United States District Court, S.D. Mississippi, Northern Division
ROBERT ELLIS, JR. PLAINTIFF
WARDEN CHERON Y. NASH DEFENDANT
REPORT AND RECOMMENDATION
C. GARGIULO UNITED STATES MAGISTRATE JUDGE
THE COURT is the Motion to Dismiss or, in the Alternative,
for Summary Judgment (ECF No. 19) filed by Defendant Cheron
Y. Nash, who at all times pertinent to this suit was the
Warden at Federal Correctional Complex Yazoo City's
Medium Security component in Yazoo City, Mississippi
(“FCC Yazoo Medium”). Plaintiff Robert Ellis, Jr.
filed this suit pro se and in forma
pauperis while serving a term of imprisonment at FCC
Yazoo Medium. Ellis responded to Warden Nash's Motion by
filing two Motions: a motion entitled âPetitioner Motion to
Move Forward or, in the Alternative, for Summary Judgmentâ
(ECF No. 28) and a âMemorandum in Support of Motion to Amend
in Order to State a Claim in Which Relief Can be Granted
Under the Bivens Actionâ (ECF No. 29).
considered the submissions of the parties, the record, and
relevant law, the undersigned recommends that Warden
Nash's Motion to Dismiss or, in the Alternative, for
Summary Judgment (ECF No. 19) be GRANTED IN PART. Warden Nash
should be granted summary judgment because Ellis failed to
exhaust the claim in his Complaint through the Bureau of
Prisons' Administrative Remedy Program (ARP). Warden
Nash's Motion should be DENIED in all other respects.
Ellis' Motions (ECF Nos. 28, 29) should be DENIED.
August 24, 2017, Ellis sustained physical injuries as a
result of a gas explosion in a food services area at FCC
Yazoo Medium where he was an inmate worker. According to
Ellis' Complaint, “the assistant food
administrator” required Ellis and others to work in
this area this area, despite it being shut down for
maintenance, “bombing for (rat) infestation, and faulty
wiring.” (ECF No. 1, at 4).
avers in his Complaint that “when we entered the
kitchen area we immediately started complaining about
smelling gas to Food Administrator Paxton.
complaints were ignored . . . .” Id. at 5.
According to Ellis, he was placing a tray inside of a warming
box when [all sic in original]
a quiet flash of light hot fire that hit me Robert Ellis
#09812-042 directly in the face, burning away my eye lids as
well as my eye brows blinding me momentarily. Burned the hair
off of my right arm. Burned my beard to the point that I had
to cut it off. This explosion caused me to be thrown over a
table this caused my lower back to be twisted to the point
that I have back spasms all the time, I can't sit for
long periods of time. The flash from the gas explosion left
me Robert Ellis # 09812-042 with permanent blurred vision at
night when I go outside into the light I see rainbows
everywhere, my vision is not the same. My eyes are ruined for
life. My back injury is permanent also.
Id. at 6.
submitted his Complaint on a form intended for prisoners
filing a complaint pursuant to 42 U.S.C. § 1983. After
reviewing Ellis' Complaint, the undersigned ordered Ellis
to clarify whether he was seeking damages for a
constitutional violation. Ellis was informed that, if so, the
proper vehicle for seeking damages for a constitutional
violation by a federal agent is Bivens v. Six
Unknown Agents of Fed. Bureau of Narcotics, 403
U.S. 388, 397 (1971). Ellis was ordered to file a written
response informing the Court whether he was “pursuing
this action as a Bivens Complaint or as some other
type of federal civil suit”. (ECF No. 8, at 2). If
Ellis intended to pursue a Bivens Complaint, his
written response was required to “specifically state
how Defendant Nash violated Plaintiff's constitutional
Ellis was not pursuing a Bivens Complaint, his
written response was required to “identify how this
Court has jurisdiction over this matter and why Plaintiff is
entitled to relief from Defendant Nash . . . .”
responded to the Court's Order by filing a “Motion
to Clarify Complaint as Bivens Action.” (ECF
No. 1, at 4). Ellis averred that he was alleging a
constitutional violation pursuant to Bivens, namely
that [all sic in original]
Plaintiff was injured while in Warden Nash custody. There was
a gas shut off valve that exploded in the Plaintiff face
causing burns to the eye's and blowing the plaintiff over
a table 213causing lower back injury.
The Plaintiff Robert Ellis constitutional rights was violated
when Miss Nash failed to protect this Plaintiff after several
work orders of inmates and staff complaints of smelling gas.
(ECF No. 9, at 1).
August 17, 2018, Warden Nash filed the instant Motion to
Dismiss or, in the Alternative, for Summary Judgment (ECF No.
19), arguing as an initial matter that Ellis did not allege a
failure to protect claim during the administrative process.
Warden Nash alleges that Ellis has not stated a claim against
her because Ellis does not allege that she was personally
involved in the events underlying his Complaint. Warden Nash
asserts that she is entitled to qualified immunity under the
facts as alleged.
response to Warden Nash's Motion to Dismiss or for
Summary Judgment, Ellis filed a two-page motion entitled
“Petitioner Motion to Move Forward or, in the
Alternative, for Summary Judgment” (ECF No. 28) and a
one-page “Memorandum in Support of Motion to Amend in
Order to State a Claim in Which Relief Can be Granted Under
the Bivens Action” (ECF No. 29). Ellis maintains that
he exhausted administrative remedies and “used what was
available to him at the time every step available.”
(ECF No. 28, at 1). Ellis concludes, without analysis, ...