United States District Court, S.D. Mississippi, Southern Division
MEMORANDUM OPINION AND ORDER
H. WALKER UNITED STATES MAGISTRATE JUDGE
the Court is Defendants' motion for summary judgment
requesting that Plaintiff's complaint be dismissed for
failure to exhaust administrative remedies. Doc. .
Plaintiff Thomas Hobson, proceeding pro se and
in forma pauperis, filed a 42 U.S.C. § 1983
prisoner civil rights complaint alleging that he contracted
Hepatitis C while incarcerated at the South Mississippi
Correctional Institution (SMCI). Doc. . According to
Plaintiff, in 2009 a prison barber cut his hair with dirty
clippers, which caused him to contract Hepatitis C.
Id. at 4. Plaintiff alleges that he discovered he
had Hepatitis C on or about June 6, 2014. Doc.  at 1.
Plaintiff filed a grievance through the Administrative
Remedies Program, but he concedes that the ARP grievance was
rejected as untimely. Doc.  at 3. Defendant has provided a
copy of Plaintiff's ARP grievance showing that it was
filed on May 5, 2016. Doc. [17-1]. The ARP response and
accompanying affidavit indicate that the grievance was
rejected as untimely. Id. In a response in
opposition to the motion for summary judgment, Plaintiff
alleges that he filed two previous ARP grievances--on July 1,
2014 and August 29, 2014--that went unanswered. Doc.  at
2. Plaintiff did not attach copies of these alleged prior
grievances. Nor does he provide any documentary evidence
demonstrating that earlier grievances in fact were filed.
provides that "[t]he court shall grant summary judgment
if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law." Fed.R.Civ.P. 56(a); Sierra Club,
Inc. v. Sandy Creek Energy Assocs., L.P., 627 F.3d 134,
138 (5th Cir. 2010). Where the summary judgment evidence
establishes that one of the essential elements of the
plaintiff's cause of action does no exist as a matter of
law, . . . all other contested issues of fact are rendered
immaterial. See Celotex, 477 U.S. at 323, 106 S.Ct.
at 2552.” Topalin v. Ehrman, 954 F.2d 1125,
1138 (5th Cir. 1992). In making its determinations
of fact on a motion for summary judgment, the court must view
the evidence submitted by the parties in a light most
favorable to the non-moving party. McPherson v.
Rankin, 736 F.2d 175, 178 (5th Cir. 1984).
moving party has the duty to demonstrate the lack of a
genuine issue of a material fact and the appropriateness of
judgment as a matter of law to prevail on its motion.
Union Planters Nat'l Leasing v. Woods, 687 F.2d
117 (5th Cir. 1982). The movant accomplishes this
by informing the court of the basis of its motion, and by
identifying portions of the record which highlight the
absence of genuine factual issues. Topalian, 954
F.2d at 1131. “Rule 56 contemplates a shifting burden:
the nonmovant is under no obligation to respond unless the
movant discharges [its] initial burned of demonstrating
[entitlement to summary judgment].” John, 757
F.2d at 708. Once a properly supported motion for summary
judgment is presented, the nonmoving party must rebut with
“significant probative” evidence. Ferguson v.
Nat'l Broad. Co., Inc., 584 F.2d 111, 114
(5th Cir. 1978).
of administrative remedies through the prison grievance
system is a jurisdictional prerequisite for lawsuits filed
pursuant to 42 U.S.C. § 1983. Wright v.
Hollingsworth, 260 F.3d 357 (5th Cir. 2001).
No action shall be brought with respect to prison conditions
under section 1993 of this title, or any other Federal, by a
prisoner confined in any jail, prison, or other correctional
facility until such administrative remedies are exhausted.
42 U.S.C. § 1997e(a). The Fifth Circuit takes a
“strict approach” to the exhaustion requirement.
See Johnson v. Ford, 261 Fed.Appx. 752, 755 (5th
Cir. 2008). 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.” Alexander v.
Tippah County, Miss., 351 F.3d 626, 630 (5th Cir. 2003).
Dismissal is appropriate where an inmate has failed to
properly exhaust the administrative grievance procedure
before filing his complaint. Gonzalez v. Seal, 702
F.3d 785, 788 (5th Cir. 2012). A prisoner cannot satisfy the
exhaustion requirement “by filing an untimely or
otherwise procedurally defective administrative grievance or
appeal”. Woodford v. Ngo, 548 U.S. 81, 83-84
(2006). Merely initiating the grievance process or putting
prison officials on notice of a complaint is insufficient to
meet the exhaustion requirement. The grievance process must
be carried through to its conclusion before suit can be filed
under the Prison Litigation Reform Act. Wright, 260
F.3d at 358. “Since exhaustion is a threshold issue
that courts must address to determine whether litigation is
being conducted in the right forum at the right time, . . .
judges may resolve factual disputes concerning exhaustion
without the participation of a jury. Dillon v.
Rogers, 596 F.3d 260, 272 (5th Cir. 2010).
alleged date of the incident was May 2009, when Plaintiff
received a haircut with dirty clippers. Plaintiff did not
file a grievance at the time. However, Plaintiff alleges that
he did not discover the injury (Hepatitis C) until June 6,
2014. The ARP system is a two-step process. An inmate
initiates the process by submitting a grievance in writing to
the prison's legal claims adjudicator within 30 days of
the incident. Howard v. Epps, No. 5:12cv61 KS-MTP,
2013 WL 2367880, at *2 (S.D.Miss. May 29, 2013). The only
grievance for which there is documentation in the record is a
grievance filed on May 5, 2016, five years after Plaintiff
allegedly received a haircut with dirty clippers and almost
two years after he learned that he contracted Hepatitis C.
Using either date as the date of incident, Plaintiff's
grievance was untimely because it was not filed within 30
days of the incident. Plaintiff's grievance was
procedurally defective; therefore, he did not satisfy the
exhaustion requirement. See Woodford, 548 U.S. 81,
response, Plaintiff identifies two other ARP grievances that
he alleges were submitted on July 14, 2014, and August 29,
2014, with respect to his Hepatitis C. Plaintiff provides no
documentation or other proof to support the allegation that
he filed earlier ARP grievances. Assuming arguendo
that Plaintiff indeed filed first-step grievances on those
two dates, he nevertheless did not exhaust his remedies.
Merely initiating the grievance process is not sufficient.
See Wright, 260 F.3d at 358. Although Plaintiff
alleges that he did not receive a response to his earlier
grievances, the MDOC Inmate Handbook states that if an inmate
does not receive a first-step response within 30 days, he is
entitled to proceed to the next step. See McLemore v.
Fisher, No. 1:16cv20 LG-RHW, 2016 WL 4004669, at *3
(S.D.Miss. June 29, 2016). Instead of completing the
grievance process, Plaintiff simply abandoned his earlier
grievances and chose to file yet another grievance almost two
years later. Because Plaintiff did not complete the steps for
these alleged earlier grievances, the Court finds that
Plaintiff failed to exhaust his administrative remedies.
Accordingly, the Court finds that Plaintiff's complaint
should be dismissed for failure to exhaust and that the
dismissal should be with prejudice because Plaintiff's
failure cannot be cured. See Johnson v. La. ex rel. La.
Dep't of Public Safety & Corr., 468 F.3d 278,
280-81 (5th Cir. 2006); Trigg v. Wiginton, No.
3:10-CV-1962-B-BN, 2014 WL 696444, at *3 (N.D.Tex. Feb. 24,
THEREFORE ORDERED AND ADJUDGED that Defendant's 
Motion for Summary Judgment is GRANTED and that
Plaintiff's complaint is dismissed with prejudice ...