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White v. Banks

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

September 6, 2017

TOMMY DEMINTO WHITE, #84837 PLAINTIFF
v.
JAQUELINE BANKS, MARSHALL TURNER, HUBERT DAVIS, TIMOTHY BARNES, KENNETH POWELL, ADRIAN KEYS, CHRISTOPHER WOOLMAN, THOMAS BYRD, REGINA REED, and ANTHONY BEASLEY 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 Tommy Deminto White, a postconviction inmate in the custody of the Mississippi Department of Corrections (MDOC) who is proceeding pro se and in forma pauperis. Defendants are law enforcement officers working at the South Mississippi Correctional Institute (SMCI) in Leakesville, Mississippi. An omnibus hearing, which also operated as a Spears hearing, was held on December 5, 2016. (ECF No. 29).[1] Defendants have filed a Motion for Summary Judgment (ECF No. 38) and Memorandum in Support (ECF No. 39), alleging that Plaintiff failed to exhaust available administrative remedies with respect to some of his claims. Regarding Plaintiff's remaining claims, Defendants assert that Plaintiff has failed to enunciate a constitutional violation. Plaintiff has responded to the Motion for Summary Judgment (ECF Nos. 40, 41, 42). Having reviewed the submissions of the parties, the record, and applicable law, the Court finds that Defendants' Motion for Summary Judgment should be GRANTED for the reasons submitted by Defendants.

         BACKGROUND

         In 2009, Plaintiff was convicted of possession of a firearm by a convicted felon. He was sentenced to ten years in the custody of MDOC as a habitual offender. Plaintiff has served eight years of his sentence. This litigation concerns the conditions of Plaintiff's confinement at SMCI where he has been housed for at least three years.

         Plaintiff professes the Rastafari religion. He objects to MDOC requiring him to cut his hair. MDOC grooming regulations prohibit long hair and beards. While at SMCI, Plaintiff has been held down in a chair to have his hair cut on at least two occasions. Plaintiff claims that the grooming policy violates his First Amendment right to freely exercise his religion.

         As part of his religion, Plaintiff has taken a vow to refrain from eating meat. He wants to be provided a vegetarian diet food tray. Plaintiff asserts that he has spoken with a chaplain on several occasions regarding receiving a vegetarian diet tray, yet Plaintiff continues to be served meals with meat.

         Plaintiff was issued eight RVRs by Correctional Officer Linda Smith. Officer Smith found Plaintiff showering before the showers opened at 6:00 a.m. on multiple occasions. Plaintiff's explanation was that he had to be at work early and needed to shower beforehand. Plaintiff was found guilty of four of the RVRs, not guilty of three RVRs, and one RVR was dismissed. The punishment received for each of the four RVRs was 30-days without privileges. All four RVRs were affirmed on appeal. Plaintiff asks the Court to expunge the RVRs from his MDOC record.

         Plaintiff was housed in an area of SMCI where he was able to work making garments and taking night classes. Plaintiff alleges that he was transferred to a more dangerous area of the prison in retaliation for making complaints about Officer Smith. Plaintiff submits that he is not gang affiliated but has been moved to a dangerous area where he is housed with gang members. Plaintiff also believes that personal items were stolen from him by two officers in retaliation for him complaining about Officer Smith.

         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 failed to exhaust administrative remedies with respect to two of his five claims

         1. The 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 before filing a conditions-of-confinement lawsuit:

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 ...

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