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Ewing v. Sanford

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

June 20, 2017

RICKY RONNELL EWING PLAINTIFF
v.
KAITY SANFORD DEFENDANT

          ORDER OVERRULING PLAINTIFF'S OBJECTION [37], ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION [35], AND GRANTING DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS [28]

          HALIL SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Plaintiff Ricky Ronnell Ewing's Objection [37] to the Report and Recommendation [35] of United States Magistrate Judge John C. Gargiulo, entered in this case on April 7, 2017, regarding Defendant's Motion for Judgment on the Pleadings [28]. Based upon his review of Defendant's Motion [28], the related pleadings, and relevant legal authority, the Magistrate Judge determined that Plaintiff had not exhausted his available administrative remedies and recommended that Defendant's Motion [28] be granted under the Federal Rule of Civil Procedure 56 standard, and that this case be dismissed without prejudice. R. & R. [35] at 4-7.

         After thoroughly reviewing Plaintiff's Objection [37], the Magistrate Judge's Report and Recommendation [35], Defendant's Motion [28], the record, and relevant legal authority, the Court finds that Plaintiff's Objection [37] should be overruled, that the Magistrate Judge's Report and Recommendation [35] should be adopted as the finding of the Court, that Defendant's Motion for Judgment on the Pleadings [28] should be granted, and that this case should be dismissed without prejudice.[1]

         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 19, 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 Defendant Kaity Sanford. Id. Subsequently, a Waiver of Service of Summons [19] and an Answer [23] was filed by Defendant Kaity Sanford, which reflected that her correct name is Kathy Padgett-Sanford (“Defendant”). Ans. [23] at 1.

         Plaintiff alleges that on February 2, 2016, Defendant refused to give him an “alcohol pad” after having given a “white guy” two alcohol pads, and that her reason for refusing Plaintiff's request was because she was “races (sic).” Compl. [1] at 3-5; Obj. [37] at 4-5; Ex. [37-3] at 1. Plaintiff appears to assert claims for conspiracy, racial discrimination, and harassment. Compl. [1] at 3. 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 then admits that he “having (sic) heard anything yet” in response to the question seeking the results of the ARP procedure. Id.

         On January 24, 2017, Defendant filed a Motion for Judgment on the Pleadings [28] asserting 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”), therefore mandating dismissal of his claims. Mot. [28] at 1-2; Aff. Joseph Cooley [28-2] at 1; Mem. in Supp. [29] at 3-5. Defendant further argues that Plaintiff fails to assert a “viable claim of inadequate medical treatment” or to even “allege facts sufficient to support a plausible claim that Nurse Sanford acted with deliberate indifference to the treatment of his serious medical condition.” Mem. in Supp. [29] at 5-8. Defendant seeks the dismissal with prejudice of Plaintiff's frivolous claims, and asks that the dismissal be adjudged as a strike against Plaintiff under the PLRA. Mot. [28] at 2; Mem. in Supp. [29] at 8.

         Plaintiff's response in opposition, styled as an “Objection” [32], maintains that Plaintiff did file an ARP claim and refers to several alleged “Exhibits” although there are no exhibits attached to the responsive pleading.[2] Obj. [32] at 1-7. Plaintiff also appears to admit that he has not received a response to the alleged ARP claim. Id.

         On April 7, 2017, the Magistrate Judge entered a Report and Recommendation [35]. The Magistrate Judge determined that even if Plaintiff had filed an ARP claim concerning the February 2, 2016 incident, he failed to exhaust his available administrative remedies prior to filing the Complaint in this case on February 19, 2016. The Magistrate Judge recommended that, because Defendant filed an Affidavit in support of her Motion, the Defendant's Motion for Judgment on the Pleadings [28] be granted under the summary judgment standard of Federal Rule of Civil Procedure 56, and that Plaintiff's claims be dismissed without prejudice. R. & R. [35] at 1-7.

         Plaintiff filed an “Objection” [37] to the Report and Recommendation on April 24, 2017, maintaining that he exhausted the ARP process because he filed an ARP grievance although MDOC never processed it. Obj. [37] at 2.

         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, 711 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. ...


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