United States District Court, S.D. Mississippi, Northern Division
OPINION AND ORDER
LINDA
R. ANDERSON UNITED STATES MAGISTRATE JUDGE
Defendants
James Hollins and Warden Brian Ladner filed a Motion for
Summary Judgment for Failure to Exhaust Available
Administrative Remedies [ARP] [37], contending that Plaintiff
Otis Cortez Taylor never filed an ARP regarding his alleged
attack by other inmates. They request that his Complaint be
dismissed in this case due to his failure to exhaust the ARP.
They attach an Affidavit by Le Tresia Stewart, Investigator
II for the ARP at Central Mississippi Correctional Facility
[CMCF], stating that Taylor has not filed a grievance with
the ARP which alleged that he was physically assaulted by
three inmates while housed at the[37-1');">1');">1');">1]. Taylor filed a
response [40] and attached an Inmate Request Form dated June
5, 201');">1');">1');">16, labeled “Exhibit A” [42-1');">1');">1');">1].
A
hearing was conducted on July 25, 201');">1');">1');">17, under the authority
of Spears v. McCotter, 1');">1');">1');">179');">766 F.2d 1');">1');">1');">179 (5th
Cir. 1');">1');">1');">1985), and Plaintiff submitted his Witness List and
Exhibit List [51');">1');">1');">1 &. 52], along with what he labeled
Exhibits A, B (2 pages), C, and E regarding his ARP [53, 54,
55, &. 56]. These Exhibits were submitted at the hearing
but were inadvertently not filed as exhibits at that time.
At the
Court’s direction, Defendants filed a Reply or Rebuttal
Memorandum in support of its motion [57] and included an
additional Affidavit by Le Tresia Stewart, dated February 22,
201');">1');">1');">18 [57-1');">1');">1');">1, pp. 1');">1');">1');">1-3] and additional ARP records concerning
Taylor [57-1');">1');">1');">1, pp. 4-23].
After a
thorough review of the pleadings and exhibits, Taylor’s
sworn testimony, and the applicable law, the undersigned
recommends that Defendants’ motion be granted in part
based upon Taylor’s non-exhaustion.
Failure
to exhaust is an affirmative defense, so these Defendants
have the burden of demonstrating that Taylor failed to
exhaust his administrative remedies. Jones v. Bock,
1');">1');">1');">199');">549 U.S. 1');">1');">1');">199, 21');">1');">1');">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');">1');">1');">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');">1');">1');">17, 327 (1');">1');">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');">1');">1');">19, 621');">1');">1');">1 (5th Cir. 2000).
Taylor
was a convicted felon housed in the custody of the MDOC at
the Central Mississippi Correctional Facility [CMCF] in
Pearl, Mississippi, on or about December 9, 201');">1');">1');">15. On that
date, Taylor contends that he was assaulted by other inmates,
and the responding officer did not help him. He was
eventually charged with assault on his assailants and
convicted of this RVR and punished. His Complaint is quoted
verbatim as follows:
STATEMENT OF CLAIM
On December 9, 201');">1');">1');">15 I was assaulted by 3 inmates at CMCF
720-A-2 C-Zone. Officer Hollins was the first responder on
the scene and witnessed me protecting myself with my back to
the front door. Seeing Officer Hollins, my assailants back
away from me and the door. Officer Hollins did not say
anything or did he try to pull me off of the zone. Officer
Hollins distracted me thinking he was another attacker
causing me to take my eyes off my assailants. One assailant
hit me with a mop stick, splitting my head to the skull.
RELIEF
The relief I seek is to rectify the wrongdoings of the
officer forging my name on a rule violation report of me
being charged with assault as well as Warden Latner being
held accountable for allowing those falsified documents hold
merit. The assault stricken from file, compensation for pain
and suffering.
Complaint [1');">1');">1');">1], p. 4.
By
Order [8] filed December 1');">1');">1');">15, 201');">1');">1');">16, Plaintiff was directed by
the Court to more fully explain his claims. He did so in his
response [9] filed on December 30, 201');">1');">1');">16. In his response, he
contends that Officer Hollins failed to protect him;
falsified information of a RVR charging him with assault on
his three assailants; forged his name on the RVR and gave him
no chance to call witnesses; caused him mental, emotional,
and physical discomfort as a “result of deliberate
indifference.” [9, p. 1');">1');">1');">1]. As to Warden Ladner,
Plaintiff charged him with use of his authority to obstruct
and influence appeal and remedy process; failure to correct
falsified documents due to administrative errors on RVR;
obstruction of second step of the prison’s remedy
program; and, authorizing movement to EMCF as punishment for
seeking relief from the Courts. [9, pp. 1');">1');">1');">1-2]. He also
contended that his punishment from the RVR was 30 days
without visitation, commissary and telephone privileges;
custody changed from medium to close custody; and, assault
charge remains on his institutional file for ten years. He
charges that his appeal was denied through the ARP by Warden
Ladner, and the second step was filed in March 201');">1');">1');">16 and never
put in his file. Id. He contends that Officer
Hollins could have prevented the assault by pulling him from
the zone. Hollins failed to protect Taylor from harm as a
result of his malicious indifference. Id.
Taylor
was allowed to file his Amended Complaint [23-1');">1');">1');">1] by Order
entered April 3, 201');">1');">1');">17 [32]. In this amended complaint, Taylor
charges that the tower officer, Officer Burkes, opened the
door so he could be pulled to safety. Taylor further
augmented his claims at the Spears hearing. He
testified the second officer on the scene, Officer Tucker,
opened the door and grabbed Plaintiff out and got him medical
...