United States District Court, N.D. Mississippi, Greenville Division
NEAL B. BIGGERS, Senior District Judge.
This matter comes before the court on the pro se prisoner complaint of Robert Anthony Hubbard, who challenges the conditions of his confinement under 42 U.S.C. § 1983. For the purposes of the Prison Litigation Reform Act, the court notes that the plaintiff was incarcerated when he filed this suit. The defendants have moved for summary judgment; Hubbard has not responded, and the matter is ripe for resolution. For the reasons set forth below, the defendants' motion for summary judgment will be granted, and judgment will be entered for the defendants.
Exhaustion of Administrative Remedies
Before a federal court may address the merits of a prisoner complaint filed under 42 U.S.C. § 1983, the court must ensure that the plaintiff has exhausted his administrative remedies. See Dillon v. Epps, 3:12CV561-RHW, 2013 WL 2636731 (S.D.Miss. June 12, 2013); citing Wright v. Hollingsworth, 260 F.3d 357 (5th Cir. 2001). Under the Prison Litigation Reform Act, 42 U.S.C. § 1997e provides that "[n]o action shall be brought with respect to prison conditions under section 1983... by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." Id .; citing, Days v. Johnson, 322 F.3d 863, 866 (5th Cir. 2003). Exhaustion is mandatory for "all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Id .; citing Alexander v. Tippah County, Miss., 351 F.3d. 626, 630 (5th Cir. 2003).
In the present case, Hubbard has not provided any evidence showing that he has exhausted the prison grievance process. Though Hubbard did not follow the formal grievance process, the Mississippi Department of Corrections Legal Claims Adjudicator nonetheless accepted the request on November 11, 2009. The claim was set aside because Hubbard had several other grievances pending that, under the Administrative Remedy Program, had to be addressed first. Though he testified in his deposition that he received an adverse final ruling on his grievance, he has not provided any documentation to support that allegation. As such, he has not exhausted his administrative remedies, and, under the Prison Litigation Reform Act, the court must dismiss the instant case.
Summary Judgment Standard
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). "The moving party must show that if the evidentiary material of record were reduced to admissible evidence in court, it would be insufficient to permit the nonmoving party to carry its burden." Beck v. Texas State Bd. of Dental Examiners, 204 F.3d 629, 633 (5th Cir. 2000) (citing Celotex Corp. v. Catrett, 477 U.S. 317 (1986), cert. denied, 484 U.S. 1066 (1988)). After a proper motion for summary judgment is made, the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986); Beck, 204 F.3d at 633; Allen v. Rapides Parish School Bd., 204 F.3d 619, 621 (5th Cir. 2000); Ragas v. Tennessee Gas Pipeline Company, 136 F.3d 455, 458 (5th Cir. 1998). Substantive law determines what is material. Anderson, 477 U.S. at 249. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id., at 248. If the non-movant sets forth specific facts in support of allegations essential to his claim, a genuine issue is presented. Celotex, 477 U.S. at 327. "Where the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L.Ed.2d 538 (1986); Federal Savings and Loan, Inc. v. Krajl, 968 F.2d 500, 503 (5th Cir. 1992). The facts are reviewed drawing all reasonable inferences in favor of the non-moving party. Allen, 204 F.3d at 621; PYCA Industries, Inc. v. Harrison County Waste Water Management Dist., 177 F.3d 351, 161 (5th Cir. 1999); Banc One Capital Partners Corp. v. Kneipper, 67 F.3d 1187, 1198 (5th Cir. 1995). However, this is so only when there is "an actual controversy, that is, when both parties have submitted evidence of contradictory facts." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994); see Edwards v. Your Credit, Inc., 148 F.3d 427, 432 (5th Cir. 1998). In the absence of proof, the court does not "assume that the nonmoving party could or would prove the necessary facts." Little, 37 F.3d at 1075 (emphasis omitted).
Though Hubbard has not exhausted his administrative remedies, the court will nonetheless address the merits of his claims. The events in the present case occurred at the Carroll-Montgomery County Regional Correctional Facility ("Carroll County"). On September 5, 2009, Hubbard was accused of possessing a cell phone. Hubbard says that he was leaned back on someone's bed in the open bay area. His back was toward the wall. He claims Defendant Williams "walked up on me  and he was like what [is] in your hands..." Id. at 64. Hubbard responded, "I don't have nothing in my hand." Id. Hubbard contends that he tried to stand up as Defendant Williams approached him. He then claims that Officer Williams, who was standing approximately two feet from him, jumped on him, grabbed him from behind, and placed his arms under Hubbard's arms and his hands behind Hubbard's neck. Id. at 72-73. Hubbard was in the neck hold for about a minute. Id. at 75. He admits that he initially struggled with Defendant Williams; however, Hubbard contends that it was only a "light struggle." Id. at 65.
The officers' accounts of this incident differ slightly. James Gillon is a lieutenant with the Mississippi Department of Corrections ("MDOC"). He was a witness to the alleged incident. He issued Hubbard a Rule Violation Report for the incident on September 8, 2009. According to his report, he and Officer Williams were conducting a security search when they witnessed Hubbard talking on a cell phone. Lieutenant Gillon asked Hubbard to give him the phone, but Hubbard did not comply. Instead, he threw the phone into a room filled with other inmates. Lieutenant Gillon immediately attended to other inmates who had rushed to retrieve the cell phone. Id. At this point, Hubbard claims he was attacked by Officer Williams. The disciplinary hearing regarding the Rule Violation Report was conducted on September 9, 2009. Id. The matter was referred to the District Attorney, and Hubbard was removed from trustee status for six months. Id. He did not receive any other punishment. Id.
Following the incident and resulting Rule Violation Report, Hubbard filed a grievance against Officer Williams. See Pl. Dep. at 80-81. As part of this process, Plaintiff claims that he sent correspondence to Chief Edwards. Hubbard alleges that Chief Edwards verbally responded to him; however, her response was inadequate. Id. Hubbard alleges that on September 15, 2009, he sent a follow-up grievance to Warden A.L. Smith and requested a meeting. Id. at 86-87. Shortly thereafter, the Warden granted Hubbard's request, and the two met to discuss the incident.
Hubbard alleges that Warden Smith attempted to talk him out of filing his complaint - and that Warden Smith threatened him and told him that if he "pushed the issue they were going to bring charges up on me." Id. at 89. Hubbard's deposition testimony, however, contradicts this allegation. Despite the Warden's alleged threats, Hubbard filed his Request for Administrative Relief on October 1, 2009. It was received by the Carroll County Office of Administrative Remedy Program on October 5, 2009. Hubbard filed this pro se lawsuit on July 8, 2011. He named Chief O. Edwards, Lieutenant H. Smith, Warden A.L. Smith, Sargent Terry Williams and Carroll County as defendants in this lawsuit. Lieutenant H. Smith and Chief O. Edwards were dismissed on October 20, 2011 for failure to state a claim upon which relief could be granted.
Neither Carroll County Nor the Defendants Sued In Their Official Capacities Are Liable
A county cannot be liable under Section 1983 unless the alleged constitutional violation proximately resulted from a policy or custom of the county. Monell v. Dept. of Social Servs., 436 U.S. 658 (1978); Bennett v. City of Slidell, 728 F.2d 762 (5th Cir. 1984) ( en banc ), cert. ...