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Abston v. Shaw

United States District Court, S.D. Mississippi, Northern Division

October 7, 2014

ANTHONY C. ABSTON, Plaintiff,
v.
FRANK SHAW, ET AL., Defendants.

MEMORANDUM OPINION AND ORDER

LINDA R. ANDERSON, Magistrate Judge.

This cause is before the Court on the Motion for Summary Judgment filed by Defendants Alexander, D. Smith, Mason, Pulliam, Jones and Shaw [65].[1] Having considered the record in this matter, the Court grants Defendants' motion for the following reasons.

I. Background

Plaintiff filed this lawsuit pro se and pursuant to 42 U.S.C. § 1983, challenging the conditions of his confinement at the East Mississippi Correctional Facility (EMCF). The Court held an omnibus or Spears hearing in this matter on April 9, 2014, at which Plaintiff was afforded the opportunity to fully explain his claim.[2] At the hearing, all parties consented to the undersigned deciding this case in its entirety. [55].

Plaintiff filed the instant action on March 24, 2013, [3] alleging, inter alia, that he was denied protective custody, wrongfully given an RVR or rules violation for refusing housing, denied due process in connection with a hearing regarding an RVR for having a sharp instrument, discriminated against and denied medical treatment. [1]. At the omnibus hearing, Plaintiff further explained his allegations that Defendants, all of whom worked at EMCF, failed to protect him from assaults by other inmates and discriminated against him because he is homosexual. Plaintiff alleges that on March 9, 2013, an inmate drugged his coffee and then that inmate, together with another inmate, sexually assaulted Plaintiff. Plaintiff claims that he had warned several Defendants that he feared attacks from other inmates. Plaintiff testified that he told Defendants about the attack, yet they would not take him to get medical care or remove him from the zone. Approximately seven days after the attack, according to Plaintiff, a non-party made Defendants take Plaintiff to get medical attention. Plaintiff also claims that he asked Defendants to "red tag"[4] the inmates who attacked him. Plaintiff alleges that both before and after the attack, he had asked not to have any roommates due to the threats Plaintiff had received based on his sexual orientation.

II. Exhaustion

Defendants moved to dismiss this lawsuit because, inter alia, Plaintiff failed to exhaust available administrative remedies before filing suit. [65]. As Defendants point out, the applicable section of the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997(e), 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."

This statute clearly requires an inmate bringing a civil rights action in this Court to first exhaust his available administrative remedies. Booth v. Churner, 532 U.S. 731, 739 (2001). Exhaustion is no longer left to the discretion of the district court, but is mandatory. Porter v. Nussle, 534 U.S. 516, 524 (2002). Exhaustion will not be excused when an inmate fails to timely exhaust his administrative remedies; the exhaustion requirement also means "proper exhaustion." Woodford v. Ngo, 548 U.S. 81, 83-84 (2006). It is not enough to merely initiate the grievance process or to put prison officials on notice of a complaint; the grievance process must be carried through to its conclusion. Wright v. Hollingsworth, 260 F.3d 357, 358 (5th Cir. 2001). This is so regardless of whether the inmate's ultimate goal is a remedy not offered by the administrative process, such as money damages. Id.

It is undisputed that EMCF had a grievance procedure and that Plaintiff utilized it. In support of their motion, Defendants filed the affidavit of Rebecca Naidow, Administrative Remedy Program (ARP) Coordinator at EMCF, detailing Plaintiff's grievances while at EMCF [65-1]. Though Defendants concede that Plaintiff did exhaust administrative remedies regarding his challenge to the RVR for having a sharp instrument, Defendants argue that Plaintiff failed to exhaust with respect to the remainder of his claims. [66] at 11.

In Jones v. Bock, 549 U.S. 199, 211 (2007), the Supreme Court again confirmed that exhaustion is mandatory under the PLRA and that "unexhausted claims cannot be brought in court." The PLRA governs Plaintiff's claims. Accordingly, he was required to complete the EMCF's grievance procedure in its entirety before filing suit under Section 1983. The Fifth Circuit has confirmed that the "pre-filing exhaustion of prisoner grievance processes is mandatory, " and that "district courts have no discretion to excuse a prisoner's failure to properly exhaust." Gonzalez v. Seal, 702 F.3d 785, 788 (5th Cir. 2012) (per curiam); see also Moussazadeh v. Texas Dept. of Criminal Justice, 703 F.3d 781, 788 (5th Cir. 2012).

The Gonzalez Court specifically stated:

... District courts have no discretion to excuse a prisoner's failure to properly exhaust the prison grievance process before filing their complaint. It is irrelevant whether exhaustion is achieved during the federal proceeding. Pre-filing exhaustion is mandatory, and the case must be dismissed if available administrative remedies were not exhausted.

Gonzalez, 702 F.3d at 788.

Naidow's affidavit reflects that before filing this lawsuit Plaintiff exhausted a grievance with respect to the RVR for having a sharp instrument and a grievance concerning losing an orderly job allegedly due to discrimination based on his sexual orientation. [65-1] at 1-2. Plaintiff voluntarily dismissed a grievance concerning "red tagging" certain inmates whom he claimed had labeled him a snitch, before the administrative remedy process was complete. Id. at 1. Plaintiff submitted a grievance regarding his request for protective custody, dated March 4, 2013, but the process was not complete with respect to this grievance until May 13, 2013, [65-1] at 3, after this lawsuit was filed. Naidow avers that ...


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