United States District Court, S.D. Mississippi, Northern Division
MEMORANDUM OPINION AND ORDER
KEITH BALL, UNITED STATES MAGISTRATE JUDGE
matter is before the Court on the Motion for Summary Judgment
 filed by Defendant Richard Pennington, in this action
brought pursuant to 42 U.S.C. § 1983. Plaintiff, James
Richards, has not responded to the motion. The Court has held
an Omnibus Hearing in this matter, at which time the parties
consented to proceed before the undersigned United States
Magistrate Judge, and the District Judge subsequently entered
an Order of Reference. 28 U.S.C. § 636(c); Fed.R.Civ.P.
73. Richards is proceeding in this matter in forma
pauperis and pro se.
alleges that the defendants violated his constitutional
rights during his confinement at East Mississippi
Correctional Facility (“EMCF”). In his Complaint
, Richards alleges a myriad of claims regarding the
conditions of confinement at EMCF against a number of
Defendants. According to the Complaint, Defendant Pennington
is the Director of the Administrative Remedy Program
(“ARP”) and Rules Violation Reports
(“RVR”) appeals at EMCF, id. at 4, and
is employed by the State of Mississippi. See Answer
. Richards has sued Pennington in his individual and
official capacities, but has not specifically alleged claims
against Pennington related to his conditions of confinement.
Instead, Richards's claims against Pennington relate
solely to the ARP and RVR appeals process. In his Complaint,
Richards asserts that Pennington wrongly rejected his appeal
of an RVR as untimely, that Pennington and other Defendants
conducted unfair disciplinary procedures, and that Pennington
participated in a conspiracy with other Defendants to write
false RVRs. Id. at 11, 14. Plaintiff's claims
against other Defendants will be addressed by separate order.
Pennington asserts that he is entitled to dismissal on two
bases. First, Pennington argues that Richards has failed to
exhaust his administrative remedies regarding his claims
against him prior to filing this action. Second, Pennington
argues that Richards has failed to state any actionable claim
against him. Pennington has supported these arguments with a
sworn affidavit, which recounts that two of Richards's
grievances, EMCF-15-2245 and EMCF-15-2246, were rejected as
untimely, and that his office has no record of an ARP
grievance against Pennington regarding his rejection of
Richards's ARPs. [28-1].
has failed to file a written response to this Motion, but the
Court heard his testimony regarding the Motion during the
omnibus hearing. At the hearing, Plaintiff testified that he
had sued Pennington because he had rejected Richards's
RVRs. Additionally, Richards acknowledged that Pennington was
not personally involved in the alleged constitutional
violations related to his conditions of confinement claims.
and case law require a prisoner to exhaust administrative
remedies, regardless of the relief sought, before bringing a
§ 1983 action in federal court. The relevant portion of
42 U.S.C. § 1997e, as amended by the Prison Litigation
Reform Act of 1995 (PLRA), states the following:
No 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.
42 U.S.C. § 1997e(a)(Supp. 2000). In Booth v.
Churner, 121 S.Ct. 1819 (2001), the Supreme Court held
that 42 U.S.C. § 1997e, revised as a part of the PLRA,
requires an inmate to exhaust administrative remedies before
bringing an action with respect to prison conditions,
regardless of the relief offered through administrative
procedures. Booth, 121 S.Ct. at 1825. The United
States Supreme Court further explained that the PLRA's
exhaustion requirement is mandatory and applies to all inmate
suits about prison life, whether they involve general
circumstances or particular episodes, and whether they allege
excessive force or some other wrong. See Porter v.
Nussle, 122 S.Ct. 983 (2002); see also Jones v.
Bock, 127 S.Ct. 910 (2007)(reaffirming that exhaustion
is mandatory; stating that it is an affirmative defense).
United States Court of Appeals for the Fifth Circuit has
reiterated the principles found in these cases. In
Gonzales v. Seal, 702 F.3d 785 (5th Cir. 2012), the
Fifth Circuit recognized that exhaustion of administrative
remedies prior to suit is mandatory, and that district courts
have no discretion to stay ' 1983 prisoner cases when
they are filed before prisoners have exhausted administrative
remedies. The Fifth Circuit concluded, as follows:
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
Id. at 788. Moreover, “[i]t 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.” Walker
v. East Miss. Corr. Facility, 2013 WL 4833901 (S.D.Miss.
Sept. 11, 2013)(citing Wright v. Hollingsworth, 260
F.3d 357, 358 (5th Cir. 2001)(finding that filing an initial
grievance, without more, did not equate to exhaustion));
see also Tompkins v. Holman, 2013 WL 1305580
(S.D.Miss. Mar. 26, 2013)(dismissing ' 1983 complaint for
failure to exhaust administrative remedies when prisoner
filed a grievance, but did not complete the ARP before filing
case, Richards does not allege that he suffered from any
ailment which prohibited him from pursuing administrative
remedies. See Ferrington v. Louisiana Dep=t of
Corr., 315 F.3d 529 (5th Cir.
2002)(Plaintiff-inmate's blindness did not excuse him
from exhausting administrative remedies.); see also Days
v. Johnson, 322 F.3d 863 (5th Cir. 2003)(excusing
non-exhaustion of administrative remedies because of physical
injury and subsequent rejection of grievance due to
untimeliness). Exhaustion is mandatory, “irrespective
of the forms of relief sought and offered through
administrative avenues.” Booth v. Churner, 532
U.S. 731, 739 (2001). Put another way, “[t]he
requirement of exhaustion applies regardless of
Plaintiff's opinion on the ...