Taylor v. Hollins

          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 (5^th Cir. 1');">1');">1');">1985), and Plaintiff submitted his Witness List and Exhibit List [51');">1');">1');">1 &amp. 52], along with what he labeled Exhibits A, B (2 pages), C, and E regarding his ARP [53, 54, 55, &amp. 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 (5^th 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 (5^th 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 (5^th 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 ...