDowell escorted him to a mental
The record indicates that Plaintiff is currently incarcerated in the Arkansas Department of Correction – Randall L.
Williams Correctional Facility in Pine Bluff, Arkansas.
health appointment. While he was handcuffed, Plaintiff alleges that McDowell fondled his
genitals, causing him injury.
On May 1, 2016, Plaintiff informed a SWACCC staff member of the alleged sexual
abuse. Plaintiff was taken to a phone and allowed to call the PREA hotline. On May 2, 2016,
Plaintiff provided a written statement to SWACCC officials, describing the alleged sexual abuse.
SWACCC conducted an investigation, ultimately concluding that Plaintiff’s allegation of sexual
abuse could not be substantiated.
On June 30, 2016, Plaintiff filed this lawsuit. On December 9, 2016, Defendants filed a
Motion for Summary Judgment on Exhaustion, arguing that Plaintiff’s claims should be
dismissed for failure to exhaust his administrative remedies pursuant to the Prison Litigation
Reform Act (“PLRA”). Judge Bryant issued a Report and Recommendation, recommending that
the motion be denied because Plaintiff’s PREA complaint substituted in place of a formal written
grievance—thus exhausting Plaintiff’s administrative remedies—and because genuine issues of
material fact existed as to whether Defendants prevented Plaintiff from filing grievances after he
filed the PREA complaint. On February 22, 2017, Defendants filed objections to the Report and
Recommendation, specifically objecting to the recommendations “(1) that the . . . grievance
policy relieves [Plaintiff’s] obligation to comply with that policy; (2) that [Plaintiff’s] PREA
complaint may substitute as a grievance under the . . . grievance policy; and (3) that [Plaintiff]
has shown a genuine dispute of fact concerning whether he filed grievances or whether the . . .
Defendants prevented him from filing them.”
(ECF No. 46).
According to 28 U.S.C. §
646(b)(1), the Court will conduct a de novo review of all issues related to Defendants’ specific
The standard for summary judgment is well established.
When a party moves for
summary judgment, “[t]he court shall grant summary judgment if the movant shows that there is
no genuine dispute as to any material fact, and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a); Krenik v. County of LeSueur, 47 F.3d 953, 957 (8th Cir. 1995). This
is a “threshold inquiry of . . . whether there is a need for trial—whether, in other words, there are
genuine factual issues that properly can be resolved only by a finder of fact because they
reasonably may be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986). A fact is material only when its resolution affects the outcome of the case. Id.
at 248. A dispute is genuine if the evidence is such that it could cause a reasonable jury to return
a verdict for either party. Id. at 252.
In deciding a motion for summary judgment, the Court must consider all the evidence
and all reasonable inferences that arise from the evidence in a light most favorable to the
nonmoving party. Nitsche v. CEO of Osage Valley Elec. Co-Op, 446 F.3d 841, 845 (8th Cir.
2006). The moving party bears the burden of showing that there is no genuine issue of material
fact and that it is entitled to judgment as a matter of law. See Enterprise Bank v. Magna Bank,
92 F.3d 743, 747 (8th Cir. 1996). The nonmoving party must then demonstrate the existence of
specific facts in the record that create a genuine issue for trial. Krenik, 47 F.3d at 957. However,
a party opposing a properly supported summary judgment motion “may not rest upon mere
allegations or denials . . . but must set forth specific facts showing that there is a genuine issue
for trial.” Id. at 256.
As an initial matter, the Court must examine the ACC’s grievance policy. The Court will
determine whether Plaintiff exhausted his administrative remedies, and if not, whether an
exception applies to excuse the failure to exhaust.
