United States District Court, S.D. Mississippi, Western Division
REPORT AND RECOMMENDATION
J. WHITWORTH United States Magistrate Judge
MATTER is before the Court on the Defendants' Motion 
for Summary Judgment Based on Plaintiff's Failure to
Exhaust Administrative Remedies. Plaintiff has not responded
to the Motion and his time to do so has passed. See
Order . Having considered the motion, the record, and
applicable law, the undersigned recommends that the Motion
 be GRANTED and this matter be dismissed without
Michael Floyd Wilson, proceeding pro se and in
forma pauperis, is a post-conviction inmate in the
custody of the Mississippi Department of Corrections
(“MDOC”), and is currently housed at the
Wilkinson County Correctional Facility (“WCCF”)
in Woodville, Mississippi. Plaintiff filed the instant civil
rights action pursuant to 42 U.S.C. § 1983, on or about
July 17, 2017. According to Plaintiff, he was assaulted by
his cellmate shortly after arriving at WCCF in March, 2017.
See Complaint  at 4. He also complains that the
cell doors can only be accessed by a key, not electronically,
and that this creates a fire hazard. He also claims he was
assaulted by other inmates in a second incident occurring on
August 25, 2017. See Response  at 3. Plaintiff
generally claims he is in fear for his life due to these
incidents. Finally, Plaintiff claims he has not been provided
sufficient outdoor recreation at WCCF. Id. at 2.
relief, Plaintiff requests the Court enter an order requiring
that he be transferred to another facility. See
Complaint  at 4; Response  at 3.
filed their Motion  for Summary Judgment on January 30,
2018, asserting that this matter should be dismissed because
Plaintiff failed to exhaust his administrative remedies
before filing his claim. On February 1, 2018, the Court
directed Plaintiff to respond to the motion on or before
February 22, 2018. See Order . The deadline for
Plaintiff to respond has passed, and the motion is now ripe
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.P. 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. However, 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.
United States Court of Appeals for the Fifth Circuit has
upheld the grant of summary judgment where the evidence
revealed that an inmate has not followed prison guidelines
for filing grievances and thus had not exhausted his
administrative remedies. Stout v. North-Williams,
476 Fed. App'x 763, 765 (5th Cir. 2012). Furthermore,
courts 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. See, e.g.,
Woodford, 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). “It is irrelevant whether exhaustion is
achieved during the federal proceeding. 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, Defendants bear
the burden of demonstrating that Plaintiff failed to exhaust
available administrative remedies. Dillon v. Rogers,
596 F.3d 260, 266 (5th Cir. 2010).
Code Ann. § 47-5-801 grants the MDOC the authority to
adopt an administrative review procedure at each of its
correctional facilities. Pursuant to this statutory
authority, the MDOC has set up an Administrative Remedy
Program (“ARP”) through which an offender may
seek formal review of a complaint relating to any aspect of
their incarceration. The ARP is a two-step process. Inmates
are required to initially submit their grievances in writing
to the Legal Claims Adjudicator within thirty days of the
incident. If, after screening, a grievance is accepted into
the ARP, the request is forwarded to the appropriate
official, who will issue a First Step Response. If the inmate
is unsatisfied with this response, he may continue to the
Second Step by using ARP form ARP-2 and sending it to the
Legal Claims Adjudicator. A final decision will be made by
the Superintendent, Warden, or Community Corrections
Director. If the offender is not satisfied with the Second
Step Response, he may file suit in state or federal court.
See Kelly v. Mgmt. & Training Corp., 2017 WL
4284598, at *3 (S.D.Miss. Sept. 27, 2017).
support of their defense that Plaintiff failed to properly
exhaust his claims before filing suit in this court,
Defendants offer the sworn affidavit of Janice Williams, an
MDOC employee who works as the ARP Coordinator at WCCF.
See [24-1]. They also submit Plaintiff's
grievances he filed while at WCCF. Id. In her
affidavit, Williams states that Plaintiff filed an ARP
grievance on July 21, 2017, after he filed this lawsuit,
asserting that he had been assaulted numerous times while
housed at WCCF and that he needed to be transferred to
another facility. She states that Plaintiff eventually
exhausted the ARP process for this grievance when he received
a second step response from Warden Bradley on October 18,
2017. See [24-1] at 9.
to Williams, Plaintiff has not submitted any other
administrative grievances since he was transferred to WCCF.
As reflected by the documentation submitted by Defendants,
Plaintiff did not submit any administrative grievances
pertaining to his claim regarding electronic locking of cell
doors, nor has he submitted any administrative grievances
pertaining to outdoor recreation. According to
Plaintiff's ARP file, Plaintiff did not start the ARP
process regarding the assault claims or request a transfer
through the process until after he
filed the instant ...