United States District Court, N.D. Mississippi, Greeville Division
MICHAEL D. CARROLL PLAINTIFF
SUPERINTENDENT EARNEST LEE, DEFENDANTS
MICHAEL P. MILLS, UNITED STATES DISTRICT JUDGE
matter comes before the court on the pro se prisoner
complaint of Michael D. Carroll, who challenges the
conditions of his confinement under 42 U.S.C. § 1983.
For the purposes of the Prison Litigation Reform Act, the
court notes that the plaintiff was incarcerated when he filed
this suit. The plaintiff has brought the instant case under
42 U.S.C. § 1983, which provides a federal cause of
action against “[e]very person” who under color
of state authority causes the “deprivation of any
rights, privileges, or immunities secured by the Constitution
and laws.” 42 U.S.C. § 1983. The plaintiff alleges
that the defendants have failed to protect him from attack by
other inmates, then retaliated against him for seeking relief
through the Administrative Remedy Program and other channels.
The defendants have moved  for summary judgment, arguing
that the plaintiff did not exhaust the grievance process
before filing suit. The plaintiff has not responded to the
motion, and the deadline to do so has expired. For the
reasons set forth below, the motion by the defendants for
summary judgment will be granted and the case dismissed for
failure to exhaust administrative remedies.
judgment is appropriate if the “materials in the
record, including depositions, documents, electronically
stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials”
show that “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a) and (c)(1).
“The moving party must show that if the evidentiary
material of record were reduced to admissible evidence in
court, it would be insufficient to permit the nonmoving party
to carry its burden.” Beck v. Texas State Bd. of
Dental Examiners, 204 F.3d 629, 633 (5th Cir.
2000) (citing Celotex Corp. v. Catrett, 477 U.S. 317
(1986), cert. denied, 484 U.S. 1066 (1988)). After a
proper motion for summary judgment is made, the burden shifts
to the non-movant to set forth specific facts showing that
there is a genuine issue for trial. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91
L.Ed.2d 202 (1986); Beck, 204 F.3d at 633; Allen
v. Rapides Parish School Bd., 204 F.3d 619, 621
(5th Cir. 2000); Ragas v. Tennessee Gas
Pipeline Company, 136 F.3d 455, 458 (5th Cir.
1998). Substantive law determines what is material.
Anderson, 477 U.S. at 249. “Only disputes over
facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary
judgment. Factual disputes that are irrelevant or unnecessary
will not be counted.” Id., at 248. If the
non-movant sets forth specific facts in support of
allegations essential to his claim, a genuine issue is
presented. Celotex, 477 U.S. at 327. “Where
the record, taken as a whole, could not lead a rational trier
of fact to find for the non-moving party, there is no genuine
issue for trial.” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587, 89 L.Ed.2d 538
(1986); Federal Savings and Loan, Inc. v. Krajl, 968
F.2d 500, 503 (5thCir. 1992). The facts are
reviewed drawing all reasonable inferences in favor of the
non-moving party. Allen, 204 F.3d at 621; PYCA
Industries, Inc. v. Harrison County Waste Water Management
Dist., 177 F.3d 351, 161 (5th Cir. 1999);
Banc One Capital Partners Corp. v. Kneipper, 67 F.3d
1187, 1198 (5th Cir. 1995). However, this is so
only when there is “an actual controversy, that is,
when both parties have submitted evidence of contradictory
facts.” Little v. Liquid Air Corp., 37 F.3d
1069, 1075 (5th Cir. 1994); see Edwards v.
Your Credit, Inc., 148 F.3d 427, 432 (5th
Cir. 1998). In the absence of proof, the court does not
“assume that the nonmoving party could or would prove
the necessary facts.” Little, 37 F.3d at 1075
alleges that he was attacked in the prison kitchen on April
15, 2016. He submitted a handwritten grievance on April 18,
2016, regarding the assault to the Administrative Remedy
Program (ARP). See Ex. A at “Carroll 3.”
However, under ARP procedures, Carroll's grievance
regarding the assault could not be processed because Carroll
had a backlog of previously filed grievances. See Ex. A
at “Carroll 5.” Carroll was told on April
26, 2016, that if he wished to immediately pursue his latest
grievance, then he must first withdraw, in writing, all
pending grievances. Id. Carroll did so and received
his first step response to the assault grievance denying his
request on June 13, 2016 See Ex. A at “Carroll
7.” He appealed this denial to the second step on
July 3, 2016. Id. Carroll then filed the instant
suit on July 5, 2016. Doc. 1. Superintendent Lee then denied
relief on the second and final step of the grievance process
on August 22, 2016, and Carroll signed for receipt of the
Second Step Response Form on August 26, 2016. See Ex. A
at “Carroll 10.”
of Administrative Remedies
forth below, the instant case must be dismissed because Mr.
