United States District Court, N.D. Mississippi, Aberdeen Division
B. BIGGERS SENIOR U.S. DISTRICT JUDGE
matter comes before the court on the pro se prisoner
complaint of Milford Lee Roop, who challenges the conditions
of his confinement under 42 U.S.C. § 1983. For the
purposes of the Prison Litigation Reform Act, the court notes
that the plaintiff was incarcerated when he filed this suit.
The plaintiff has brought the instant case under 42 U.S.C.
§ 1983, which provides a federal cause of action against
“[e]very person” who under color of state
authority causes the “deprivation of any rights,
privileges, or immunities secured by the Constitution and
laws.” 42 U.S.C. § 1983. He alleges that the
defendants used excessive force against him during his stay
at the Itawamba County Jail and, on several occasions, failed
to provide him with adequate medical treatment. The
defendants have moved for summary judgment on all issues; the
plaintiff has not responded, and the deadline to do so has
expired. For the reasons set forth below, the defendants'
motion for summary judgment will be granted, and the instant
case with be dismissed for failure to exhaust administrative
judgment is appropriate if the “materials in the
record, including depositions, documents, electronically
stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials”
show 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) and (c)(1).
“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) (citing Celotex Corp. v. Catrett, 477 U.S. 317
(1986), cert. denied, 484 U.S. 1066 (1988)). After a
proper motion for summary judgment is made, the burden shifts
to the non-movant to set forth specific facts showing that
there is a genuine issue for trial. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91
L.Ed.2d 202 (1986); Beck, 204 F.3d at 633; Allen
v. Rapides Parish School Bd., 204 F.3d 619, 621
(5th Cir. 2000); Ragas v. Tennessee Gas
Pipeline Company, 136 F.3d 455, 458 (5th Cir.
1998). Substantive law determines what is material.
Anderson, 477 U.S. at 249. “Only disputes over
facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary
judgment. Factual disputes that are irrelevant or unnecessary
will not be counted.” Id., at 248. If the
non-movant sets forth specific facts in support of
allegations essential to his claim, a genuine issue is
presented. Celotex, 477 U.S. at 327. “Where
the record, taken as a whole, could not lead a rational trier
of fact to find for the non-moving party, there is no genuine
issue for trial.” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587, 89 L.Ed.2d 538
(1986); Federal Savings and Loan, Inc. v. Krajl, 968
F.2d 500, 503 (5thCir. 1992). The facts are
reviewed drawing all reasonable inferences in favor of the
non-moving party. Allen, 204 F.3d at 621; PYCA
Industries, Inc. v. Harrison County Waste Water Management
Dist., 177 F.3d 351, 161 (5th Cir. 1999);
Banc One Capital Partners Corp. v. Kneipper, 67 F.3d
1187, 1198 (5th Cir. 1995). However, this is so
only when there is “an actual controversy, that is,
when both parties have submitted evidence of contradictory
facts.” Little v. Liquid Air Corp., 37 F.3d
1069, 1075 (5th Cir. 1994); see Edwards v.
Your Credit, Inc., 148 F.3d 427, 432 (5th
Cir. 1998). 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
Roop claims that on December 11 or December 18, 2015, he had
very bad chest pains - and that defendant Greg Wilemon would
not call the emergency medical services to examine him. Mr.
Roop alleges that, instead, another jailer called emergency
services, and the jail officer who drove him traveled no more
than 20 mph on the way to the emergency room. Mr. Roop
alleges further that on December 12, 2015, Jailor Greg
Wilemon choked him for three or four minutes, then pushed him
down in his cell - aggravating chest pains that he had felt
the day before. Mr. Roop alleges that on December 29, 2015,
Greg Wilemon would not dispense Roop's diabetic
medication to him or check his blood sugar levels. He also
claims that no one gave him his prescribed snacks. Finally,
Mr. Roop alleges that Greg Wilemon would not permit him to
have prescribed medications for the first 14 of his stay at
the Itawamba County Jail. Mr. Roop states that he did,
however, see a doctor after the first 14 days and received
his previously-prescribed medications, other than Plavix.
of Administrative Remedies
enacted the Prison Litigation Reform Act
(“PLRA”), 42 U.S.C. §1997e et seq.
