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Schmitt v. United States

United States District Court, S.D. Mississippi, Northern Division

August 6, 2018

KENNETH SCHMITT PLAINTIFF
v.
UNITED STATES OF AMERICA et al DEFENDANTS

          PROPOSED FINDINGS OF FACT AND RECOMMENDATION

          ROBERT H. WALKER, UNITED STATES MAGISTRATE JUDGE.

         Kenneth Schmitt, proceeding pro se and in forma pauperis, filed a claim pursuant to the Federal Tort Claims Act (FTCA) against the United States of America and a Bivens[1]action against several officials and employees of the Federal Correctional Complex in Yazoo City, Mississippi. Doc. [1]. In his complaint, Plaintiff alleges the following causes of action: (1) hazardous conditions of confinement in the FCC-Yazoo City Segregated Housing Unit (SHU) resulting from backed up sewage flooding the unit; (2) denial of due process during disciplinary proceedings; and (3) denial of medical care for abdominal pain and diarrhea. Defendants have filed a motion to dismiss or, in the alternative, for summary judgment. Doc. [20]. Plaintiff filed a response in opposition and requests the opportunity to conduct discovery. Doc. [26]. The undersigned recommends that Defendants' motion be granted in part and denied in part. Specifically, all of Plaintiff's claims should be dismissed, with the exception of Plaintiff's FTCA medical malpractice claim against the United States of America.

         At the time of the incidents in question, Plaintiff was housed at FCC-Yazoo City. He alleges that on October 5, 2015, an officer discovered contraband (tobacco) in the cell occupied by Plaintiff and inmate Anthony Gentry. According to Plaintiff, Gentry admitted that the contraband belonged to him. Nevertheless, Plaintiff was placed in the SHU pending a disciplinary hearing. While confined in the SHU, multiple floods occurred because of toilets backing up. During the early evening hours of October 24, 2015, a toilet backed up causing sewage to flood the area. When officers noticed the flood, they advised inmates to use bedding and clothing to block the flow of sewage from entering their cells. After the sewage flow stopped, an orderly cleaned the hallway. Inmates were not given new linens or clothing until more than 25 hours after the flood. Plaintiff did not receive cleaning supplies until October 25, 2015 at 6:00 pm. On October 27, 2015, a plumbing crew removed a washcloth from the pipes. Plaintiff alleges that he began to have abdominal pain and diarrhea some time after the flooding incident, for which he sought and received medical treatment. Plaintiff complains that the medical treatment was inadequate. He contends that Defendant Dr. Natal cancelled or lost several tests of blood and stool samples.

         With respect to the disciplinary proceedings for the contraband found in Plaintiff's cell, Defendant Derrick Mosely conducted a hearing. Defendant Mosley found Plaintiff guilty of possession of contraband and sentenced him to 30 days of segregation in the SHU and six months restrictions on personal property, commissary, visitation, and phone privileges. Plaintiff alleges he was found guilty because he refused to make a statement against his cellmate Anthony Gentry. But for his confinement in the SHU, Plaintiff alleges he would not have been subjected to the hazardous conditions caused by the flood of October 24, 2015.

         Law and Analsyis

         Standard of Review

         When reviewing a motion to dismiss pursuant to Rule 12(b)(6), the court must accept all well-pleaded facts as true and view the facts in the light most favorable to the plaintiff. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). Dismissal is warranted if “it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle him to relief.” Doe v. Dallas Indep. School Dist., 153 F.3d 211, 215 (5th Cir. 1998). Motions to dismiss under Rule 12(b)(6) are disfavored and rarely granted. Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 725 (5th Cir. 2002).

         With respect to motions for summary judgment, Rule 56 provides that “[t]he 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); Sierra Club, Inc. v. Sandy Creek Energy Assocs., L.P., 627 F.3d 134, 138 (5th Cir. 2010). Where the summary judgment evidence establishes that one of the essential elements of the plaintiff's cause of action does not exist as a matter of law, all other contested issues of fact are rendered immaterial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Topalin v. Ehrman, 954 F.2d 1125, 1138 (5th Cir. 1992). In making its determinations of fact on a motion for summary judgment, the court must view the evidence submitted by the parties in a light most favorable to the non-moving party. McPherson v. Rankin, 736 F.2d 175, 178 (5th Cir. 1984).

