United States District Court, S.D. Mississippi, Western Division
REPORT AND RECOMMENDATION
MICHAEL T. PARKER 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
Willie Morris, proceeding pro se and in forma
pauperis, is a post-conviction inmate in the custody of
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 December 6, 2016.
Court held an Omnibus hearing in the matter on March 23,
2018. According to Plaintiff, the Vice Lords gang has a
“kill on sight” order for him. See
Complaint  at 4; see also Omnibus Order  at
2. Plaintiff claims that upon his arrival at WCCF, he
informed Treel Daniels and Allen Chapman that his life was in
danger, but they told him he would be fine and placed him in
a holding cell with seven other inmates. Id.
Plaintiff asserts that he should not have been placed in that
cell because he had previously placed a “red tag”
on one of the inmates when housed at a previous prison.
“Red tagged” inmates are generally separated from
one another. According to Plaintiff, he was later stabbed by
this inmate and was taken to the hospital. Id. After
receiving medical attention, Plaintiff was placed in
claims he is in fear for his life because others are still
attempting to harm him. He further asserts that Warden Walker
will not transfer him to another prison. Plaintiff seeks
compensatory damages and injunctive relief in the form of an
order requiring prison officials to transfer him to Central
Mississippi Correctional Facility.
filed their Motion  for Summary Judgment on March 21,
2018, asserting that this matter should be dismissed because
Plaintiff failed to exhaust his administrative remedies
before filing his claim. On March 23, 2018, the Court
directed Plaintiff to respond to the motion on or before
April 6, 2018, and he has not done so. See Order
. As the deadline for Plaintiff to respond has passed,
the motion is now ripe for disposition.
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 for failure to exhaust
administrative remedies where the evidence revealed that an
inmate has not followed prison guidelines for filing
grievances. Stout v. North-Williams, 476 Fed.Appx.
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.Appx. 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 Administrative Remedy Program
Coordinator at WCCF. See [32-1]. They also submit
Plaintiff's grievance form which he filed while at WCCF.
Id. at 3-10. In her affidavit, Williams states that
Plaintiff filed an ARP grievance on or about October 31,
2016, and the Complaint was filed on December 6, 2016, about
37 days later. Major Terry Daniel submitted a First Step
Response on January 2, 2017, and Morris then appealed to the
second step. The two-step ARP process was completed on
February 3, 2017, when Morris received a Second Step Response