Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ellis v. Nash

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

January 15, 2019

ROBERT ELLIS, JR. PLAINTIFF
v.
WARDEN CHERON Y. NASH DEFENDANT

          REPORT AND RECOMMENDATION

          JOHN C. GARGIULO UNITED STATES MAGISTRATE JUDGE

         BEFORE 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 “Petitioner Motion to Move Forward or, in the Alternative, for Summary Judgment” (ECF No. 28) and a “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).

         Having 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.

         BACKGROUND

         On 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).

         Ellis avers in his Complaint that “when we entered the kitchen area we immediately started complaining about smelling gas to Food Administrator Paxton.

         These 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.

         Ellis 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 rights.” Id.

         If 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 . . . .” Id.

         Ellis 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).

         On 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.

         In 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, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.