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Dahl v. Fisher

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

December 16, 2016

JAMES PAUL DAHL PLAINTIFF
v.
MARSHALL FISHER, et al. DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          ROBERT H. WALKER UNITED STATES MAGISTRATE JUDGE.

         Before the Court is [44], Defendants&#3');">3');">3');">39; October 6, 201');">1');">1');">16 motion for summary judgment based on Plaintiff&#3');">3');">3');">39;s failure to exhaust administrative remedies prior to filing this lawsuit, and on grounds of sovereign and qualified immunity. Plaintiff filed no response to the motion, and the matter is ripe for ruling. The parties consented to the exercise of jurisdiction by the United States Magistrate Judge pursuant to 28 U.S.C. § 63');">3');">3');">36(c) and Fed.R.Civ.p. 7');">p. 73');">3');">3');">3, and the case was reassigned to the undersigned for all purposes. [40], [41');">1');">1');">1]

         Facts and Procedural History

         James Paul Dahl, inmate # 72584, is a Mississippi Department of Corrections (MDOC) inmate, confined at South Mississippi Correctional Institution (SMCI) where he is serving two life sentences for convictions of capital murder from Jackson County, Mississippi. He entered the MDOC system March 27, 2006, and testified he has been at SMCI since May 2006. Dahl, pro se and in forma pauperis, filed this prisoner civil rights lawsuit on March 3');">3');">3');">3, 201');">1');">1');">16, [1');">1');">1');">1" name="FN1');">1');">1');">1" id= "FN1');">1');">1');">1">1');">1');">1');">1]asserting violation of his constitutional rights as a result of various conditions at SMCI. Specifically, Dahl&#3');">3');">3');">39;s complaint alleges that gang members and non-gang members are housed together which leads to assaults; that inmates with HIV and other diseases are housed with inmates who do not have the diseases; that when shakedowns are conducted, gang members are allowed back in the unit first and they steal other inmates&#3');">3');">3');">39; property; that the prison posts no guards at the guard towers behind the housing units, which allows outsiders to throw contraband over the fences sometimes resulting in the whole prison being put on lockdown; and that housing units are overcrowded, have roof leaks, and mold.

         Summary Judgment Standard

         Rule 56, Fed.R.Civ.P., requires that a motion for summary judgment be granted “if the movant shows there is no genuine dispute as to any material fact and that the movant is entitled to a judgment as a matter of law.” A material fact is one that might affect the outcome of the suit under the governing law; a genuine dispute exists when the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 242');">477 U.S. 242, 248 (1');">1');">1');">1986). On a motion for summary judgment, the Court views the evidence and draws reasonable inferences most favorable to the non-moving party. Abarca v. Metropolitan Transit Authority, 3');">3');">3');">3d 93');">3');">3');">38');">404 F.3');">3');">3');">3d 93');">3');">3');">38, 940 (5th Cir. 2005). The party who bears the burden of proof at trial also bears the burden of proof at the summary judgment stage. Celotex Corp. v. Catrett, 477 U.S. 3');">3');">3');">31');">1');">1');">17, 3');">3');">3');">322-3');">3');">3');">323');">3');">3');">3 (1');">1');">1');">1986).

         One seeking summary judgment must identify those portions of the pleadings and discovery on file and any affidavits which he believes demonstrate the absence of a genuine issue of material fact. Id., at 3');">3');">3');">325. If the movant fails to show the absence of a genuine issue concerning any material fact, summary judgment must be denied, even if the non-movant has not responded to the motion. John v. State of Louisiana, 2d 698');">757 F.2d 698, 708 (5th Cir. 1');">1');">1');">1985). However, once the movant carries his burden, the burden shifts to the non-movant to show summary judgment should not be granted. The non-movant may not rest upon mere allegations or denials, but must set forth specific facts showing there is a genuine issue for trial by either submitting opposing evidentiary documents or referring to evidentiary documents already in the record which show the existence of a genuine issue of material fact. Celotex, 477 U.S. at 3');">3');">3');">324-3');">3');">3');">325; Reese v. Anderson, 26 F.2d 494');">926 F.2d 494, 498 (5th Cir. 1');">1');">1');">1991');">1');">1');">1); Howard v. City of Greenwood, 3');">3');">3');">3 F.2d 1');">1');">1');">13');">3');">3');">31');">1');">1');">11');">1');">1');">1');">783');">3');">3');">3 F.2d 1');">1');">1');">13');">3');">3');">31');">1');">1');">11');">1');">1');">1, 1');">1');">1');">13');">3');">3');">31');">1');">1');">15 (5th Cir. 1');">1');">1');">1986) (non-movant “must counter factual allegations by the moving party with specific, factual disputes; mere general allegations are not a sufficient response.”). Conclusory allegations, unsubstantiated assertions or the presence of a scintilla of evidence, will not suffice to create a real controversy regarding material facts. Lujan v. National Wildlife Federation, 1');">1');">1');">1');">497 U.S. 871');">1');">1');">1, 888-89 (1');">1');">1');">1990); Hopper v. Frank, 1');">1');">1');">16 F.3');">3');">3');">3d 92');">1');">1');">1');">16 F.3');">3');">3');">3d 92, 97-98 (5th Cir. 1');">1');">1');">1994); Davis v. Chevron U.S.A., Inc., 1');">1');">1');">14 F.3');">3');">3');">3d 1');">1');">1');">1082');">1');">1');">1');">14 F.3');">3');">3');">3d 1');">1');">1');">1082, 1');">1');">1');">1086 (5th Cir. 1');">1');">1');">1994).

