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Holton v. Hogan

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

January 10, 2018




         This cause is before the Magistrate Judge for a report and recommendation on the Motion for Summary Judgment Based on Plaintiff's Failure to Exhaust Administrative Remedies [28], filed by Defendants Ollie Little and Centurion of Mississippi, LLC (“Centurion”). Defendants assert that the claims of Plaintiff Johnny Milton Holton should be dismissed due to his failure to exhaust his remedies that were available to him through the Administrative Remedy Program [ARP] implemented by the Mississippi Department of Corrections [MDOC]. A hearing was conducted on July 25, 201');">17, under the authority of Spears v. McCotter, 766 F.2d 1');">179 (5th Cir. 1');">1985), and its progeny, and Plaintiff provided testimony regarding his claims against these Defendants and others and his efforts to exhaust the claims. After a thorough review of the pleadings and exhibits, Holton's sworn testimony, and the applicable law, the Court finds that Defendants' motion should be granted based upon Holton's non-exhaustion.

         Failure to exhaust is an affirmative defense, so these Defendants have the burden of demonstrating that Holton failed to exhaust his administrative remedies. Jones v. Bock, 1');">199');">549 U.S. 1');">199, 21');">16 (2007). At the summary judgment stage, this means that Defendants “must establish beyond peradventure all of the essential elements of the defense of exhaustion to warrant summary judgment in their favor.” Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir. 201');">10). The court shall grant summary judgment “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). “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. Tex. St. Board of Dental Exam'rs, 204 F.3d 629, 633 (5th Cir. 2000) (citing Celotex Corp. v. Catrett, 477 U.S. 31');">17, 327 (1');">1986)). The burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. Allen v. Rapides Parish Sch. Bd., 204 F.3d 61');">19, 621');">1 (5th Cir. 2000).

         Holton was a convicted felon housed in the custody of the MDOC at the East Mississippi Correctional Facility [EMCF] at Meridian, Mississippi, on or about August 1');">12, 201');">16, when Plaintiff's health issues leading to this case occurred. Plaintiff had chest pains on January 23, 201');">16, and was taken to the medical department. Based upon his past health issues, and the symptoms he was experiencing, he told the nursing staff on duty (nurses Evans and Townsend) that he was having a heart attack. According to Plaintiff, the nurses told him he was having acid reflux and gave him Maalox and sent him back to his unit. He returned the next day and was treated with Maalox, a pain shot, and aspirin. The nurse practitioner prescribed an EKG and blood work, but the EKG machine was broken and no lab tech was there to draw blood. Plaintiff returned the next day and was seen by Dr. Abangan. Dr. Abangan had him transferred to a local hospital for the EKG and blood work. He required heart surgery (stents) on January 24, 201');">16, and spent several days in the ICU at that hospital. He was then transferred back to EMCF.

         Plaintiff contends that his medical treatment was constitutionally inadequate. He filed a grievance against “Nurse Evans” and “Nurse Townsend” and references the “nurse practitioner” who treated him. [28-1');">1, p. 1');">1.]

         As Defendants point out, the applicable section of the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1');">1997(e), provides that “[n]o action shall be brought with respect to prison conditions under section 1');">1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.”

         This statute clearly requires an inmate bringing a civil rights action in this Court to first exhaust his available administrative remedies. Booth v. Churner, 532 U.S. 731');">1, 739 (2001');">1). Exhaustion is no longer left to the discretion of the district court, but is mandatory. Porter v. Nussle, 1');">16');">534 U.S. 51');">16, 524 (2002). Exhaustion will not be excused when an inmate fails to timely exhaust his administrative remedies; the exhaustion requirement also means “proper exhaustion.” Woodford v. Ngo, 1');">1');">548 U.S. 81');">1, 83-84 (2006).

         In Jones v. Bock, 1');">199');">549 U.S. 1');">199, 21');">11');">1 (2007), the Supreme Court confirmed that exhaustion was mandatory under the PLRA and that “unexhausted claims cannot be brought in court.” Citing Jones, the Fifth Circuit restated that “the PLRA pre-filing exhaustion requirement is mandatory and non-discretionary, ” and that “district courts have no discretion to waive the PLRA's pre-filing exhaustion requirement.” Gonzalez v. Seal, 702 F.3d 785, 787-88 (5th Cir. 201');">12) (per curiam); Moussazadeh v. Texas Dept. of The United States Supreme Court reiterated in Ross v. Blake, 1');">136 S.Ct. 1');">1850');">1');">136 S.Ct. 1');">1850, 1');">1856-57 (201');">16), that exhaustion is mandatory and that a court may not excuse a failure to exhaust, “even to take ‘special circumstances' into account.” Judicial discretion is foreclosed. Id. “Time and again, this Court has rejected every attempt to deviate from the PLRA's textual mandate.” Id., citations omitted.

         In support of their motion, Defendants presented Plaintiff's ARP file [57-2] and the November 26, 201');">16, Affidavit of Mary Dempsey, Coordinator for the ARP at EMCF [28-1');">1, p. 1');">1]. According to Ms. Dempsey, Plaintiff filed a grievance on June 1');">12, 201');">16, complaining that Nurse Evans and Nurse Townsend provided him with inadequate medical care on January 24 & 25, 201');">16, in response to his complaints of chest pain. Plaintiff received his First Step Response on June 30, 201');">16, from Health Services Administrator Ollie Little, also a Defendant. Mr. Little's response was:

Nurse Townsend is the one that ensured you were seen by the nurse practitioner. At that time there was no order to send out. You were sent out once the order was given. I cannot provide monetary relief.

[28-1');">1, p. 9]

         He received his Second Step response on July 1');">12, 201');">16, from Dr. Abangan.

         In this case, Holton did not name either Ollie Little, the medical director, or them. The law requires that the prison officials be provided fair notice of a prisoner's specific complaints and with the “time and opportunity to address [the] complaints internally.” Johnson v. Johnson, 385 F.3d 503, 51');">16 (5th Cir. 2004). “Since prisoners are generally required to follow the procedures adopted by the state prison system, the specificity requirement should be interpreted in light of the grievance rules of the particular prison system ....” Id. at 51');">17. See also Sears v. Shaw, Civil Action No. 5:1');">14cv65-DCB-JCG, 201');">16 WL 1');">1068745 (S.D.Miss. Feb. 1');">1, 201');">16) (grievance did not provide notice of failure to protect claim); Hayes v. Dunn, Civil Action No. 3:1');">14cv468, 201');">16 WL 884654 (S.D.Miss. March 7, 201');">16) (grievance about prisoner's medical treatment for mental illness insufficient to exhaust specific claim that prisoner was given Haldol shots when he was allergic to Haldol); Marsalis v. Cain, Civil Action No. 1');">12-0799, 201');">14 WL 51');">121');">15 (M.D. La. Jan. 7, 201');">14) (claims not raised “and/or were only alluded to so minimally as to be insufficient to provide fair notice to prison officials of the plaintiff's specific complaints...” were unexhausted; no specific mention of defendant made in grievance).

         Even though Holton did complain about his medical care at the EMCF, his ARPs only relate to the alleged failure to treat him by the two nurses, Evans and Townsend, who initially treated him. They diagnosed him with acid reflux, even though he informed them of his past heart issues. When nurse Townsend tried to perform an EKG, the machine did not work. His testing was delayed for another day. Nowhere in Plaintiff's ARP does he mention Ollie Little or Centurion. ...

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