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Ewing v. Taylor

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

May 17, 2017

RICKY RONNELL EWING PLAINTIFF
v.
DRUETTA TAYLOR, Manager, DEFENDANTS

          ORDER OVERRULING PLAINTIFF'S [25] OBJECTIONS, ADOPTING MAGISTRATE JUDGE'S [23] REPORT AND RECOMMENDATION, AND GRANTING DEFENDANTS' [21] MOTION FOR SUMMARY JUDGMENT

          HALIL SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on Plaintiff Ricky Ronnell Ewing's Objections [25] to the Report and Recommendation [23] of United States Magistrate Judge John C. Gargiulo, entered in this case on November 17, 2016, regarding Defendants' Motion for Summary Judgment [21]. Based upon his review of Defendants' Motion [21], 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 [21] be granted and that this case be dismissed without prejudice. R. & R. [23] at 7.

         After thoroughly reviewing Plaintiff's Objections [25], the Magistrate Judge's Report and Recommendation [23], Defendants' Motion for Summary Judgment [21], the record, and relevant legal authority, the Court finds that Plaintiff's Objections [25] should be overruled and that the Magistrate Judge's Report and Recommendation [23] should be adopted as the finding of the Court. Defendants' Motion for Summary Judgment [21] should be granted, and this case dismissed without prejudice.

         I. BACKGROUND

         Plaintiff Ricky Ronnell Ewing (“Plaintiff” or “Ewing”) filed a 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 Defendant Mrs. Taylor, Case Manager. Id. After Plaintiff responded to the Court's Order [6] 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 [8] at 1.

         Plaintiff 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. [1] at 4; Resp. [7] at 1-2; Aff. [1-2] at 1. Miller allegedly refused to allow Plaintiff to obtain treatment, even though he was in pain. Compl. [1] at 4; Resp. [7] 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.

         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 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.

         On September 12, 2016, Defendants filed a Motion [21] 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. [22] 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 [21].

         On November 17, 2016, the Magistrate Judge entered a Report and Recommendation [23]. The Magistrate Judge determined that Plaintiff had failed to exhaust his available administrative remedies and recommended that Defendants' Motion [21] for Summary Judgment be granted and that Plaintiff's claims be dismissed without prejudice. R. & R. [19] at 6-7.

         Plaintiff submitted Objections [25] 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 [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. [25] at 3.

         II. DISCUSSION

         A. Standard of review

         Because Plaintiff has filed written Objections [25] 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).

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


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