United States District Court, S.D. Mississippi, Southern Division
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
SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE
matter comes before the Court on Plaintiff Ricky Ronnell E
wing's Objection  to the Report and Recommendation
 of United States Magistrate Judge John C. Gargiulo,
entered in this case on April 6, 2017, regarding
Defendants' Amended Motion for Summary Judgment .
Based upon his review of Defendants' Amended 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' Amended Motion for Summary Judgment  be
granted, that Defendants' Motion for Summary Judgment
 be found moot, and that this case be dismissed without
prejudice. R. & R.  at 7.
thoroughly reviewing Plaintiffs Objection , the
Magistrate Judge's Report and Recommendation ,
Defendants' Amended Motion for Summary Judgment ,
Defendants' Motion for Summary Judgment , the record,
and relevant legal authority, the Court finds that Plaintiffs
Objection  should be overruled, that the Magistrate
Judge's Report and Recommendation  should be adopted
as the finding of the Court, that Defendants' Amended
Motion for Summary Judgment  should be granted, that
Defendants' Motion for Summary Judgment  should be
denied as moot, and that this case should be dismissed
Plaintiff Ricky Ronnell Ewing ("Plaintiff), proceeding
in forma pauperis, filed a Complaint  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.  at 1. The Complaint 
named as Defendants Mikel Peabody and Lt. Mitcheal Taylor
("Defendants"). Id. Subsequently,
Defendants filed a Waiver of Service of Summons  and an
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.  at 4; Resp. 
at 1; Obj.  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.  at 3.
January 24, 2017, Defendants filed a Motion for Summary
Judgment  for Failure to Exhaust Available Administrative
Remedies, and on February 17, 2017, they filed an Amended
Motion . 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.  at 1-2; Mem.
in Supp.  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  at 3.
April 6, 2017, the Magistrate Judge entered a Report and
Recommendation . The Magistrate Judge determined that
Plaintiff failed to exhaust his available administrative
remedies and recommended that Defendants' Amended Motion
for Summary Judgment  be granted, that Defendants'
Motion for Summary Judgment  be denied as moot, and that
Plaintiffs claims be dismissed without prejudice. R. & R.
 at 6-7.
submitted an Objection  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.  at 2-4; ARP [28-1] at 1.
Standard of review
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).
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
Plaintiff was required to exhaust his available