United States District Court, S.D. Mississippi, Northern Division
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
R. ANDERSON UNITED STATES MAGISTRATE JUDGE.
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
, 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.
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).
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.
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,
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
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).
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.,
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]
received his Second Step response on July 1');">12, 201');">16, from Dr.
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
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