A. Grievance Process
First, the Court must determine whether Plaintiff exhausted his administrative remedies
under ACC’s grievance process. 2
The PLRA provides that “[n]o action shall be brought with respect to prison conditions
under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail,
prison, or other correctional facility until such administrative remedies as are available are
exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is mandatory. Porter v. Nussle, 534 U.S. 516,
In Jones v. Bock, the Supreme Court concluded that “to properly exhaust
administrative remedies prisoners must complete the administrative review process in
accordance with the applicable procedural rules.” 599 U.S. 199, 218 (2007) (internal quotation
marks omitted); see also Woodford v. Ngo, 548 U.S. 81, 90 (2006) (“[P]roper exhaustion of
administrative remedies . . . means using all steps that the agency holds out, and doing so
“The level of detail necessary in a grievance to comply with the grievance
procedures will vary from system to system and claim to claim, but it is the prison’s
requirements, and not the PLRA, that define the boundaries of proper exhaustion.” Jones, 599
U.S. at 218.
A prisoner’s remedies are exhausted “when [the] inmate pursues the prison
grievance process to its final stage and receives an adverse decision on the merits.” Hammett v.
Cofield, 681 F.3d 945, 947 (8th Cir. 2012).
ACC’s grievance procedure is outlined in the Resident Handbook given to all new SWACCC residents. The
record shows that Plaintiff received a copy of the Resident Handbook when he was transferred to SWACCC on
November 20, 2015. (ECF No. 42-5).
Judge Bryant stated that the record indicated that Plaintiff filed a PREA complaint and
submitted a written statement. Judge Bryant was not persuaded by Defendants’ argument that a
PREA complaint does not substitute as a “grievance,” stating that this argument conflicts with
the plain language of ACC’s grievance policy. Defendants object to this recommendation,
arguing that Judge Bryant has misconstrued the grievance process, which Defendants state
requires prisoners to undergo a separate two-step administrative grievance procedure that does
not include filing a PREA complaint.
ACC’s grievance process involves two steps. The first step consists of two parts—
submitting an informal complaint and a formal written grievance. A prisoner must first attempt
to informally resolve issues by either submitting a “Complaint Form for Residents” or by
discussing the matter with an appropriate staff member. 3 (ECF No. 30-2). If the problem is not
resolved after this informal complaint, the prisoner must then submit a formal written grievance
on a “Grievance Form for Residents” to SWACCC’s grievance officer. 4 Submission of the
formal written grievance completes step one of the grievance process.
If the prisoner is unsatisfied with the response to his formal written grievance, he may
proceed to step two of the process by submitting a “Resident Appeal Form.” The prisoner’s
appeal will be ruled on within thirty days, at which point the prisoner has exhausted his
administrative remedies under the grievance policy.
The grievance policy provides that if a prisoner alleges sexual abuse, he is not required to complete the “informal
complaint” part of step one. In the present case, Plaintiff alleges sexual abuse, and thus he is not required to have
made an informal complaint in order to exhaust his administrative remedies.
This formal written grievance must ordinarily be submitted within five days of the complained-of occurrence, but
ACC’s grievance policy states that there is no time limit for filing a grievance about sexual abuse.
The Resident Handbook given to all SWACCC inmates contains a separate section
discussing the PREA. This section lists the number for the Rape Crisis Hotline and provides
instructions on what steps to take if the inmate is the victim of a sexual act.
The record shows that Plaintiff did not submit a grievance as outlined in ACC’s
grievance procedure that is potentially related to his claims in this lawsuit. Plaintiff claims that
he filed multiple grievances while in ACC custody, but the record indicates that he filed only one
grievance, which he properly filed on March 1, 2016, over a month before the alleged sexual
abuse occurred. The record shows that Plaintiff exhausted his administrative remedies with
respect to the March 1, 2016 grievance, in which Plaintiff complained about the lack of a shower
in the suicide-watch cell he was being held in. The record does not show that Plaintiff filed any
The Court finds that Plaintiff’s PREA complaint cannot substitute in place of a properly
filed grievance as outlined in ACC’s grievance procedure. Defendants’ summary-judgment brief
argues that Plaintiff did not timely submit a formal written grievance within five days of the
alleged sexual abuse, to which Judge Bryant correctly pointed out that under the ACC grievance
policy, there is no time limit for submitting a formal written grievance alleging sexual abuse.