         Discussion

         Defendants contend Dahl failed to exhaust administrative remedies as to his claims, [2" name="FN2" id= "FN2">2] and attach as exhibits to their motion the ARP (Administrative Remedy Program) grievances Dahl filed, but did not pursue to completion. In ARP grievance SMCI-1');">1');">1');">16-060, Dahl complained about being housed with gang members, requesting that he be housed in a unit “that does not house any gang organization members, ” and stating he is in prison because he was at a residence “when two colored gang members were killed and [is] subject to attack ... by gang organizations, ” when this becomes known. Dahl requested housing “where no gang activity is taking place” and for the suspension of the officer who moved him to Unit B-1');">1');">1');">1 which “practically houses all gang members.” [44-1');">1');">1');">1, p. 4] Classification Officer Katherine Blount provided the First Step response to SMCI-1');">1');">1');">16-060 on January 23');">3');">3');">3, 201');">1');">1');">16, stating that offenders are housed according to custody, work assignments and medical class, and that Dahl is appropriately housed for his custody, work assignment and medical class. [44-1');">1');">1');">1, p. 7');">p. 7] The affidavit of Joseph Cooley, custodian of ARP records at SMCI, states Dahl received Blount&#3');">3');">3');">39;s response January 3');">3');">3');">30, 201');">1');">1');">16, and did not appeal to the Second Step. [44-1');">1');">1');">1, p. 1');">1');">1');">1]

         On June 29, 201');">1');">1');">16, the Court conducted a Spears/omnibus hearing to screen Dahl&#3');">3');">3');">39;s case. Dahl testified about a January 201');">1');">1');">16 shakedown where inmates were strip-searched and sent outside while officers searched their lockers for contraband. He stated by the time he got back to his locker box, $55 worth of his commissary items had disappeared, and he filed an ARP regarding the shakedown. In ARP grievance SMCI-1');">1');">1');">16-061');">1');">1');">1, Dahl complained that he had received a $90.69 commissary order on December 3');">3');">3');">30, 201');">1');">1');">15, and his goods were in his locker when the January 8, 201');">1');">1');">16 shakedown occurred. But by the time he got back inside after the shakedown, virtually all the items were gone. Dahl requested compensation for his missing commissary and suspension of the officers responsible for the shakedown. [44-2, pp. 4');">p. 4-5] On January 25, 201');">1');">1');">16, Warden Marshal Turner provided the First Step response to SMCI-1');">1');">1');">16-061');">1');">1');">1, stating no officers took Dahl&#3');">3');">3');">39;s canteen and he would not be paid for his allegedly missing items. Cooley&#3');">3');">3');">39;s affidavit states Dahl received the First Step response February 6, 201');">1');">1');">16, and did not appeal to Step Two. [44-2, p. 1');">1');">1');">1]

         In ARP grievance SMCI-1');">1');">1');">16-0663');">3');">3');">3 Dahl complained about overcrowded conditions in the units, leaking roofs and lack of yard call, and requested that the number of inmates in the units be reduced to 60 and that new roofs be installed on all units. [44-3');">3');">3');">3, p. 4');">p. 4] Warden Turner provided the First Step response to the complaint on April 7, 201');">1');">1');">16, stating the units have long been equipped with double racks to accommodate 1');">1');">1');">120 offenders and this concern would have to be taken to a higher office than his; that recreation is given almost daily absent a major disturbance or introduction of contraband incident; and leaks can and will be repaired by the prison contract company. [44-3');">3');">3');">3, p. 7');">p. 7] Cooley&#3');">3');">3');">39;s affidavit with respect to this grievance states the First Step response was sent to Dahl twice, on April 28, 201');">1');">1');">16, and again on August 1');">1');">1');">10, 201');">1');">1');">16, but no signed receipt from Dahl was returned to the ARP. [44-3');">3');">3');">3, p. 1');">1');">1');">1] Dahl failed to proceed to the Second Step on this grievance.

         Exhaustion of Administrative Remedies:

         Exhaustion of administrative remedies through the prison grievance system is a jurisdictional prerequisite for lawsuits filed pursuant to 42 U.S.C. § 1');">1');">1');">1983');">3');">3');">3. Wright v. Hollingsworth, 260 F.3');">3');">3');">3d 3');">3');">3');">357');">260 F.3');">3');">3');">3d 3');">3');">3');">357 (5th Cir. 2001');">1');">1');">1).

No action shall be brought with respect to prison conditions under section 1');">1');">1');">1983');">3');">3');">3 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such ...

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