United States District Court, S.D. Mississippi, Western Division
ORDER ADOPTING REPORT AND RECOMMENDATION
BRAMLETTE, UNITED STATES DISTRICT JUDGE.
cause is before the Court on Plaintiff Raymond Keith
Thomas's Complaint pursuant to 42 U.S.C. § 1983
[Doc. 1]; on the Defendants' Motion for Summary Judgment
[Doc. 26]; and on United States Magistrate
Judge Michael T. Parker's Report and Recommendation
[Doc. 37]. This Court ADOPTS the Report and
Recommendation, GRANTS the Defendants' Motion for Summary
Judgment, and DISMISSES the action WITHOUT PREJUDICE.
Keith Thomas (“Thomas”), proceeding pro se and in
forma pauperis, filed a Complaint [Doc. 1] pursuant to 42
U.S.C. § 1983. Thomas alleges that Defendants Gabriel
Walker and Jody Bradley directed Officer Davis  [see Doc. 15] to
give Thomas's mail to another inmate. See Doc. 1
and Doc. 17. Thomas claims that because his mail was given to
another inmate, he missed responding to a notice form the
Southern Poverty Law Center and the Mississippi Bar. Doc. 17.
Thomas claims that the alleged mishandling of his mail
constituted retaliation and violated his right to due
process. Doc. 17. Thomas filed an Administrative Remedy
Program (“ARP”) grievance, complaining that his
mail was given to another inmate. Doc. 26-1, p.1, 3. On
November 5, 2016, Deputy Warden Gabriel Walker completed a
First Step Response. Doc. 26-1, p.2. Mr. Thomas received the
completed response on November 25, 2016. Id. The
First Step Response stated, “If you are not satisfied
with this response, you may go to Step Two by checking below
and forwarding to the ARP Legal Claims Adjudicator within 5
days of your receipt of this decision.” Doc. 26-1, p.4.
Thomas submitted his second step appeal to the inmate legal
assistance program on December 6, 2016-eleven days after
Thomas received the First Step Response. Doc. 26-1, p.2, 6.
Thomas's appeal was denied as untimely. Doc. 26-1, p.2,
judgment is proper if the defendants shows that there is no
genuine dispute as to any material fact and that it is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a).
If the defendants show the absence of a disputed material
fact, Thomas cannot, in reply, simply direct the Court to
conclusory allegations or a scintilla of evidence favorable
to him. Lincoln v. Scott, 887 F.3d 190, 195 (5th
Cir. 2018). He must instead “go beyond the pleadings
and designate specific facts showing that there is a genuine
issue for trial.” McCarty v. Hillstone Restaurant
Grp., Inc., 864 F.3d 354, 357 (5th Cir. 2017).
Court views facts and draws reasonable inferences in
Thomas's favor. Vann v. City of Southaven,
Miss., 884 F.3d 307, 309 (5th Cir. 2018). As always, the
Court neither assesses credibility nor weighs evidence at the
summary-judgment stage. Wells v. Minnesota Life Ins.
Co., 885 F.3d 885, 889 (5th Cir. 2018).
Prison Litigation Reform Act (“PLRA”) requires
prisoners to exhaust any available administrative remedies
before filing suit under 42 U.S.C. § 1983. 42. U.S.C.
§1997e(a). PLRA non-exhaustion is an affirmative
defense, and defendants bear the burden of proving that a
prisoner has failed to exhaust available administrative
remedies. Jones v. Bock, 549 U.S. 199, 216 (2007);
see Dillon v. Rogers, 596 F.3d 260, 266 (5th Circuit
2010). A prisoner cannot satisfy PLRA's exhaustion
requirement by filing an “untimely or otherwise
procedurally defective administrative grievance.”
Woodford v. Ngo, 548 U.S. 81, 83 (2206).
appeal was untimely. Doc. 26-1, p.7. Therefore, the Court
adopts Magistrate Judge Parker's Report and
Recommendation, grants the defendants' motion to dismiss,
and dismisses this action without prejudice.
IT IS ORDERED that Magistrate Judge Michael T. Parker's
Report and Recommendation [Doc. 37] is
ADOPTED as the findings and conclusions of this Court;
ORDERED that Defendants' Motion for Summary Judgment
[Doc. 26] is GRANTED, and Plaintiff Raymond
Keith Thomas's ...