United States District Court, S.D. Mississippi, Northern Division
ORDER ADOPTING REPORT AND RECOMMENDATION AND GRANTING
MOTION TO DISMISS
BRAMLETTE UNITED STATES DISTRICT JUDGE.
cause is before the Court on the plaintiff Destrick
Simmons's Complaint pursuant to 42 U.S.C. § 1983
(docket entry 1), and on United States Magistrate Judge Linda
R. Anderson's Report and Recommendation
(“R&R”) (docket entry 41).
Sergeant Erica Moore filed a Motion to Dismiss (docket entry
33) stating 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 (docket entry 22). Inasmuch as the plaintiff does not
object to the dismissal of defendant Erica Moore, Magistrate
Judge Anderson recommends that Sergeant Erica Moore be
Sergeant Jonathan Moore and Deputy Damien Bell filed a Motion
to Dismiss or Grant Summary Judgment for Plaintiff's Lack
of Grievance Filed (docket entry 37), asking that they be
dismissed. Simmons objects to the relief sought. In her
R&R, Magistrate Judge Anderson recommends that the motion
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 (“JDC”), which is a part
of the Hinds County Detention Center (“HCDC”).
Simmons was housed at the JDC on or about October 28, 2016,
on a bench warrant for misdemeanor child support. On that
date, he alleges that he was assaulted by the 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
to exhaust is an affirmative defense, so the defendants have
the burden of demonstrating that Simmons failed to exhaust
his administrative remedies. Jones v. Bock, 549 U.S.
199, 216 (2007). At the summary judgment stage, this means
that the 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).
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 (5thCir.
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).
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 exhausted.”
statute clearly requires an inmate bringing a civil rights
action 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,
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, 548 U.S. 81,
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.
Jones v. Bock, 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, 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 omitted).
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 the plaintiff's non-exhaustion, the
defendants have attached the Hinds County Sheriff's
Office's Policy #07.002, entitled “Grievances,
” as well as the Affidavit of Keneshia Jones (docket
entry 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 (docket entry 37-1). 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 (docket entry 37-1).
Magistrate Judge Anderson points out, the 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, the
defendants correctly attached the ...