Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ewing v. Peabody

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

May 12, 2017

RICKY RONNELL EWING PLAINTIFF
v.
MIKEL PEABODY Corrections Officer at SMCI, et al. DEFENDANTS

         ORDER ADOPTING MAGISTRATE JUDGE'S [22] REPORT AND RECOMMENDATION; GRANTING DEFENDANTS' [16] MOTION FOR SUMMARY JUDGMENT FOR FAILURE TO EXHAUST AVAILABLE ADMINISTRATIVE REMEDIES; DENYING PLAINTIFF'S [20] “MOTION AND EXHIBITS AND OBJECTIONS”; AND DISMISSING PLAINTIFF'S CLAIMS WITHOUT PREJUDICE

          HALIL SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on the Report and Recommendation [22] of United States Magistrate Judge John C. Gargiulo, entered in this case on April 6, 2017, regarding Defendants' Motion [16] for Summary Judgment for Failure to Exhaust Available Administrative Remedies and Plaintiff's “Motion and Exhibits and Objections” [21]. Based upon his review of the record and relevant legal authority, the Magistrate Judge recommended that Defendants' Motion [16] for Summary Judgment be granted, that Plaintiff's “Motion and Exhibits and Objections” [21] be denied, and that Plaintiff's claims be dismissed without prejudice. R. & R. [22] at 8. Plaintiff has not filed any objection to the Report and Recommendation.

         For the reasons that follow, the Court finds that the Report and Recommendation [22] should be adopted in its entirety as the finding of this Court, that Defendants' Motion [16] for Summary Judgment should be granted, that Plaintiff's Motion [21] should be denied, and that Plaintiff's claims should be dismissed without prejudice.

         I. BACKGROUND

         Plaintiff Ricky Ronnell Ewing (“Plaintiff” or “Ewing”) filed a pro se Complaint [1] in this Court on February 16, 2016, and is proceeding in forma pauperis. The Complaint asserts claims pursuant to 42 U.S.C. § 1983 against Defendants Mikel Peabody, Corrections Officer at South Mississippi Correctional Institution (“SMCI”); Zenia Holicomb, Lieutenant at SMCI; and Shetica Lockhart, Lieutenant at SMCI. Compl. [1] at 1-2. On January 24, 2017, Defendants filed a Motion [16] for Summary Judgment for Failure to Exhaust Available Administrative Remedies. On February 13, 2017, Plaintiff filed an Objection [20] in opposition to Defendants' Motion [16], as well as a “Motion and Exhibits and Objections” [21], arguing that the MDOC never processed his ARP.

         On January 31, 2017, the Magistrate Judge conducted an omnibus hearing which functioned as a screening hearing pursuant to Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985). According to the Magistrate Judge, at this hearing “Plaintiff admitted facts confirming that he did not fully exhaust the Administrative Remedy Program (“ARP”) adopted by the [Mississippi Department of Correction (“MDOC”)] before filing this lawsuit.” R. & R. [22] at 1.

         On April 6, 2017, the Magistrate Judge entered his Report and Recommendation [22], recommending that Defendants' Motion [16] for Summary Judgment be granted, that Plaintiff's “Motion and Exhibits and Objections” [21] be denied, and that Plaintiff's claims be dismissed without prejudice. Id. at 8. The Report and Recommendation [22] was mailed to Plaintiff on April 6, 2017. Return [23] at 1. Any objection to the Magistrate Judge's Report and Recommendation [22] was due within fourteen (14) days of service. L.U. Civ. R. 72(a)(3). To date, Plaintiff has not filed any objection to the Magistrate Judge's Report and Recommendation [22], and the time for doing so has passed.

         II. DISCUSSION

         Where no party has objected to the Magistrate Judge's Report and Recommendation, the Court need not conduct a de novo review of it. 28 U.S.C. § 636(b)(1) (“a judge of the court shall make a de novo determination of those portions of the report or specified proposed findings and recommendations to which objection is made”). In such cases, the Court applies the “clearly erroneous, abuse of discretion and contrary to law” standard of review. United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989).

         Having conducted the required review, the Court concludes that the Magistrate Judge's findings are not clearly erroneous, nor are they an abuse of discretion or contrary to law. The Court will adopt the Magistrate Judge's Report and Recommendation [22] as the opinion of this Court, will grant Defendants' Motion [16] for Summary Judgment, and will deny Plaintiff's “Motion and Exhibits and Objections” [21]. This civil action will be dismissed without prejudice for Plaintiff's failure to exhaust available administrative remedies.

         IT IS, THEREFORE, ORDERED AND ADJUDGED that, the Report and Recommendation [22] of United States Magistrate Judge John C. Gargiulo, entered on April 6, 2017, is ADOPTED in its entirety as the finding of this Court.

         IT IS, FURTHER, ORDERED AND ADJUDGED that, Plaintiff Ricky Ronnell Ewing's pleading styled as a “Motion and Exhibits and Objections” [21] is DENIED.

         IT IS, FURTHER, ORDERED AND ADJUDGED that, Defendants' Motion [16] for Summary Judgment for Failure to Exhaust Available Administrative Remedies is GRANTED, and Plaintiff's claims are DISMISSED WITHOUT PREJUDICE for failure to exhaust available administrative remedies. A separate ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.