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Simmons v. Moore

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

September 24, 2018

DESTRICK SIMMONS, #76569 PLAINTIFF
v.
SERGEANT MOORE, DEPUTY BELL, and JOHN DOES DEFENDANTS

          ORDER ADOPTING REPORT AND RECOMMENDATION AND GRANTING MOTION TO DISMISS

          DAVID BRAMLETTE UNITED STATES DISTRICT JUDGE.

         This 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).

         Defendant 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 dismissed.

         Defendants 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 be granted.

         The 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 body.

         Failure 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).

         “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 (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).

         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 exhausted.”

         The 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, 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).

         In 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).

         The 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).

         As 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).

         As 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 ...


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