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.

Gilmore v. Unknown Evans

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

June 21, 2017

JERRY LYNN GILMORE, JR. PLAINTIFF
v.
UNKNOWN EVANS DEFENDANTS

          MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

          JOHN C. GARGIULO UNITED STATES MAGISTRATE JUDGE

         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 the South Mississippi Correctional Institution (SMCI). Defendants have filed a Motion for Summary Judgment (ECF No. 25), 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 are barred because he failed to exhaust available administrative remedies before filing suit. Plaintiff furthermore states no claim for violation of due process.

         BACKGROUND

         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 events at SMCI where Plaintiff was housed in May 2015.

         On May 24, 2015, Plaintiff received a rule violation report (RVR) for inappropriate sexual behavior and indecent exposure. When correctional officers responded to a fire started in an adjoining cell, Plaintiff was standing in his cell with his hand in his pants, allegedly masturbating. Officer Jones approached, opened Plaintiff's cell door, sprayed Plaintiff in the face with chemical agent, and then closed the cell door. Plaintiff was taken to the infirmary approximately forty minutes later.

         According to Plaintiff, Captain Evans, and Officers Jones, Davis, and Lockhart took a detour to the receiving room as they escorted Plaintiff to the infirmary. In the receiving room, Officer Jones hit Plaintiff from behind with a radio. Captain Evans slapped Plaintiff across the head and threatened him with a prison shank. Officers Jones and Lockhart also hit Plaintiff.

         Plaintiff received a second RVR on May 24, 2015, for allegedly grabbing Officer Jones' arm as she approached his cell. Plaintiff was convicted of both RVRs but argues that his due process rights were violated during the disciplinary process because the RVRs were not delivered and stamped properly, and because he was not allowed to call witnesses at the disciplinary hearing.

         DISCUSSION

         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. Plaintiff did not exhaust available administrative remedies prior to filing suit

         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 remedies prior to filing an action with respect to prison conditions:

No action shall be brought with respect to prison conditions under [42 U.S.C. ยง 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such ...

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.