United States District Court, S.D. Mississippi, Northern Division
OPINION AND ORDER
R. ANDERSON UNITED STATES MAGISTRATE JUDGE
Nurse Christina Charczenko filed a Motion to Dismiss  and
a Motion for Summary Judgment Based on Plaintiff's
Failure to Exhaust Available Administrative Remedies ,
contending that Plaintiff Sylvester Lee Branch never filed a
grievance naming her and describing his claims against her.
She requests that his Complaint be dismissed in this case due
to his failure to exhaust the Administrative Remedy Program
[ARP] provided by the Mississippi Department of Corrections
[MDOC]. She attached Affidavits by Le Tresia Stewart,
Investigator II for the ARP at Central Mississippi
Correctional Facility [CMCF], certifying the ARP files for
two grievances filed by Branch [41-1, 1');">p. 1, and 41-2, 1');">p. 1],
along with the ARP files. Branch testified regarding his
attempts to exhaust at the hearing conducted before the Court
under the authority of Spears v. McCotter, 766 F.2d
179 (5th Cir. 1985). He also filed his written
response  to the motions.
thorough review of the pleadings and exhibits, Branch's
sworn testimony, and the applicable law, the Court finds that
Defendant's motion  shall be granted based upon
to exhaust is an affirmative defense, so Defendant has the
burden of demonstrating that Branch failed to exhaust his
administrative remedies. Jones v. Bock, 549 U.S.
199, 216 (2007). At the summary judgment stage, this means
that Defendant “must establish beyond peradventure all
of the essential elements of the defense of exhaustion to
warrant summary judgment in their favor.” Dillon v.
Rogers, 260');">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, 204
F.3d 629, 633 (5th Cir. 2000) (citing Celotex
Corp. v. Catrett, 17');">477 U.S. 317, 327 (1986)). The burden
shifts to the nonmovant to set forth specific facts showing
that there is a genuine issue for trial. Allen v. Rapides
Parish Sch. Bd., 204 F.3d 619');">204 F.3d 619, 621 (5th Cir.
was a convicted felon in the custody of the MDOC and housed
at CMCF n Pearl, Mississippi, on or about April 11, 2017,
when he filed his Complaint. The only Defendants initially
named were the MDOC, CMCF Warden Brian Ladner, “Sgt.
Allen” (Mona Allen), and Defendant Charczenko. Sgt.
Allen has not been served with process or otherwise entered
an appearance. The only claim against this Defendant
Charczenko is that she violated the Health Insurance
Portability and Accountability Act of 2003
(“HIPAA”) by disclosing to prison officials that
Branch received “ointment” from the prison
clinic. [1, p. 4; 1-1, p1');">p. 15-17.]
incident which gave rise to this lawsuit occurred on October
26, 2016, when Branch was involved in an altercation with
prison officials. Officials confronted him about his
“unauthorized movement” during a lock-down at the
prison. Plaintiff claimed that he was allowed in the area
because he needed to be at the prison clinic for medication.
When officials checked with the clinic about this, the duty
nurse confirmed that Branch did receive ointment. However,
she informed them that it was not urgent and Branch had no
received Rules Violation Reports after the incident. He
appealed the decision of the disciplinary hearing, but he
never mentioned any actions taken by Nurse Charczenko on
October 26, 2016. On December 6, 2016, Warden Ladner denied
his appeals of the RVR's and told him he had fulfilled
the ARP requirements and was “eligible to seek judicial
review within 30 days” from the receipt of the First
Step Response. Branch did appeal by filing suit in the
Circuit Court of Rankin County on February 23, 2017, but that
court dismissed the appeal as untimely. He filed this lawsuit
on April 11, 2017.
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');">260 F.3d 357, 358 (5th Cir. 2001).
This is so regardless of whether the inmate's ultimate
goal is a remedy not offered by the administrative process,
such as money damages. Id.
Jones v. Bock, 549 U.S. at 211, the Supreme Court
confirmed that exhaustion was mandatory under the PLRA and
that “unexhausted claims cannot be brought in
court.” Citing Jones, the Fifth Circuit
restated 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, 2 F.3d 785');">702 F.3d 785, 787-88
(5th Cir. 2012) (per curiam); Moussazadeh v.
Texas Dept. of Criminal Justice, 1');">703 F.3d 781, 788
(5th Cir. 2012) (quoting Gonzalez).
October 4, 2017, affidavits by Le Tresia Stewart certifies as
to the authenticity of the ARP files of Branch's
Grievance No. CMCF-16-3049 and CMCF-16-3037 [41-1, 1');">p. 1;
41-2, 1');">p. 1]. The files reveal that Branch only appealed his
RVR and requested that his RVR be dismissed.
Administrative Remedy Program has been implemented by the
MDOC statewide in all prisons, including MSP, under the
authority of Miss. Code Ann. § 47-5-801. The Court
initially approved the MDOC ARP in Gates v. Collier,
GC 71-6-S-D (N.D. Miss. 1971) (Order entered Feb. 15, 1994).
The current two-step process is described in the Inmate
Handbook and utilizes the Administrative Remedy Program and
the Inmate Legal Assistance Program. Inmates may request
information or assistance in using the program from their
Case Manager or from any staff member in their housing unit.
(See MDOC Inmate Handbook, ch. VIII, available at
http://www.mdoc.ms.gov). A copy is attached as Exhibit 3 to
Defendant's motion [41-3].
exhaustion requirement demands proper exhaustion, to
be finished before filing the federal lawsuit. According to
the MDOC ARP, this means the initial grievance must be filed
within 30 days of the incident. In Woodford, the
Supreme Court found that the PLRA's exhaustion
requirement means “proper” exhaustion, which
requires a prisoner to “complete the administrative
review process in accordance with the applicable procedural
rules, including deadlines, as a precondition to
bringing suit in federal court.” Woodford, at
83-84. See also Gordon v. Yusuff, No. 03-60822, 2004
WL 1551625, at *1 (5th Cir. 2004) (a federal
prisoner's untimely appeal to Central Office constituted
grounds for dismissal based upon non-exhaustion). It is the
prison's requirements, not the PLRA, that define the
requirements of exhaustion. Jones v. Bock, 549 U.S
defeat a summary judgment motion, competent evidence must be
provided to defeat that set forth by the movants. Although
Branch insists that he exhausted against all Defendants, his
ARP file does not contain his HIPAA claim or any other claim
against Defendant Charczenko. In fact, she is not named in
the ARP proceedings attached by Defendant to the motion, or
in Branch's attachments to his Complaint. His grievances
involve his appeal of the Rules Violations Reports that he
received, although he did testify that he exhausted as to
Defendant Charczenko. In his response to the motion, Branch
attaches a pleading filed in the Rankin County Circuit Court,
appealing his RVR #01566241 and RVR #01566242. [51-1]. In
this pleading, he does describe his claims against
“Sgt. Allen” and states that ...