However, the ACC grievance policy does not state that prisoners alleging sexual abuse are
relieved of undergoing the ACC grievance process altogether. Allegations of sexual abuse only
relieve prisoners of having to make an initial, informal complaint under the grievance process.
The ACC grievance policy features an entire subsection relating to formal grievances and
alleged sexual abuse. This policy also indicates that responses to formal grievances alleging
sexual abuse may be appealed, suggesting that prisoners must still fully exhaust their
administrative remedies with respect to those grievances. The policy instructs staff members
who process grievances of sexual abuse to “ensure compliance with other applicable guidelines
to include . . . ‘Prison Rape Elimination Act (PREA)’ policies.” (ECF No. 30-2). The Court’s
reading of the ACC grievance policy is that it and the PREA are separate, independent policies,
and thus filing a complaint/grievance under one does not automatically complete the other. In
fact, the ACC grievance policy is explicit that a formal written grievance must be made on a
“Grievance Form for Residents.”
Nothing in the record indicates that Plaintiff’s PREA
complaint or the subsequent written account of the incident was made on this specific form.
Bearing in mind that ACC sets the requirements of properly exhausting administrative
remedies, the Court finds that Plaintiff did not exhaust his administrative remedies. Because he
alleged sexual abuse, he was not required to make an informal complaint—although it is possible
that he nonetheless completed this step when he asked to make a PREA complaint and informed
SWACCC staff members of the allegations. However, Plaintiff was still required to complete
the remainder of the ACC grievance process, and he never submitted a formal written grievance
regarding the allegations of sexual abuse—or any other claim made in in this lawsuit—on the
designated “Grievance Form for Residents.”
Therefore, Plaintiff did not exhaust his
administrative remedies pursuant to the ACC grievance process.
B. Prevented from Filing Grievances
The Court must now determine whether Plaintiff’s failure to exhaust his administrative
remedies may be excused.
The Eighth Circuit has recognized two exceptions to the PLRA exhaustion requirement:
(1) when officials have prevented prisoners from utilizing the grievance procedures; or (2) when
the officials themselves fail to comply with the grievance procedures. See Gibson v. Weber, 431
F.3d 339, 341 (8th Cir. 2005).
Judge Bryant recommended that a genuine issue of disputed fact existed as to whether
Defendants prevented Plaintiff from filing grievances and whether Defendants themselves
complied with the grievance procedure. Judge Bryant based this recommendation on Plaintiff’s
assertions in his Complaint and in his supplemental response to the summary judgment motion
that Defendants destroyed or otherwise prevented him from filing grievances after he made his
Defendants object to this recommendation, arguing that Plaintiff has produced no
evidence in support of his claim that he was prevented from filing grievances. Defendants argue
that Plaintiff must rely on more than unsubstantiated allegations in his Complaint, and that, in
order to survive summary judgment, Plaintiff must meet proof with proof. Defendants argue that
Plaintiff has not met this burden.
Federal Rules of Civil Procedure 56(c) provides that a party must generally support its
opposition to summary judgment by “citing to particular parts of materials in the record.” The
pleadings of a pro se plaintiff are to be liberally construed. Haines v. Kerner, 404 U.S. 519, 520
(1972). However, Plaintiff must nonetheless present evidence to defeat Defendants’ summary
judgment motion. National Bank of Commerce v. Dow Chemical Co., 165 F.3d 602, 607 (8th
Cir. 1999) (“Once a party moving for summary judgment has made a sufficient showing, the
burden rests with the non-moving party to set forth specific facts, by affidavit or other evidence,
showing that a genuine issue of material fact exists.”). To this end, 28 U.S.C. § 1746 provides
that an unsworn declaration may serve as an alternative to a formally attested affidavit if it is
written, signed, dated, and states “under penalty of perjury” that the information within is true
and correct. Banks v. Deere, 829 F.3d 661, 668 (8th Cir. 2016).