Carroll did not exhaust his administrative remedies prior to
filing suit in federal court. Although exhaustion of
administrative remedies is an affirmative defense, normally
to be pled by a defendant, the court may dismiss a pro
se prisoner case if failure to exhaust is apparent on
the face of the complaint. Carbe v. Lappin, 492 F.3d
325 (5th Cir. 2007). Congress enacted the Prison
Litigation Reform Act (“PLRA”), 42 U.S.C.
§1997e et seq. - including its requirement that
inmates exhaust their administrative remedies prior to filing
suit - in an effort to address the large number of prisoner
complaints filed in federal courts. See Jones v.
Bock, 549 U.S. 199, 202 (2007). Congress meant for the
exhaustion requirement to be an effective tool to help weed
out the frivolous claims from the colorable ones:
Prisoner litigation continues to ‘account for an
outsized share of filings' in federal district courts.
Woodford v. Ngo, 548 U.S. 81, 94, n. 4, 126 S.Ct.
2378 (2006) (slip op., at 12, n.4). In 2005, nearly 10
percent of all civil cases filed in federal courts nationwide
were prisoner complaints challenging prison conditions or
claiming civil rights violations. Most of these cases have no
merit; many are frivolous. Our legal system, however, remains
committed to guaranteeing that prisoner claims of illegal
conduct by their custodians are fairly handled according to
law. The challenge lies in ensuring that the flood of
non-meritorious claims does not submerge and effectively
preclude consideration of the allegations with merit. See
Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827,
104 L.Ed.2d 338 (1989).
Congress addressed that challenge in the PLRA. What this
country needs, Congress decided, is fewer and better prisoner
suits. See Porter v. Nussle, 534 U.S. 516, 524, 122
S.Ct. 983, 152 L.Ed.2d 12 (2002) (PLRA intended to
“reduce the quantity and improve the quality of
prisoner suits”). To that end, Congress enacted a
variety of reforms designed to filter out the bad claims and
facilitate consideration of the good. Key among these was the
requirement that inmates complaining about prison conditions
exhaust prison grievance remedies before initiating a
Jones v. Bock, 549 U.S. 199, 203 (2007).
Prison Litigation Reform Act (“PLRA”), 42 U.S.C.
§1997e(a), requires prisoners to exhaust any available
administrative remedies prior to filing suit under 42 U.S.C.
§1983. The exhaustion requirement protects
administrative agency authority, promotes efficiency, and
produces “a useful record for subsequent judicial
consideration.” Woodford v. Ngo, 548 U.S.81,
89 (2006). A prisoner cannot satisfy the exhaustion
requirement “by filing an untimely or otherwise
procedurally defective administrative grievance or
appeal” because “proper exhaustion of
administrative remedies is necessary.” Woodford v.
Ngo, 548 U.S. 81, 83-84 (2006); see also Johnson v.
Ford, 261 F. App'x 752, 755 (5th Cir.
2008)(the Fifth Circuit takes “a strict approach”
to the PLRA's exhaustion requirement)(citing Days v.
Johnson, 322 F.3d 863, 866 (5th Cir. 2003));
Lane v. Harris Cty. Med. Dep't, No. 06-20935,
2008 WL 116333, at *1 (5th Cir. Jan.11,
2008)(under the PLRA, “the prisoner must not only
pursue all available avenues of relief; he must also comply
with all administrative deadlines and procedural
rules”). Indeed, “a prisoner must now exhaust
administrative remedies even where the relief sought -
monetary damages - cannot be granted by the administrative
process.” Booth v. Churner, 532 U.S. 731, 739
requirement that claims be exhausted prior to the filing of a
lawsuit is mandatory and non-discretionary. Gonzalez v.
Seal, 702 F.3d 785 (5th Cir.2012).
“Whether a prisoner has exhausted administrative
remedies is a mixed question of law and fact.”
Dillon v. Rogers, 596 F.3d 260, 266 (5th
Cir. 2010). As “exhaustion is a threshold issue that
courts must address to determine whether litigation is being
conducted in the right forum at the right time, . . . judges
may resolve factual disputes concerning exhaustion without
the participation of a jury.” Id. at 272. The
Supreme Court has also recognized the need for a prisoner to
face a significant consequence for deviating from the prison
grievance procedural rules:
The benefits of exhaustion can be realized only if the prison
grievance system is given a fair opportunity to consider the
grievance. The prison grievance system will not have such an
opportunity unless the grievance complies with the
system's critical procedural rules. A prisoner who does
not want to participate in the prison grievance system will
have little incentive to ...