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Cathey v. Natal

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

January 8, 2018

CARLOS LAJUAN CATHEY, #16609-075 PLAINTIFF
v.
NORMA NATAL, et al. DEFENDANTS

          ORDER ADOPTING MAGISTRATE JUDGE'S [55] REPORT AND RECOMMENDATION; GRANTING DEFENDANTS NORMA NATAL AND UNKNOWN PENNINGTON'S [42] MOTION FOR SUMMARY JUDGMENT; AND DISMISSING PLAINTIFF'S CLAIMS AGAINST ALL INDIVIDUAL DEFENDANTS FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES

          HALIL SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on the Report and Recommendation [55] of United States Magistrate Judge John C. Gargiulo, entered in this case on December 8, 2017, and the Motion for Summary Judgment [42] filed by Defendants Norma Natal and Unknown Pennington[1] on August 10, 2017. Based upon the Magistrate Judge's review of the pleadings and relevant legal authority, he recommended that the Motion for Summary Judgment [42] be granted and that Plaintiff's claims against all individual Defendants be dismissed without prejudice pursuant to 42 U.S.C. § 1997e(a) for failure to exhaust administrative remedies. R.& R. [55] at 10-11.

         For the reasons that follow, the Court finds that the Report and Recommendation [55] should adopted in its entirety as the finding of this Court, that the Motion for Summary Judgment [42] should be granted, and that Plaintiff's claims against all individual Defendants should be dismissed without prejudice for failure to exhaust administrative remedies. Plaintiff's claims against the United States of America under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346 and 2671, et seq., will proceed.

         I. BACKGROUND

         A. Factual Background

         Plaintiff Carlos Lajuan Cathey (“Plaintiff”) claims that in October 2014, while he was incarcerated at the Federal Correctional Institution in Yazoo City, Mississippi, he was struck with a lock while watching television in his unit. Am. Compl. [10] at 1-2. A month later, Plaintiff was released from the “SHU, ” but he maintains that he continued to complain to medical personnel about headaches and floaters and blurriness in his vision. Id. at 2. Plaintiff contends that medical staff did not send him to a specialist until March 2016, and at that time, the specialist informed Plaintiff that he had a tumor and blindness from a delay in treatment. Id. Plaintiff alleges that the medical staff was deliberately indifferent to his head injury and that this delay in treatment caused him permanent blindness. Id.

         In his Complaint, Plaintiff states that he had not completed the grievance procedure related to these claims. Compl. [1] at 2. Plaintiff maintains that “[t]he counselor failed to turn in my BP-8 to start the remedy process but it is pending.” Id. at 3.[2]

         B. Procedural History

         Plaintiff filed a pro se Complaint [1] pursuant to 42 U.S.C. § 1983 in this Court on October 31, 2016, seeking monetary damages from Defendants Norma Natal, Bureau of Prisons, the United States of America, Unknown Pendleton, Sharon Baymon, E. Burkhalter, and Retired Counselor B. Smith. Compl. [1] at 1-6. Plaintiff is proceeding in forma pauperis.

         On March 23, 2017, Plaintiff filed an Amended Complaint [10], naming as Defendants the United States of America, Norma Natal, Unknown Pennington, Unknown Fernanders, Sharon Baymon, E. Burkhalter, Counselor B. Smith, and the Bureau of Prisons (“BOP”). In addition to 42 U.S.C. § 1983 claims, the Amended Complaint [10] advances claims pursuant to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), and the FTCA. Am. Compl. [10] at 1-14.

         On May 4, 2017, the Court dismissed Defendant BOP and Plaintiff's claims under 42 U.S.C. § 1983. See Order [13] at 3. Plaintiff's Bivens claims against individual Defendants Norma Natal, Unknown Pennington, Sharon Baymon, E. Burkhalter, Counselor B. Smith, and FTCA claims against the United States of America remain.

         On August 10, 2017, Defendants Norma Natal and Unknown Pennington filed a Motion for Summary Judgment [55] based upon failure to exhaust administrative remedies. Defendants presented evidence that administrative remedies were available to Plaintiff, yet he failed to exhaust them prior to filing the present case. Plaintiff filed a Response [47] in opposition to the Motion, and Defendants filed a Rebuttal [49].

         On December 8, 2017, the Magistrate Judge entered his Report and Recommendation [55], recommending that Defendants' Motion for Summary Judgment [55] be granted and that Plaintiff's claims against all individual Defendants be dismissed without prejudice pursuant to 42 U.S.C. § 1997e(a) for failure to exhaust administrative remedies. R. & R. [55] at 10-11. The Report and Recommendation [55] was mailed to Plaintiff on December 8, 2017, via certified mail return receipt requested, and was received [56] on December 13, 2017.

         Any objection to the Magistrate Judge's Report and Recommendation [55] was due within fourteen (14) days of service. L.U. Civ. R. 72(a)(3). To date, Plaintiff has not filed any objection to the Magistrate Judge's ...


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