- including its requirement that inmates exhaust their
administrative remedies prior to filing suit - in an effort
to address the large number of prisoner complaints filed in
federal courts. See Jones v. Bock, 549 U.S.
199, 202 (2007). Congress meant for the exhaustion
requirement to be an effective tool to help weed out the
frivolous claims from the colorable ones:
Prisoner litigation continues to ‘account for an
outsized share of filings' in federal district courts.
Woodford v. Ngo, 548 U.S. 81, 94, n. 4, 126 S.Ct.
2378 (2006) (slip op., at 12, n.4). In 2005, nearly 10
percent of all civil cases filed in federal courts nationwide
were prisoner complaints challenging prison conditions or
claiming civil rights violations. Most of these cases have no
merit; many are frivolous. Our legal system, however, remains
committed to guaranteeing that prisoner claims of illegal
conduct by their custodians are fairly handled according to
law. The challenge lies in ensuring that the flood of
non-meritorious claims does not submerge and effectively
preclude consideration of the allegations with merit. See
Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827,
104 L.Ed.2d 338 (1989).
Congress addressed that challenge in the PLRA. What this
country needs, Congress decided, is fewer and better prisoner
suits. See Porter v. Nussle, 534 U.S. 516, 524, 122
S.Ct. 983, 152 L.Ed.2d 12 (2002) (PLRA intended to
“reduce the quantity and improve the quality of
prisoner suits”). To that end, Congress enacted a
variety of reforms designed to filter out the bad claims and
facilitate consideration of the good. Key among these was the
requirement that inmates complaining about prison conditions
exhaust prison grievance remedies before initiating a
Jones v. Bock, 549 U.S. 199, 203 (2007).
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. The exhaustion requirement protects
administrative agency authority, promotes efficiency, and
produces “a useful record for subsequent judicial
consideration.” Woodford v. Ngo, 548 U.S.81,
89 (2006). 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); see also Johnson v.
Ford, 261 Fed.Appx. 752, 755 (5th Cir.
2008)(the Fifth Circuit takes “a strict approach”
to the PLRA's exhaustion requirement)(citing Days v.
Johnson, 322 F.3d 863, 866 (5th Cir. 2003));
Lane v. Harris Cty.Med.Dep't, No. 06-20935, 2008
WL 116333, at *1 (5th Cir. Jan.11, 2008)(under the
PLRA, “the prisoner must not only pursue all available
avenues of relief; he must also comply with all
administrative deadlines and procedural rules”).
Indeed, “a prisoner must now exhaust administrative
remedies even where the relief sought - monetary damages -
cannot be granted by the administrative process.”
Booth v. Churner, 532 U.S. 731, 739 (2001).
requirement that claims be exhausted prior to the filing of a
lawsuit is mandatory and non-discretionary. Gonzalez v.
Seal, 702 F.3d 785 (5th Cir.2012).
“Whether a prisoner has exhausted administrative
remedies is a mixed question of law and fact.”
Dillon v. Rogers, 596 F.3d 260, 266 (5th
Cir. 2010). As “exhaustion is a threshold issue that
courts must address to determine whether litigation is being
conducted in the right forum at the right time, . . . judges
may resolve factual disputes concerning exhaustion without
the participation of a jury.” Id. at 272. The
Supreme Court has also recognized the need for a prisoner to
face a significant consequence for deviating from the prison
grievance procedural rules:
The benefits of exhaustion can be realized only if the prison
grievance system is given a fair opportunity to consider the
grievance. The prison grievance system will not have such an
opportunity unless the grievance complies with the
system's critical procedural rules. A prisoner who does
not want to participate in the prison grievance system will
have little incentive to ...