United States District Court, S.D. Mississippi, Northern Division
ORDER
DANIEL
P. JORDAN III, UNITED STATES DISTRICT JUDGE
This
§ 1983 action is before the Court on the Report and
Recommendations [45] of Magistrate Judge F. Keith Ball. Judge
Ball recommended denying Defendants' Motion for Summary
Judgment [39] based upon failure to exhaust administrative
remedies.
Plaintiff
Walter Don Marcoon alleged in his September 11, 2015
Complaint that Defendants failed to provide access to legal
materials, including a notary public, and that
conditions of confinement at RCJ are dangerous and negligent
ripe with acts of inmate on inmate violence, staff on inmate
violence, improper medical services restricted by cost to
jail, improper treatment of inmates by keeping cells
excessively cold, not allowed to use blankets during daylight
hours, food service issues of vendors not wearing hairnets
and gloves continually, and tampering with the mail.
Compl.
[1] at 5. Defendants moved for summary judgment, pointing out
that Marcoon “did not submit the first grievance to
Rankin County until two (2) months after he filed his
Complaint.” Defs.' Mem. [40] at 6 (emphasis in
original). Judge Ball recommended denying the motion,
concluding that jail official Lt. James Rutland's
affidavit did not unambiguously state that Plaintiff's
November 10, 2015 grievance concerning denial of access to
medical treatment “was the only one filed by Marcoon
while he was at the detention center.” R&R [45] at
2.
In
response, Defendants filed an Objection [47], accompanied by
a supplemental affidavit. In it, Lt. Rutland clarifies that
the November 15, 2015 grievance “was the only grievance
submitted by Marcoon to the Rankin County Jail.”
Rutland Supp. Aff. [47-1] at 1. In addition, Defendants
addressed Marcoon's claim that he attempted to obtain a
grievance form from Lt. Rutland, but that Rutland did not
respond. Marcoon Obj. [46]; see also Marcoon Answer
to Obj. [51].[1] Specifically, Marcoon asserts:
2. I hearby solemnly swear that during the months of July and
August of 2015 I tried on 3 sep[a]rate occasions to obtain a
grievance form from Lt. James Rutland by written request as
stipulated by Policy Number 12-3 of Policies and Procedures
of the Rankin County Adult Detention Center to no
avail. Lt. Rutland repeatedly ignored my written request
and several verbal request [sic] I sent by detention officers
on his staff. . . . .
4. I reported these grievances to Sheriff Bailey in writing.
There are no middle steps to a grievance if you are not
allowed to file one!
Marcoon Aff. [51-1] (emphasis in original).
Defendants
submit that “the failure of prison officials to respond
to a grievance does not constitute a valid excuse for failure
to exhaust administrative remedies.” Snellgrove v.
Lappin, No. 5:10cv54-DCB-MTP, 2011 WL 1099906, at *6
(S.D.Miss. Jan. 4, 2011) (internal punctuation and citations
omitted.). As explained by the Fifth Circuit Court of
Appeals,
Section 1997e's exhaustion requirement is satisfied only
if the prisoner “pursue[s] the grievance remedy to
conclusion.” Wright v. Hollingsworth, 260 F.3d
357, 358 (5th Cir. 2001). This requirement does not fall by
the wayside in the event that the prison fails to respond to
the prisoner's grievance at some preliminary step in the
grievance process. Instead, the prison's failure to
timely respond simply entitles the prisoner to move on to the
next step in the process. Thus, it is only if the prison
fails to respond at the last step of the grievance process
that the prisoner becomes entitled to sue, because then there
is no next step (save filing a lawsuit) to which the prisoner
can advance.
Wilson v. Epps, 776 F.3d 296, 301 (5th Cir. 2015)
(emphasis omitted).
The
Rankin County Adult Detention Center requires inmates to
first request an Inmate Grievance Form by writing a letter
requesting such from the Jail Administrator. Procedures
[39-3] at 3. The inmate completes the form and turns it over
to the Jail Administrator, who reviews the grievance,
formulates a response, and provides the inmate a Grievance
Hearing Report Form. Id. at 3-4. If dissatisfied,
the inmate can appeal the decision to an Appeal Hearing
Officer by submitting an appeal in writing to the Jail
Administrator. Id. at 4. And if the inmate disagrees
with the decision of the Appeal Hearing Officer, he may
effect a final appeal directly to the Sheriff. Id.
at 4-5.
According
to Defendants, “[t]here is no indication that Plaintiff
attempted to complete the middle steps of the grievance
procedure.” Defs.' Obj. [47] at 4. But the
“middle steps” involve appealing the decision of
the Jail Administrator by submitting the appeal in writing to
the Jail Administrator. Procedures [39-3] at 4. Here, there
was no decision to appeal, and Marcoon alleges that his
written submissions to the Jail Administrator were a dead
end. He further ...