United States District Court, S.D. Mississippi, Western Division
ORDER ADOPTING REPORT AND RECOMMENDATION
BRAMLETTE UNITED STATES DISTRICT JUDGE.
cause is before the Court on the defendants Management and
Training Corporation, Raven Davis, and Ora Porter's
Motion for Summary Judgment (docket entry
26) based on the plaintiff Ike Kelly's failure
to exhaust administrative remedies. Also before the Court are
a Report and Recommendation (“R&R”) of
Magistrate Judge Michael T. Parker (docket entry
35); objections to the R&R by the plaintiff
(docket entry 36); a response to the objections by defendants
Management and Training Corporation, Raven Davis and Ora
Porter (docket entry 37); and the plaintiff's first reply
(docket entry 38), second reply (docket entry 39), and third
reply (docket entry 40) to the defendants' response. The
Court has carefully considered the defendants' motion for
summary judgment and the Magistrate Judge's R&R, as
well as the parties' objections and responses, and finds
plaintiff, Ike Kelly (“Kelly”), proceeding
pro se and in forma pauperis, is a
post-conviction inmate in the custody of the Mississippi
Department of Corrections (“MDOC”), and is
currently housed at the South Mississippi Correctional
Institution. Kelly filed the instant civil rights action
pursuant to 42 U.S.C. § 1983 on or about November 1,
2016. Initially, he asserted claims against MDOC, the MDOC
Commissioner, Management and Training Corporation, the State
of Mississippi, and Wilkinson County Correctional Facility
(“WCCF”) alleging violations of his
constitutional rights during his incarceration at WCCF.
alleges that his cellmate assaulted him on September 10,
2016. He further claims that the security cells at WCCF are
not equipped with intercom speaker systems or
electronically-controlled cell doors. He was granted leave to
amend his complaint on March 15, 2017, to add claims against
officers Davis and Porter based on the allegation that they
were aware, prior to the assault, that his cellmate posed a
threat to other inmates.
claims that while he struggled with his cellmate for twenty
to thirty minutes, inmates in other cells were beating on
their cell doors to get the attention of the officers on
duty. He also claims that officers were located in a tower in
the unit's hallway. The plaintiff claims that he
sustained eight stab wounds during the alleged assault and
that he required treatment for two days at the Pike County
plaintiff sent a request to MDOC Commissioner Marshall Fisher
on October 12, 2016, to proceed with a “sensitive
issue” request through the Administrative Remedy
Program (“ARP”) regarding the alleged assault on
September 10, 2016. MDOC's ARP director, Richard
Pennington, responded to the plaintiff's request on
October 24, 2016, and notified Kelly that his complaint did
not meet the criteria for sensitive treatment. Pennington
also notified the plaintiff that he had five days from the
receipt of Pennington's response to submit his request
through the regular ARP process as a non-sensitive request.
The plaintiff signed an acknowledgment of his receipt of the
five-day extension to re-file his ARP request through the
regular channels. Thereafter, Kelly never submitted a
grievance regarding the assault through the regular ARP
channels at WCCF.
defendants filed their Motion for Summary Judgment on March
30, 2017, asserting that this matter should be dismissed
because Kelly failed to exhaust his administrative remedies
before filing his claim. The plaintiff responded to the
motion on May 15, 2017. The defendants replied to Kelly's
response on May 16, 2017. On June 6, 2017, Magistrate Judge
Parker issued his R&R.
motion for summary judgement will be granted when “the
record indicates that there is ‘no genuine issue as to
any material fact and that the moving party is entitled to
judgment as a matter of law.'” Causey v. Sewell
Cadillac-Chevrolet, Inc., 394 F.3d 285, 288
(5th Cir. 2004)(citing Fed. R. Civ. 56(c);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
“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). The court must view “the evidence in the light
most favorable to the nonmoving party.” Id.
However, the nonmoving party “cannot defeat summary
judgment with conclusory allegations, unsubstantiated
assertions, or ‘only a scintilla of
evidence.'” Turner v. Baylor Richardson Medical
Center, 476 F.3d 337, 343 (5th Cir. 2007)
(quoting Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir. 1994)). 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 (emphasis omitted). The
nonmovant cannot survive a proper motion for summary judgment
by resting on the allegations in his pleadings. Isquith
v. Middle South Utilities, Inc., 847 F.2d 186, 199
(5th Cir. 1988); see also Celotex, 477
U.S. at 325-26. Instead, the nonmovant must present evidence
sufficient to support a resolution of the factual issues in
his favor. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986).
defendants assert that this matter should be dismissed
because Kelly failed to exhaust his administrative remedies.
The 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. 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). “Indeed ... a
prisoner must now exhaust administrative remedies even where
the relief sought - monetary damages - cannot be granted by
the administrative process.” Id. at 85.
