United States District Court, S.D. Mississippi, Northern Division
REPORT AND RECOMMENDATION
C. GARGIULO UNITED STATES MAGISTRATE JUDGE
THE COURT is the Motion for Summary Judgment (ECF No. 42)
filed by Defendants Norma Natal and Unknown Pennington. The
motion is fully briefed. Plaintiff filed a Response in
Opposition (ECF No. 47), and Defendants filed a Reply (ECF
No. 49). Having considered the submissions of the parties,
the record as a whole, and relevant law, the undersigned
recommends that Defendants' Motion for Summary Judgment
(ECF No. 42) be GRANTED. The undersigned further recommends
that Plaintiff's claims against unserved Defendants
Sharon Bayman, E. Burkhalter, Retired Counselor B. Smith, and
Unknown Fernanders be dismissed without prejudice for failure
to exhaust available administrative remedies before filing
Carlos Lajuan Cathey is a prisoner in the custody of the
Federal Bureau of Prisons (“BOP” or
“Bureau”) housed at the Federal Correctional
Complex in Yazoo City, Mississippi (“FCC Yazoo”).
He filed his initial Complaint on October 31, 2016.
Proceeding pro se and in forma pauperis, he
seeks monetary damages for the alleged violation of his
constitutional rights pursuant to 42 U.S.C. § 1983.
Complaint (ECF No. 1); Memorandum in Support (ECF No. 3). He
filed an Amended Complaint (ECF No. 10) on March 23, 2017,
which added causes of action pursuant to Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403
U.S. 388 (1971) and the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. §§ 1346, 2401,
2671-80. He has been granted leave to supplement his Amended
Complaint through various additional filings. See
Order (ECF No. 14); Order (ECF No. 51), Order (ECF No. 54).
Subsequent to District Judge Ozerden's dismissal of
Plaintiff's claims against the Federal Bureau of Prisons
and his claims pursuant to 42 U.S.C. § 1983,
see Order (ECF No. 13), Plaintiff's claims
pursuant to Bivens and the FTCA persist against
Defendants Normal Natal, Sharon Bayman, E. Burkhalter,
Retired Counselor B. Smith, Unknown Pennington, Unknown
Fernanders, and the United States of America.
claims that another inmate hit him in the head with a lock in
October of 2014 while Plaintiff was watching television in
his unit at FCC Yazoo. (ECF No. 10, at 1-2). He says that he
spent a month in “SHU” and, when released,
“complained to medical about floaters in [his] eye and
blurriness in [his] vision.” Id. at 2. He
states that Defendants Natal, Bayman, Burkhalter, Pennington,
and Fernanders provided constitutionally deficient medical
care related to his “head injury[, ] and the delay
caused permanent blindness.” Id. at 3. He says
the delay in care allowed for a pituitary tumor in his head
to continue increase in size and cause his blindness.
Id. He also alleges that Defendant Smith violated
his constitutional rights by “failing to allow
Plaintiff to process [his grievance] through the
Administrative remedy process.” Id. at 11.
August 10, 2017, Defendants Natal and Pennington filed the
instant Motion for Summary Judgment (ECF No. 42), which
argues that Plaintiff's Bivens claims should be
dismissed because Plaintiff failed to exhaust administrative
remedies before he filed suit. Defendants Bayman, Burkhalter,
Smith, and Fernanders have not entered appearances because
they have yet to be properly served with process. Plaintiff
failed to timely provide the Court with addresses at which
these Defendants could be served, even after an extension of
time to do so. See Order (ECF No. 51), Text Order
Aug. 9, 2017.
Summary Judgment Standard
Rule of Civil Procedure 56(a) provides that summary judgment
is appropriate “if the movant shows 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). “When the moving party has carried its burden
under Rule 56(c), its opponent must do more than simply show
that there is some metaphysical doubt as to the material
facts.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). “[T]he nonmovant
must go beyond the pleadings and designate specific facts
showing that there is a genuine issue for trial.”
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994) (en banc).
genuine dispute of material fact means that ‘evidence
is such that a reasonable jury could return a verdict for the
nonmoving party.'” Royal v. CCC & R Tres
Arboles, L.L.C., 736 F.3d 396, 400 (5th Cir. 2013)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986)). If the evidence presented by the nonmovant
“‘is merely colorable, or is not significantly
probative, ' summary judgment is appropriate.”
Cutting Underwater Techs. USA, Inc. v. ENI U.S. Operating
Co., 671 F.3d 512, 516 (5th Cir. 2012) (quoting
Anderson, 477 U.S. at 249). In deciding whether
summary judgment is appropriate, the Court views the evidence
and inferences in the light most favorable to the nonmoving
party. RSR Corp. v. Int'l Ins. Co., 612 F.3d
851, 857 (5th Cir. 2010).
The Prison Litigation Reform Act
Plaintiff is a prisoner pursuing a civil action seeking
redress from government employees, 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.), applies and requires that
this case be screened.
PLRA provides that “the Court shall dismiss the case at
any time if the court determines that . . . the action . . .
(i) is frivolous or malicious; (ii) fails to state a claim on
which relief may be granted; or (iii) seeks monetary relief
against a defendant who is immune from such relief.” 28
U.S.C. § 1915A(b); see 28 U.S.C. §
1915(e)(2)(B). Thus, the statute “accords judges not
only the authority to dismiss a claim based on an
indisputably meritless legal theory, but also the unusual
power to pierce the veil of the ...