         The moving party has the duty to demonstrate the lack of a genuine issue of a material fact and the appropriateness of judgment as a matter of law to prevail on its motion. Union Planters Nat'l Leasing v. Woods, 687 F.2d 117 (5th Cir. 1982). The movant accomplishes this by informing the court of the basis of its motion, and by identifying portions of the record which highlight the absence of genuine factual issues. Topalian, 954 F.2d at 1131. “Rule 56 contemplates a shifting burden: the nonmovant is under no obligation to respond unless the movant discharges [its] initial burden of demonstrating [entitlement to summary judgment].” John v. State of Louisiana, 757 F.3d 698, 708 (5th Cir. 1985). Once a properly supported motion for summary judgment is presented, the nonmoving party must rebut with “significant probative” evidence. Ferguson v. Nat'l Broad. Co., Inc., 584 F.2d 111, 114 (5th Cir. 1978).

         Exhaustion

         As a threshold matter, Defendants argue that Plaintiff failed to exhaust the Bureau of Prison's administrative remedies for his claims against the individual Defendants. No. action shall be brought with respect to prison conditions under 42 U.S.C. § 1983, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies are exhausted. 42 U.S.C. § 1997e(a). This exhaustion requirement extends to Bivens suits brought by federal prisoners. Porter v. Nussle, 534 U.S. 516, 524 (2002). Exhaustion is mandatory, even if the inmate seeks monetary relief. Booth v. Churner, 532 U.S. 731, 740-41 (2001). “[T]he PLRA exhaustion requirement requires proper exhaustion.” Woodford v. Ngo, 548 U.S. 81, 93 (2006). That is, “prisoners must complete the administrative review process in accordance with the applicable procedural rules-rules that are defined not by the PLRA, but by the prison grievance process itself.” Jones v. Bock, 549 U.S. 199, 218 (2007) (internal citation and quotation marks omitted). The Fifth Circuit takes “a strict approach to the exhaustion requirement.” Days v. Johnson, 322 F.3d 863, 866 (5th Cir. 2003)

         Defendants have presented evidence demonstrating that Plaintiff failed to fully exhaust the Bureau of Prison's administrative remedies as to all claims except his FTCA claim against the United States. Doc. [20-5]. The evidence of record demonstrates that Plaintiff initiated administrative proceedings against Defendant Mosley; however, Plaintiff did not seek additional review following disposition of the rehearing. Id. at 3. In fact, Plaintiff ultimately succeeded on his appeal, which probably explains why he did not seek further administrative review. Defendant Mosley expunged Plaintiff's disciplinary infraction and restored Plaintiff's good- conduct credit and privileges. Doc. [20-2] at 2. Plaintiff also initiated proceedings regarding hazardous conditions in the SHU. Doc. [20-5] at 3. However, the record demonstrates that Plaintiff did not see these proceedings through to conclusion. Id.

         In response to Defendant's motion, Plaintiff asserts that he has exhausted all administrative remedies but alleges that grievances have disappeared or not been responded to in a timely fashion or were subject to tampering by prison officials. Doc. [26] at 1-3. He believes that he can prove exhaustion through the discovery process. Id. Plaintiff offers no documentary evidence or specific factual allegations with regard to his exhaustion theory. He does not explain how discovery might demonstrate that full exhaustion in fact occurred, or was somehow prevented by prison officials. In light of Defendants' summary judgment evidence demonstrating the absence of exhaustion, Plaintiff fails to provide a sufficient basis for allowing discovery on the exhaustion issue. Plaintiff's mere speculations and unsupported assertions are not sufficient to contradict Defendants' evidence. As such, the undersigned recommends that Plaintiff's claims against the individually named Defendants be dismissed based on Plaintiff's failure to exhaust administrative remedies. In the alternative, the undersigned finds that Plaintiff's claims against the individual Defendants fail on the merits.

         Conditions ...


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