Opinion
4:20-cv-1119-DPM-JJV
05-12-2021
DWAYNE T. HENSON ADC #121669 PLAINTIFF v. LERIZZA NUNAG, LPN, Cummins Unit DEFENDANT
ORDER
D.P. Marshall Jr., United States District Judge
On de novo review, the Court partly adopts and partly declines the partial recommendation, Doc. 18, and partly sustains Nunag's objections, Doc. 19. Fed.R.Civ.P. 72(b)(3).
The Court adopts the unopposed slice of the recommendation dealing with Grievance CU-18-899. It doesn't serve to exhaust the claims in this case.
The Court declines the recommendation as to CU-18-1019. The appeal form might lead to some confusion. But administrative procedures don't have to guard against every possible misinterpretation. Ross v. Blake, 136 S.Ct. 1850, 1859 (2016). The Court can't say that the appeal form renders the grievance process "so opaque that it becomes, practically speaking, incapable of use" or that "no ordinary prisoner can discern or navigate it." Ibid. Further, while Henson did state in a notice, Doc. 4, that he'd had issues with Lieutenant Bass not responding to certain grievances, CU-18-1019 doesn't appear to be one of them, as it proceeded through the usual steps in the process. Doc. 15-4 at 4-7. The motion for summary judgment is therefore granted as to the claims in this grievance.
Because of record issues, the Court declines the recommendation without prejudice as to CU-18-1141 and Henson's unnumbered grievance. With her objections, Nunag submitted two new papers. Doc. 19-1 & 19-2. They aren't accompanied by an affidavit or declaration, though. Compare Doc. 15-5; Shanklin v. Fitzgerald, 397 F.3d 596, 602 (8th Cir. 2005). Similarly, Henson's allegations about Lieutenant Bass are in an unsworn paper. Doc. 4. The Court returns the part of the motion for summary judgment about CU-18-1141 and the unnumbered grievance, Doc. 14, to the Magistrate Judge to settle the record, for any further needed proceedings, and for a new recommendation in due course.
Partial recommendation, Doc. 18, partly adopted, partly declined, and partly declined without prejudice.
So Ordered.