Plaintiff’s supplementary response to the summary judgment motion (ECF No. 38) is
written, signed, dated, and contains language stating under penalty of perjury that the
information within is true and correct. Thus, the Court finds that Plaintiff’s supplementary
response is a valid unsworn declaration that may be considered as evidence for summary
judgment purposes. However, the Court finds that Plaintiff does not state in his supplementary
response that Defendants prevented him from filing grievances. In response to question 11 of the
supplementary response, which asked if he filed a grievance related to his allegation of sexual
abuse, Plaintiff states that he thought he had filled out requests and complaints, but that “they
could and did just throw them away.” (ECF No. 38). The Court finds that this statement is
insufficient because it does not state that he attempted to file formal written grievances which
were thrown away by SWACCC staff, but instead states that he filled out requests and
complaints, which he alleges were thrown away. Moreover, Plaintiff’s response to question 13,
which asks if he filed a grievance related to the other allegations in this case, states only that he
filed a complaint related to the other allegations. He does not state that he filed or attempted to
file a formal written grievance. 5
As discussed in the previous section, an informal complaint is different from a formal
written grievance under ACC’s grievance process. Plaintiff’s response to question 13 shows that
he is aware of the distinction between a complaint and a grievance, as he states that a complaint
is the first step of the grievance process. Additionally, Plaintiff successfully exhausted his
administrative remedies with respect to a previous, unrelated grievance, showing that he
understands ACC’s grievance process and its various steps.
In addition, because Plaintiff’s other allegations in this action do not involve sexual abuse, the ACC grievance
policy requires him to have filed his formal written grievance within five days of each complained-of occurrence.
Plaintiff’s only other reference to him being prevented from filing grievances is found in
his Complaint.6 This is insufficient to overcome Defendants’ summary judgment motion. See
Thomas v. Hungerford, 23 F.3d 1450, 1454 (8th Cir. 1994) (“A plaintiff opposing a properly
supported summary judgment motion may not rest upon the allegations in his complaint.”).
Plaintiff is required to present specific facts, by affidavit or other evidence, showing that a
genuine issue of material fact exists, and Plaintiff has not done this. Therefore, the Court finds
that Plaintiff has not offered evidence to create a genuine dispute of material fact as to whether
the Eighth Circuit-recognized exceptions to the PLRA’s exhaustion requirement apply in this
The Court does not easily arrive at this conclusion. Plaintiff’s allegations, particularly
those regarding sexual abuse of an inmate by a guard, are very troubling, and the Court would
rather see the claims decided on the merits rather than dismissed on a procedural technicality.
However, the law is clear that Plaintiff must have first exhausted his administrative remedies
under ACC’s grievance procedure before he can bring a § 1983 action. Plaintiff has presented
no evidence that he has done so. Plaintiff has also not provided any evidence, other than
unsubstantiated allegations in his pleadings, that Defendants prevented him from filing
grievances after he made his PREA complaint. Therefore, the Court must grant summary
judgment on Plaintiff’s claims.
For the reasons stated above, the Court declines to adopt the Report and
Plaintiff arguably also makes this allegation in his first response to the summary judgment motion (ECF No. 36), in
which he states that he was locked in a suicide-watch cell and “not given any paperwork complaints
forms/grievances.” He states further that the SWACCC staff must do their jobs if those papers are to be finished
properly. However, even if the Court were to construe this as Plaintiff making a claim of being prevented from
filing grievances, the filing is not evidence with which Plaintiff may defeat a summary judgment claim, as it is not
an affidavit or unsworn declaration, and does not cite to other evidence within the record.
Recommendation. (ECF No. 44). Defendants’ Motion for Summary Judgment on Exhaustion
(ECF No. 30) is hereby GRANTED. Plaintiff’s case is DISMISSED WITH PREJUDICE. A
separate Judgment consistent with this Order will be entered.
IT IS SO ORDERED, this 21st day of March, 2017.
/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge
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