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

June 5, 2017

RICKY RONNELL EWING PLAINTIFF
v.
MIKEL PEABODY and MITCHEAL TAYLOR DEFENDANTS

          ORDER OVERRULING PLAINTIFFS OBJECTION [281, ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION [261, GRANTING DEFENDANTS' AMENDED MOTION FOR SUMMARY JUDGMENT [221, AND DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [171 AS MOOT

          HALIL SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Plaintiff Ricky Ronnell E wing's Objection [28] to the Report and Recommendation [26] of United States Magistrate Judge John C. Gargiulo, entered in this case on April 6, 2017, regarding Defendants' Amended Motion for Summary Judgment [22]. Based upon his review of Defendants' Amended Motion [22], the related pleadings, and relevant legal authority, the Magistrate Judge determined that Plaintiff had not exhausted his available administrative remedies and recommended that Defendants' Amended Motion for Summary Judgment [22] be granted, that Defendants' Motion for Summary Judgment [17] be found moot, and that this case be dismissed without prejudice. R. & R. [26] at 7.

         After thoroughly reviewing Plaintiffs Objection [28], the Magistrate Judge's Report and Recommendation [26], Defendants' Amended Motion for Summary Judgment [22], Defendants' Motion for Summary Judgment [17], the record, and relevant legal authority, the Court finds that Plaintiffs Objection [28] should be overruled, that the Magistrate Judge's Report and Recommendation [26] should be adopted as the finding of the Court, that Defendants' Amended Motion for Summary Judgment [22] should be granted, that Defendants' Motion for Summary Judgment [17] should be denied as moot, and that this case should be dismissed without prejudice.

         I. BACKGROUND

         Pro se Plaintiff Ricky Ronnell Ewing ("Plaintiff), proceeding in forma pauperis, filed a Complaint [1] pursuant to 42 U.S.C. §1983 in this Court on February 16, 2016. At that time, Plaintiff was incarcerated at the South Mississippi Correctional Institution ("SMCI") in Leakesville, Mississippi. Compl. [1] at 1. The Complaint [1] named as Defendants Mikel Peabody and Lt. Mitcheal Taylor ("Defendants"). Id. Subsequently, Defendants filed a Waiver of Service of Summons [11] and an Answer [12].[1]

         Plaintiff alleges that on January 26, 2017, he was strip searched by Defendants in the presence of a female officer and that some of his legal papers were damaged. Compl. [1] at 4; Resp. [7] at 1; Obj. [21] at 4-5. 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.

         On January 24, 2017, Defendants filed a Motion for Summary Judgment [17] for Failure to Exhaust Available Administrative Remedies, and on February 17, 2017, they filed an Amended Motion [22]. Defendants argue that Plaintiff failed to file an ARP grievance let alone exhaust his available administrative remedies under the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a) (the "PLRA"), mandating dismissal of his claims. Am. Mot. [22] at 1-2; Mem. in Supp. [23] at 3-7. Even if Plaintiff did file an ARP as he asserts in his responses to Defendants' Motion and Amended Motion, he apparently admitted at the Omnibus hearing that he had filed the present Complaint before receiving a first-step response to his ARP. R&R [26] at 3.

         On April 6, 2017, the Magistrate Judge entered a Report and Recommendation [26]. The Magistrate Judge determined that Plaintiff failed to exhaust his available administrative remedies and recommended that Defendants' Amended Motion for Summary Judgment [22] be granted, that Defendants' Motion for Summary Judgment [17] be denied as moot, and that Plaintiffs claims be dismissed without prejudice. R. & R. [26] at 6-7.

         Plaintiff submitted an Objection [28] to the Report and Recommendation, again claiming that he did in fact file an ARP but that it is backlogged, such that he should be allowed to proceed to a jury trial. Obj. [28] at 2-4; ARP [28-1] at 1.

         II. DISCUSSION

         A. Standard of review

         Because Plaintiff has objected to the Magistrate Judge's Report and Recommendation, this Court is required to make a de novo determination of "'those portions of the [magistrate's] report or specified proposed findings or recommendations to which objection is made.'" Funeral Consumers All. Inc. v. Serv. Corp Int'l, 695 F.3d 330, 347 (5th Cir. 2012) (quoting Hernandez v. Estelle, 111 F.2d 619, 620 (5th Cir. 1983) (quoting 28 U.S.C. § 636(b)(1)); see also Longmire v. Guste, 921 F.2d 620, 623 (5th Cir. 1991) (noting parties are entitled to a de novo review by an Article III Judge as to those issues to which an objection is made).

         A court is not required, however, to make new findings of fact independent of those made by a magistrate. Warren v. Miles, 230 F.3d 688, 694-95 (5th Cir. 2000). Nor is a court required to reiterate the findings and conclusions of a magistrate judge. Koetting v. Thompson, 995 F.2d 37, 40 (5th Cir. 1993). Also, a court need not consider objections which are frivolous, conclusive, or general in nature. Battle v. United States Parole Commission, 834 F.2d 419, 421 (5th Cir. 1987); see also Nettles v. Wainwright, 677 F.2d 404, 410 n. 8 (5th Cir. 1982) ("Parties filing objections must specifically identify those findings objected to. Frivolous, conclusive or general objections need not be considered by the district court.").

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


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.