United States District Court, S.D. Mississippi, Northern Division
PROPOSED FINDINGS OF FACT AND RECOMMENDATION
H. WALKER, UNITED STATES MAGISTRATE JUDGE.
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
Bivensaction against several officials and
employees of the Federal Correctional Complex in Yazoo City,
Mississippi. Doc. . 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. .
Plaintiff filed a response in opposition and requests the
opportunity to conduct discovery. Doc. . 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
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.
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.
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).
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).
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.
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)
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.
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.  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.