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Ewing v. Richie

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

February 23, 2017

RICKY RONNELL EWING PLAINTIFF
v.
DENSTINY RICHIE, Nurse, et al. DEFENDANTS

         ORDER FINDING MOOT PLAINTIFF'S [25] MOTION TO EXTEND DEADLINE FOR FILING OBJECTIONS; OVERRULING PLAINTIFF'S [26] OBJECTIONS; ADOPTING MAGISTRATE JUDGE'S [22] REPORT AND RECOMMENDATION; GRANTING DEFENDANT DENSTINY RICHIE'S [18] MOTION TO DISMISS FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES; AND DISMISSING PLAINTIFF'S CLAIMS WITHOUT PREJUDICE

          HALIL SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE

         BEFORE THE COURT are Plaintiff Ricky Ronnell Ewing's Motion [25] to Extend Deadline for Filing Objections and his Objections [26] to the Report and Recommendation [22] of United States Magistrate Judge John C. Gargiulo, entered in this case on January 9, 2017, regarding Defendant Denstiny Richie's Motion [18] to Dismiss for Failure to Exhaust Administrative Remedies. Based upon a review of Plaintiff's Complaint [1], Defendant Richie's Motion [18], related pleadings, and relevant legal authority, the Magistrate Judge recommended that Defendant Richie's Motion [18] be granted and that Plaintiff's claims be dismissed without prejudice. R. & R. [22] at 8.

         After thoroughly reviewing Plaintiff's Objections [26], the Magistrate Judge's Report and Recommendation [22], Defendant Richie's Motion [18] to Dismiss, the record, and relevant legal authority, the Court finds that Plaintiff's Objections [26] should be overruled and that the Magistrate Judge's Report and Recommendation [22] should be adopted as the finding of the Court. Defendant Richie's Motion [18] to Dismiss should be granted, and Plaintiff's claims should be dismissed without prejudice. Because the Court has considered Plaintiff's late-filed Objections [26], Plaintiff's Motion [25] to Extend Deadline for Filing Objections is rendered moot.

         I. BACKGROUND

         Plaintiff Ricky Ronnell Ewing (“Plaintiff” or “Ewing”) filed his Complaint [1] pursuant to 42 U.S.C. §1983 in this Court on March 10, 2016. At that time, Plaintiff was incarcerated at the South Mississippi Correctional Institution (“SMCI”) in Leakesville, Mississippi. See Compl. [1] at 1. The Complaint [1] named as Defendants two correctional officers and Nurse Denstiny Richie (“Defendant Richie”). Id. The Court previously dismissed Plaintiff's claims against the two correctional officers for failure to state a claim, Order [11] at 1-3, leaving only Plaintiff's claims against Defendant Richie for resolution.

         Plaintiff asserts that on December 31, 2015, [1] Defendant Richie assaulted and threatened him. Compl. [1] at 4. Plaintiff asks the Court to grant him time-served and release him from the custody of the Mississippi Department of Corrections (“MDOC”) with his “Golden Seal” and $2, 700, 000.00 damages. Id.

         In the form Complaint for § 1983 claims, Plaintiff responded affirmatively when asked whether he had “completed the Administrative Remedy Program [“ARP”] regarding the claims presented in this complaint?” Compl. [1] at 3. Plaintiff asserted that he had completed an ARP form, which he attached as an exhibit to his Complaint, but that a J. Cooley and R. Pennington had not processed his ARP. Id. Plaintiff had not “heard anything yet” and was “still waiting.” Id. According to Plaintiff, his “ARP [has] been tempted [sic] with.” Id.

         On July 18, 2016, Defendant Richie filed a Motion [18] to Dismiss for Failure to Exhaust Administrative Remedies. Defendant contends that Plaintiff failed to exhaust his available administrative remedies under the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a) (the “PLRA”), mandating dismissal of his claims. Def.'s Mem. [19] at 3-6. Defendant alternatively argues that, even if Plaintiff's allegations were considered on their merits, Plaintiff has failed to state a deliberate indifference claim against Defendant Richie. Plaintiff filed Responses [20], [21] in opposition to Defendant Richie's Motion [18], maintaining that he has filed an ARP regarding this claim, but that the ARP has not been processed.

         On January 9, 2017, the Magistrate Judge entered a Report and Recommendation [22]. The Magistrate Judge determined that Plaintiff had failed to exhaust his administrative remedies because, even if Plaintiff had filed an ARP concerning the claims in this lawsuit, “[t]he law is clear that backlogging of Plaintiff's grievance does not excuse his failure to exhaust available administrative remedies.” R. & R. [19] at 8. The Magistrate Judge recommended that Defendant Richie's Motion [18] to Dismiss be granted and that Plaintiff's claims be dismissed without prejudice. Id.

         Plaintiff submitted Objections [26] to the Report and Recommendation, again claiming that he did in fact file an ARP at SMCI and attaching an ARP as an exhibit. Objs. [26] at 2; ARP [26-1] at 1. Plaintiff argues that “SMCI and MDOC did not process [his] ARP.” Objs. [26] at 2. According to Plaintiff, “J. Cooley and R. Pennington is [sic] not processing them, ” id., and “I don't have nothing [sic] to do with backlog. All that I no [sic] that I file each one of them, ” id.

         II. DISCUSSION

         A. Standard of review Because Plaintiff has submitted written Objections [26] to the Magistrate Judge's Report and Recommendation [22], the Court “make[s] a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); Rule 8(b) of Rules Governing Section 2254 Cases in the United States District Courts. “Such review means that this Court will examine the entire record and will make an independent assessment of the law.” Lambert v. Denmark, Civil No. 2:12-cv-74-KS-MTP, 2013 WL 786356, *1 (S.D.Miss. Mar. 1, 2013). In conducting a de novo review, the Court is not “required to reiterate the findings and conclusions of the magistrate judge.” Koetting v. Thompson, 995 F.2d 37, 40 (5th Cir. 1993).

         B. Plaintiff was required to exhaust his available administrative ...


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