United States Court of Appeals for the Fifth Circuit has
upheld the grant of summary judgment where the evidence
revealed that an inmate had not followed prison guidelines
for filing grievances and thus had not exhausted his
administrative remedies. Stout v. North-Williams,
476 Fed.App'x 763, 765 (5th Cir. 2012).
Furthermore, courts have been clear that a prisoner cannot
fulfill the exhaustion requirement through general
allegations that he notified prison officials of a violation;
rather, he must follow the process set forth by the prison.
See, e.g., Woodford, 548 U.S. at
83-84; Johnson v. Ford, 261 Fed.App'x 752, 755
(5th Cir. 2008) (stating that the Fifth Circuit
takes a “strict approach” to the PLRA's
exhaustion requirement); Lane v. Harris Cnty. Medical
Dep't, No. 06-20935, 2008 WL 116333, at *1
(5th Cir. Jan. 11, 2008) (stating that under the
PLRA, a prisoner must comply with all administrative
procedural rules). “Pre-filing exhaustion is mandatory,
and the case must be dismissed if available administrative
remedies were not exhausted.” Gonzalez v.
Seal, 702 F.3d 785, 788 (5th Cir. 2012).
Because exhaustion is an affirmative defense, the defendant
bears the burden of demonstrating that the plaintiff failed
to exhaust available administrative remedies. Dillon v.
Rogers, 596 F.3d 260, 266 (5th Cir. 2010).
Code Ann. § 47-5-801 grants the MDOC the authority to
adopt an administrative review procedure at each of its
correctional facilities. Pursuant to this statutory
authority, the MDOC has set up an Administrative Remedy
Program (“ARP”) through which an offender may
seek formal review of a complaint relating to any aspect of
his incarceration. The ARP is a two-step process. Inmates are
required to initially submit their grievances within thirty
days of the incident. If, after screening, a grievance is
accepted into the ARP, the request is forwarded to the
appropriate official, who will issue a First Step Response.
If the inmate is unsatisfied with this response, he may
continue to the Second Step by using ARP form ARP-2 and
sending it to the Legal Claims Adjudicator. A final decision
will then be made by the Superintendent, Warden, or Community
Corrections Director. If the offender is not satisfied with
the Second Step Response, he may file suit in state or
federal court. See Mississippi Department of
Corrections Handbook, at Ch. VIII; see also Seales v.
Shaw, 2016 WL 616749, at *2 (S.D.Miss. Jan. 26, 2016),
report and recommendation adopted sub nom. Seales v.
Wilkinson Cty. Corr. Facility, 2016 WL 616385 (S.D.Miss.
Feb. 16, 2016).
program also contains a provision for sensitive issues.
See [26-2] at 2. If an inmate believes that he would
be adversely affected if his ARP complaint became known at
his facility, he may file a complaint directly to the ARP
Director as a sensitive issue request. Id. The
inmate must explain the reason for not filing his complaint
at his facility in his request. Id. If his request
is denied by the ARP Director, an inmate has five days from
the date he receives the rejection memo to submit his request
through the regular ARP channels, beginning with the first
defendants in this case argue that the plaintiff failed to
properly exhaust his claims before filing suit in this Court.
In support, the defendants offer the plaintiff's ARP
record regarding the claims currently before this Court.
Janice Fountain, an MDOC employee who works as the ARP
Coordinator at WCCF, has submitted an Affidavit outlining the
plaintiff's administrative grievance efforts.
See [26-1] at 1. On or about October 12, 2016, the
plaintiff sent correspondence to MDOC Commissioner Marshal
Fisher requesting permission to proceed with a
“sensitive issue” request regarding the alleged
assault through the ARP process. See [26-1] at 5. On October
24, 2016, MDOC's ARP Director, Richard Pennington,
responded to the plaintiff's request, notifying him that
this matter did not meet the criteria for sensitive
treatment. See [26-1] at 4. Mr. Pennington's
letter notified the plaintiff that his request was being
returned to him so that he could submit it through the
regular ARP process as a non-sensitive request. Id.
The letter also notified Kelly that he had five days from the
receipt of Mr. Pennington's response to submit his
potential grievance through the regular ARP channels.
Id. On October 25, 2016, the plaintiff signed an
acknowledgment of his receipt of the five-day extension to
re-file his ARP request. See [26-1] at 3. Kelly
never re-submitted a grievance regarding the alleged
September 10, 2016, incident through the ARP process, and he
does not contest this in his response.
the principal purposes of the administrative exhaustion
requirement is to provide fair notice to prison officials of
an inmate's specific complaints so as to provide
“time and opportunity to address complaints
internally.” Johnson v. Johnson, 385 F.3d 503,
517 (5th Cir. 2004). Based on the record before
the Court, Magistrate Judge Parker finds ...