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Shariff v. Evans

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

September 12, 2017

ABDUL AL-MUMIT ASAD SHARIFF PLAINTIFF
v.
RODERICK EVANS, et al. DEFENDANTS

          ORDER ADOPTING MAGISTRATE JUDGE'S [57] REPORT AND RECOMMENDATION; GRANTING DEFENDANTS' [45], [51] MOTIONS FOR SUMMARY JUDGMENT; AND DISMISSING PLAINTIFF'S CLAIMS WITHOUT PREJUDICE FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES

          HALIL SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on the Report and Recommendation [57] of United States Magistrate Judge John C. Gargiulo, entered in this case on August 9, 2017; the Motion for Summary Judgment for Failure to Exhaust Administrative Remedies [45] filed by Defendants Roderick Evans, Latrina Gamble, and Jaclynn Johnson (the “MDOC Defendants”) on May 8, 2017; and the Motion for Summary Judgment Based on Plaintiff's Failure to Exhaust Administrative Remedies [51] filed by Defendant Nurse Dawn M. Brown (“Nurse Brown”) on June 2, 2017. Based upon his review of the pleadings on file and relevant legal authority, the Magistrate Judge recommended that Defendants' Motions for Summary Judgment [45], [51] be granted and that this case be dismissed without prejudice for Plaintiff's failure to exhaust administrative remedies.

         For the reasons that follow, the Court finds that the Report and Recommendation [57] should adopted in its entirety as the finding of this Court, that Defendants' Motions for Summary Judgment [45], [51] should be granted, and that this case should be dismissed without prejudice.

         I. BACKGROUND

         Plaintiff Abdul Al-Mumit Asad Shariff (“Plaintiff”)[1] filed a pro se Complaint [1] in this Court on April 20, 2016, asserting claims pursuant to 42 U.S.C. § 1983. Compl. [1] at 1, 4-6.[2] Plaintiff alleged that he sent the Commissioner of the Mississippi Department of Corrections a “sensitive issue” Administrative Remedy Program (“ARP”) complaint regarding the claims presented in his Complaint, which he maintains “is an alternative to the ARP process when dealing with matters of this nature, where the complaintant [sic] could get hurt.” Id. at 3.

         On January 5, 2017, the Magistrate Judge entered an Order to Show Cause [31] why this case should not be dismissed for failure to exhaust administrative remedies as required by 42 U.S.C. § 1997e(a). Order [31] at 3. Plaintiff has filed numerous pleadings since that time, but has not addressed the exhaustion issue. On May 4, 2017, the Court entered an Order [42] setting a deadline of June 2, 2017, for Defendants to file motions based upon failure to exhaust administrative remedies.

         On May 8, 2017, the MDOC Defendants filed their Motion for Summary Judgment for Failure to Exhaust Administrative Remedies [45]. On May 12, 2017, the Court entered an Order [50] requiring Plaintiff to respond to this Motion [45] by June 9, 2017. Order [50] at 2. On June 2, 2017, Nurse Brown filed her Motion for Summary Judgment Based on Plaintiff's Failure to Exhaust Administrative Remedies [51]. Plaintiff did not respond to either Motion [45], [51]. On June 22, 2017, the Magistrate Judge entered an Order [53] requiring Plaintiff to file a response to the Motions [45], [51] by July 13, 2017. Order [53] at 2. Plaintiff did not do so.

         On August 9, 2017, the Magistrate Judge entered his Report and Recommendation [57], that Defendants' Motions for Summary Judgment [45], [51] be granted and that this case be dismissed without prejudice for Plaintiff's failure to exhaust his available administrative remedies. R. & R. [57] at 2, 9. The Report and Recommendation [57] was mailed to Plaintiff's address of record via certified mail, return receipt requested, on August 9, 2017, and the Acknowledgment of Receipt [58] indicates that Plaintiff signed for the envelope containing the Report and Recommendation [57] on August 14, 2017. Any objection to the Magistrate Judge's Report and Recommendation [57] was due within fourteen (14) days of service. See L.U. Civ. R. 72(a)(3). To date, Plaintiff has not filed any objection to the Magistrate Judge's Report and Recommendation [57], and the time for doing so has passed.

         II. DISCUSSION

         Where no party has objected to a magistrate judge's report and recommendation, the Court need not conduct a de novo review of it. 28 U.S.C. § 636(b)(1) (“a judge of the court shall make a de novo determination of those portions of the report or specified proposed findings and recommendations to which objection is made”). In such cases, the Court applies the “clearly erroneous, abuse of discretion and contrary to law” standard of review. United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989).

         Having conducted the required review, the Court concludes that the Magistrate Judge's findings are not clearly erroneous, nor are they an abuse of discretion or contrary to law. The Court will adopt the Magistrate Judge's Report and Recommendation [57] as the opinion of this Court and will grant Defendants' Motions for Summary Judgment [45], [51]. Plaintiff's claims against all Defendants will be dismissed without prejudice for Plaintiff's failure to exhaust available administrative remedies.[3]

         III. CONCLUSION

         IT IS, THEREFORE, ORDERED AND ADJUDGED that, the Report and Recommendation [57] of United States Magistrate Judge John C. Gargiulo, entered on August 9, 2017, is ADOPTED in its entirety as the finding of this Court.

         IT IS, FURTHER, ORDERED AND ADJUDGED that, the Motion for Summary Judgment for Failure to Exhaust Administrative Remedies [45] filed by Defendants Roderick Evans, Latrina Gamble, and Jaclynn Johnson on May 8, 2017, and the Motion for Summary Judgment Based on Plaintiff's Failure to Exhaust Administrative Remedies [51] filed by Defendant Nurse Dawn M. Brown on June 2, 2017, are GRANTED, and Plaintiff's claims are DISMISSED WITHOUT PREJUDICE for his failure to ...


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