United States District Court, S.D. Mississippi, Northern Division
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
R. ANDERSON, UNITED STATES MAGISTRATE JUDGE
case is before the undersigned United States Magistrate Judge
for report and recommendation on two dispositive motions.
First, Defendant Sergeant Erica Moore filed a Motion to
Dismiss , contending that she is the wrong “Officer
Moore” served with process in this case. The correct
“Officer Moore” is Sergeant Jonathan Moore, who
has filed an Answer . Plaintiff Destrick Simmons does not
object to dismissing Sergeant Erica Moore, and her motion
should be granted.
Defendants Sergeant Jonathan Moore and Deputy Damien Bell
filed a “Motion to Dismiss or Grant Summary Judgment
for Plaintiff's Lack of Grievance Filed” ,
asking that they be dismissed. Simmons objects to the relief
sought. After reviewing the pleadings and the applicable law,
the undersigned recommends that the motion be granted.
moving Defendants assert that the claims of Plaintiff Simmons
filed pursuant to 42 U.S.C. §1983 should be dismissed
due to his failure to exhaust his remedies that were
available to him through the grievance procedures at the
Jackson Detention Center, which is a part of the Hinds County
Detention Center [HCDC]. Simmons was housed at the downtown
center on or about October 28, 2016, on a bench warrant for
misdemeanor child support. On that date, he alleges that he
was assaulted by these Defendants because they thought he had
a cigarette. They punched and kicked him in the face,
according to Simmons, leaving him with a split lip, black
eye, and bruised forehead and upper body.
to exhaust is an affirmative defense, so these Defendants
have the burden of demonstrating that Simmons failed to
exhaust his administrative remedies. Jones v. Bock,
199');">549 U.S. 199, 216 (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 (5th
Cir. 2010). 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, 304 F.3d 629, 633 (5th Cir.
2000) (citing Celotex Corp. v. Catrett, 477 U.S.
317, 327 (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., 304
F.3d 619, 621 (5th Cir. 2000).
Defendants point out, the applicable section of the Prison
Litigation Reform Act (“PLRA”), 42 U.S.C. §
1997(e), provides that “[n]o action shall be brought
with respect to prison conditions under section 1983 of this
title, or any other Federal law, by a prisoner confined in
any jail, prison, or other correctional facility until such
administrative remedies as are available are
statute clearly requires an inmate bringing a civil rights
action in this Court to first exhaust his available
administrative remedies. Booth v. Churner, 532 U.S.
731, 739 (2001). Exhaustion is no longer left to the
discretion of the district court, but is mandatory.
Porter v. Nussle, 16');">534 U.S. 516, 524 (2002).
Exhaustion will not be excused when an inmate fails to timely
exhaust his administrative remedies; the exhaustion
requirement also means “proper exhaustion.”
Woodford v. Ngo, 1');">548 U.S. 81, 83-84 (2006). It is
not enough to merely initiate the grievance process or to put
prison officials on notice of a complaint; the grievance
process must be carried through to its conclusion. Wright
v. Hollingsworth, 260 F.3d 357, 358 (5th Cir. 2001).
Jones v. Bock, 199');">549 U.S. 199, 211 (2007), the Supreme
Court confirmed that exhaustion was mandatory under the PLRA
and that “unexhausted claims cannot be brought in
court.” The United States Supreme Court reiterated in
Ross v. Blake, 136 S.Ct. 1850');">136 S.Ct. 1850, 1856-57 (2016), that
exhaustion is mandatory and that a court may not excuse a
failure to exhaust, “even to take ‘special
circumstances' into account.” Judicial discretion
is foreclosed. Id. “Time and again, this Court
has rejected every attempt to deviate from the PLRA's
textual mandate.” Id., citations
Fifth Circuit has confirmed that “the PLRA pre-filing
exhaustion requirement is mandatory and non-discretionary,
” and that “district courts have no discretion to
waive the PLRA's pre-filing exhaustion
requirement.” Gonzalez v. Seal, 702 F.3d 785,
787-88 (5th Cir. 2012) (per curiam).
evidence of Plaintiff's non-exhaustion, Defendants have
attached the Hinds County Sheriff's Office's Policy
#07.002, entitled “Grievances, ” as well as the
Affidavit of Keneshia Jones [37-1], the Grievance Officer of
the Hinds County Detention Facility for the past four years.
She is in charge of maintaining the grievance forms of
inmates. She alleges that Destrick Simmons filed only one
grievance while housed in Hinds County, and it was dated
February 27, 2017, and received by her on March 1, 2017
[37-1, p. 3]. In this grievance, Simmons asks to be
reclassified and complains about gang members in the zone.
No. mention is made of an assault on him by officers. Ms.
Jones attached to her affidavit the grievance policy which
was in place when Simmons was incarcerated [37-1, pp. 4-6].
Defendants erroneously refer in their memoranda to 28 C.F.R.
§§ 542.10-542.19, which contains the four-step
administrative remedies process for the Federal Bureau of
Prisons. This procedure is inapplicable to those inmates
housed at any state prison, either county jails or a
Mississippi Department of Corrections facility. However,
Defendants correctly attach the controlling “Detention
Policies & Procedures” for the Hinds County
Sheriff's Office [37-1].
Complaint, Simmons contends that he did file a grievance on
this matter, giving it to Deputy Mitchell in the Hinds County
Jail. When asked the result of his grievance, Simmons wrote
that he “was moved by Warden Rushing because I was not
supposed to have been housed with felony suspects.”
Complaint [1, p. 10]. When asked what steps he took to appeal
the decision, he wrote “I was moved so was unable to
complete the process. But exercised good faith in the
procedure.” Complaint [1, p. 10]. He provided no
details, but apparently alleges that he did not receive an
response to Defendants' motion, Plaintiff wrote that Ms.
Jones worked for the Hinds County Detention Center, not for
the downtown detention center. According to Simmons, he filed
his grievance downtown, and that center has “all
records and a grievance on the incidents and report on what
happened.” [39, p. 1]. He continued:
Contact: Warden Ms. Rushing, Captain Ms. Dawson, Lt. Ms.
Williams, and medical staff which was working at that time
and year of 2016 October through day 26-29. Which I got move
to the county farm ... until I went home ...