United States District Court, S.D. Mississippi, Southern Division
ORDER OVERRULING PLAINTIFF'S  OBJECTIONS,
ADOPTING MAGISTRATE JUDGE'S  REPORT AND
RECOMMENDATION, AND GRANTING DEFENDANTS'  MOTION FOR
SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Plaintiff Ricky Ronnell
Ewing's Objections  to the Report and Recommendation
 of United States Magistrate Judge John C. Gargiulo,
entered in this case on November 17, 2016, regarding
Defendants' Motion for Summary Judgment . Based upon
his review of Defendants' Motion , the related
pleadings, and relevant legal authority, the Magistrate Judge
determined that Plaintiff had not exhausted his available
administrative remedies and recommended that Defendants'
Motion for Summary Judgment  be granted and that this
case be dismissed without prejudice. R. & R.  at 7.
thoroughly reviewing Plaintiff's Objections , the
Magistrate Judge's Report and Recommendation ,
Defendants' Motion for Summary Judgment , the record,
and relevant legal authority, the Court finds that
Plaintiff's Objections  should be overruled and that
the Magistrate Judge's Report and Recommendation 
should be adopted as the finding of the Court.
Defendants' Motion for Summary Judgment  should be
granted, and this case dismissed without prejudice.
Ricky Ronnell Ewing (“Plaintiff” or
“Ewing”) filed a Complaint  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.  at 1. The Complaint 
named as Defendant Mrs. Taylor, Case Manager. Id.
After Plaintiff responded to the Court's Order 
requiring additional information, the Court directed the
Clerk to amend the docket to reflect that the named
Defendants were Druetta Taylor, Case Manager; Officer Miller;
and Officer Walker. Order  at 1.
alleges that on December 30, 2015, Taylor placed her hands on
him, pushed him away, threatened him, and verbally assaulted
him because he was informing Miller than he needed to
“go to medical.” Compl.  at 4; Resp.  at
1-2; Aff. [1-2] at 1. Miller allegedly refused to allow
Plaintiff to obtain treatment, even though he was in pain.
Compl.  at 4; Resp.  at 2; Aff. [1-2] at 1. Plaintiff
alleges that on February 9, 2016, Taylor again threatened him
and called him offensive names. Aff. [1-2] at 5. Plaintiff
asserts that he requested a mat from Walker, but that Walker
did not provide him one. Id.
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.  at
3. Plaintiff stated 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.
September 12, 2016, Defendants filed a Motion  for
Summary Judgment for Failure to Exhaust available
Administrative Remedies. Defendants argued 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.
Defs.' Mem.  at 5-6. Defendants have presented
evidence that Plaintiff's grievance is in backlog because
there are previous grievances which will be processed before
this one. Aff. of Joseph Cooley [21-1] at 1. Plaintiff did
not respond to Defendants' Motion .
November 17, 2016, the Magistrate Judge entered a Report and
Recommendation . The Magistrate Judge determined that
Plaintiff had failed to exhaust his available administrative
remedies and recommended that Defendants' Motion  for
Summary Judgment be granted and that Plaintiff's claims
be dismissed without prejudice. R. & R.  at 6-7.
submitted Objections  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.  at 2; ARP [25-1]
at 1. Plaintiff argues that his ARP has not been processed
and maintains that he should be permitted to proceed to trial
on his claims. Objs.  at 3.
Standard of review
Plaintiff has filed written Objections  to the Magistrate
Judge's Report and Recommendation, 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).
Plaintiff was required to exhaust his available