United States District Court, S.D. Mississippi, Eastern Division
REPORT AND RECOMMENDATION
Michael T. Parker United States Magistrate Judge.
MATTER is before the Court on Plaintiff's Motion  to
Amend Complaint and Defendants' Motions  for
Summary Judgment filed by Daniel Lynch, Alex Hodge, Robert
Little, David Hare, Jackie Hayes, James Ingram, Jesse James,
and Carol Johnston. Having considered the motions, the
record, and the applicable law, the undersigned recommends
that Defendants' Motions  for Summary Judgment be
granted, that Plaintiff's Motion  to Amend Complaint
be denied, and this action be dismissed without prejudice for
failure to exhaust administrative remedies.
was incarcerated at the Jones County Adult Detention Center
(“JCADC”) as a pretrial detainee during the
events alleged in his complaint. He is currently incarcerated
as a post-conviction inmate at Central Mississippi
Correctional Facility in Pearl, Mississippi. Plaintiff,
proceeding pro se and in forma pauperis,
filed the instant civil rights action pursuant to 42 U.S.C.
§ 1983 on October 11, 2016. Plaintiff currently has four
suits before this Court arising out of his stay in Jones
County: Quick v. Hodge, 2:16cv166-KS-MTP
(“Hodge I”); Quick v. Hodge,
2:16cv167- KS-MTP (“Hodge II”); Quick v.
Hodge, 2:16cv177-KS-MTP (“Hodge III”); and
Quick v. Hodge, 2:16cv178-KS-MTP
filed Hodge I, 2:16cv166-KS-MTP on October 11, 2016,
alleging that while he was incarcerated in the Jones County
Detention Center from January 14, 2016, until August 8, 2016,
there was no fire extinguisher, officers served food without
gloves, someone had a tobacco spit cup, he was not allowed to
wear his orthopedic shoes, and that he was deprived of
certain property. Also on October 11, 2016, Plaintiff filed
Hodge II, 2:16-CV-00167-KS-MTP (this suit), alleging
that there were no “handicap” toilets, no assist
rail, no non-slip product on the shower floor and, no bars
for balance or wheelchair access. He also claims the county
would not provide a wheelchair and denied him hip surgery. He
states in his Complaint that this caused extra strain on his
hip, knee, and back.
on October 17, 2016, Plaintiff filed Hodge III,
2:16-CV-00177-KS-MTP, alleging that during his stay in this
facility the lights were not turned off. Additionally, on
October 17, 2016, Plaintiff filed Hodge IV,
2:16-CV-00178-KS-MTP, alleging that there was black mold in
the facility while he was incarcerated.
have moved for summary judgment in all four of
Plaintiff's cases seeking dismissal because he failed to
exhaust administrative remedies before filing
motion for summary judgment 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.
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
assert that this matter should be dismissed because Plaintiff
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.
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. Id., 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, the 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, Defendant bears the burden of demonstrating that
Plaintiff failed to exhaust available administrative
remedies. Dillon v. Rogers, 596 F.3d 260, 266 (5th
support of their motions for summary judgment, Defendants
submitted the affidavit of Pamela Graham, a copy of the
jail's grievance policy, and Plaintiff's grievances
he filed while incarcerated in Jones County. See
[72-1]. In her affidavit, Pamela Graham states that she is in
charge of the administrative remedies program at the jail.
According to Pamela Graham, all inmates, including Plaintiff
Quick, are made aware of the program and its procedures when
they are processed into the jail. The jail ...