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Gilmore v. Leverette

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

June 21, 2017




         BEFORE THE COURT is the Complaint filed pursuant to 42 U.S.C. § 1983 by Plaintiff Jerry Lynn Gilmore, Jr., a postconviction inmate in the custody of the Mississippi Department of Corrections (MDOC), who is proceeding pro se and in forma pauperis. Plaintiff alleges excessive force and violation of due process against Defendants who are correctional officers at South Mississippi Correctional Institution (SMCI). He seeks the expungement of two rule violation reports (RVRs) from his prison record and the restoration of his custody level to medium. Defendants have filed a Motion for Summary Judgment (ECF No. 26), and the Motion has been fully briefed. An omnibus hearing, which also operated as a Spears hearing, [1] was held on May 26, 2016. Having reviewed the submissions of the parties, the record, and applicable law, the Court finds that Defendants' Motion for Summary Judgment should be granted. Plaintiff's claims must be dismissed because Plaintiff failed to exhaust available administrative remedies before filing suit. Also, Plaintiff has not stated a cognizable claim for violation of due process.


         In 2009, Plaintiff was convicted in the Circuit Court of Jones County, Mississippi, of selling cocaine. Gilmore v. Epps, No. 2:12cv44-KS-MTP, 2012 WL 3309000 at *1 (S.D.Miss. Aug. 13, 2012) (dismissing Plaintiff's 28 U.S.C. § 2254 petition for habeas corpus). As a result, Plaintiff was sentenced to serve 30 years in the custody of MDOC. This suit concerns alleged actions occurring at SMCI where Plaintiff was housed in January 2015. At the time, Defendant Jacqualine Leverette was a disciplinary hearing officer, Defendant Marshall Turner was a warden, and the remaining Defendants - Officers Bartee, Davis, Polk, and Blakely - were correctional officers.

         Plaintiff alleges that on January 10, 2015, he was wrongfully issued two RVRs. He received the first RVR for showering at 1 a.m. during a time when the showers were closed. (ECF No. 26-3, at 2). Plaintiff does not deny that he was in the shower at an unauthorized time but feels he was justified under the circumstances because he was preparing to go to work early in the morning as an orderly. Plaintiff lost one month of privileges as a result of being convicted on this RVR.

         Later on January 10, 2015, Plaintiff was issued a second RVR after an incident between him and a female kitchen worker. The worker was employed by a company providing food services to SMCI. Plaintiff was cleaning the kitchen bathroom when he says that he offered the worker money in exchange for sexual favors. According to Plaintiff, he “fraternized” with the worker, which he knew was against the rules, but did nothing more than touch her arm. According to the worker, Plaintiff attempted to throw her into the bathroom and rape her. The worker then allegedly overpowered Plaintiff and reported the incident.

         Officers Bartee, Davis, Polk, and Blakely responded, and according to Plaintiff, they escorted him to an area of the prison that was not in view of the security cameras and punched him until he was unconscious. Officer Bartee kicked Plaintiff between the legs. When Plaintiff awoke, he was handcuffed and lying on the floor in the infirmary. His head was swollen, and he believes he sustained a mild concussion.

         Plaintiff disputes the kitchen worker's account of what occurred but does not dispute that he touched her. Plaintiff was convicted of assault on the second RVR and punished with a loss of privileges, including losing trusty status, downgrade of his custody level to closed, and placement in administrative segregation. Plaintiff maintains that the punishment was excessive. He states that he was charged with causing bodily harm to the kitchen worker when he did not. He complains that the RVRs contained mistakes and administrative errors that make them invalid and in violation of due process.


         A. Summary Judgment Standard

         Summary Judgment is mandated against the party who fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party has the burden of proof at trial. Fed.R.Civ.P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A motion for summary judgment shall be granted “if the movant shows that there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In evaluating a motion for summary judgment, the Court must construe “all facts and inferences in the light most favorable to the non-moving party.” McFaul v. Valenzuela, 684 F.3d 564, 571 (5th Cir. 2012).

         B. Exhaustion of Available Administrative Remedies

         1. PLRA's exhaustion requirement

         Under the Prison Litigation Reform Act (PLRA), Pub. L. No. 104-134, 110 Stat. 1321, H.R. 3019 (codified as amended in scattered titles and sections of the U.S.C.), prisoners are required to exhaust available administrative ...

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