United States District Court, S.D. Mississippi, Southern Division
ORDER OVERRULING PLAINTIFF'S OBJECTION ,
ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
, AND GRANTING DEFENDANT'S MOTION FOR JUDGMENT ON THE
SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE
matter comes before the Court on Plaintiff Ricky Ronnell
Ewing's Objection  to the Report and Recommendation
 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 .
Based upon his review of Defendant's Motion , 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  be granted under the Federal Rule
of Civil Procedure 56 standard, and that this case be
dismissed without prejudice. R. & R.  at 4-7.
thoroughly reviewing Plaintiff's Objection , the
Magistrate Judge's Report and Recommendation ,
Defendant's Motion , the record, and relevant legal
authority, the Court finds that Plaintiff's Objection
 should be overruled, that the Magistrate Judge's
Report and Recommendation  should be adopted as the
finding of the Court, that Defendant's Motion for
Judgment on the Pleadings  should be granted, and that
this case should be dismissed without
Plaintiff Ricky Ronnell Ewing (“Plaintiff”),
proceeding in forma pauperis, filed a Complaint 
pursuant to 42 U.S.C. Â§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.  at 1. The Complaint 
named as Defendant Kaity Sanford. Id. Subsequently,
a Waiver of Service of Summons  and an Answer  was
filed by Defendant Kaity Sanford, which reflected that her
correct name is Kathy Padgett-Sanford
(“Defendant”). Ans.  at 1.
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.  at 3-5; Obj.  at
4-5; Ex. [37-3] at 1. Plaintiff appears to assert claims for
conspiracy, racial discrimination, and harassment. Compl. 
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.  at 3. Plaintiff then admits that
he “having (sic) heard anything yet” in response
to the question seeking the results of the ARP procedure.
January 24, 2017, Defendant filed a Motion for Judgment on
the Pleadings  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.  at 1-2; Aff. Joseph Cooley
[28-2] at 1; Mem. in Supp.  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.  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.  at 2; Mem. in Supp.  at 8.
response in opposition, styled as an “Objection”
, maintains that Plaintiff did file an ARP claim and
refers to several alleged “Exhibits” although
there are no exhibits attached to the responsive
pleading. Obj.  at 1-7. Plaintiff also appears
to admit that he has not received a response to the alleged
ARP claim. Id.
April 7, 2017, the Magistrate Judge entered a Report and
Recommendation . 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  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.  at 1-7.
filed an “Objection”  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.  at 2.
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, 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).
is not required, however, to make new findings of fact
independent of those made by a magistrate. Warren v.