United States District Court, S.D. Mississippi, Southern Division
REPORT AND RECOMMENDATION
C. GARGIULO UNITED STATES MAGISTRATE JUDGE.
THE COURT are the following Motions: a Motion for Summary
Judgment (ECF No. 31) filed by Defendant Gia McLeod and a
Motion for Summary Judgment (ECF No. 33) filed by Defendants
Bobby Fairley, Terry Rogers, and Eric Richard. Both Motions
allege that Newsome has not exhausted his available
administrative remedies. Having considered the submissions of
the parties, the record, and relevant legal authority, the
Undersigned United States Magistrate Judge recommends that
McLeod's Motion for Summary Judgment (ECF No. 31) be
granted and Fairley, Rogers, and Richard's Motion for
Summary Judgment (ECF No. 33) be granted in part and denied
in part. However, the Undersigned also finds that
Newsome's remaining claims are without merit and
therefore recommends that this case be dismissed in its
is a postconviction inmate in the custody of the Mississippi
Department of Corrections (MDOC), currently housed at the
South Mississippi Correctional Institute (SMCI) in
Leakesville, Mississippi. However, most of his claims relate
to events that allegedly occurred while he was housed at the
George- Greene County Regional Correctional Facility (George
County) in Lucedale, Mississippi. Plaintiff filed his initial
Complaint (ECF No. 1-1) in the Circuit Court of Greene
County, Mississippi on August 30, 2017. Defendants Fairley,
Rogers, and Richard removed the case to this Court on October
4, 2017 (ECF No. 1), and Defendants McLeod and Eugene
Wigelsworth joined in the removal (ECF No. 3). Thereafter, on
October 19, 2017, Newsome filed an Amended Complaint (ECF No.
5) against the five Defendants.
seeks damages and injunctive relief from Fairley, the Warden
at George County; Rogers, the Facility Administrative
Assistant and “Inmate Legal Assistant Program
Designee” at George County; Richard, the Chaplain at
George County; McLeod, the Inmate Legal Assistance Program
(ILAP) Director for MDOC; and Wigelsworth, the Chaplaincy
Department Director for MDOC (ECF No. 5). Newsome's
claims can be broken down into three categories.
he claims he was denied religious accommodations in violation
of the First Amendment's Free Exercise Clause, the
Religious Land Use and Institutionalized Persons Act
(RLUIPA), and the Religious Freedom Restoration Act (RFRA).
Newsome states that he is a member of the Natsarim Faith and
contends he was denied a yeast free diet during Passover, the
right of immersion baptism, and religious counseling. Second,
he contends that his right to access the courts was denied
due to the inadequate law library and the confiscation,
misappropriation or destruction of his legal documents.
Finally, Newsome contends that as a result of his attempts to
exercise his First Amendment rights and to utilize the prison
grievance system, he was retaliated against. He contends the
Defendants removed him from educational and rehabilitative
services at George County and then transferred him to SMCI in
retaliation (ECF No. 5).
appears that Newsome is suing Fairley, Richard, and
Wigelsworth for the denial of religious accommodations;
Rogers and McLeod for the denial of access to the courts; and
Fairley, Rogers, Richard and McLeod for retaliation.
Currently pending before the Court are two Motions for
Summary Judgment based on failure to exhaust administrative
remedies. McLeod alleges that Newsome failed to exhaust his
administrative remedies with respect to the retaliatory
transfer claim. The Motion itself does not address
Newsome's other claims for retaliation or his claim for
denial of court access (ECF No. 31). However, the attached
affidavit of Richard Pennington, the Director of the
Administrative Remedy Program for MDOC, states that Newsome
did not exhaust any retaliation claims, claims of inadequate
legal assistance, or claims related to the confiscation or
destruction of documents (ECF No. 31-1). Fairley, Rogers, and
Richard allege that Newsome failed to exhaust administrative
remedies with respect to all of his claims against them (ECF
Motions for Summary Judgment Based on Failure to Exhaust
judgment is mandated “after adequate time for discovery
and upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential
to that party's case, and on which that party will bear
the burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Fed.R.Civ.P. 56(c). A
motion for summary judgment shall be granted “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). When evaluating a
motion for summary judgment, the Court must construe
“all facts and inferences in the light most favorable
to the non-moving party.” McFaul v.
Valenzuela, 684 F.3d 564, 571 (5th Cir. 2012) (quoting
Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir.
movant “bears the initial responsibility of informing
the district court of the basis for its motion, and
identifying those portions of ‘the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any,' which it
believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp., 477 U.S. at 323
(quoting Fed.R.Civ.P. 56(c)). If the movant carries this
burden, the burden shifts to the non-moving party to show
that summary judgment should not be granted. Id. at
324. “The non-movant must go beyond the pleadings and
come forward with specific facts indicating a genuine issue
for trial to avoid summary judgment.” Abarca v.
Metro Transit Auth., 404 F.3d 938, 940 (5th Cir. 2005)
(citing Celotex Corp., 477 U.S. at 324). In the
absence of any proof, the Court will not assume that the
Plaintiff “could or would prove the necessary
facts.” Little v. Liquid Air Corp., 37 F.3d
1069, 1075 (5th Cir. 1994) (citing Lujan v. Nat'l
Wildlife Fed'n, 497 U.S. 871, 888 (1990)).
Newsome is a prisoner pursuing a civil action seeking redress
from government employees, the Prison Litigation Reform Act
(PLRA) applies and requires that this case be screened. The
PLRA provides that “the court shall identify cognizable
claims or dismiss the complaint, or any portion of the
complaint, if the complaint (1) is frivolous, malicious, or
fails to state a claim upon which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune from
such relief.” 28 U.S.C. § 1915A(b); see
also 28 U.S.C. § 1915(e)(2)(B). Accordingly, the
statute “accords judges not only the authority to
dismiss a claim based on an indisputably meritless legal
theory, but also the unusual power to pierce the veil of the
complaint's factual allegations and dismiss those claims
whose factual contentions are clearly baseless.”
Denton v. Hernandez, 504 U.S. 25, 32 (1992) (quoting
Neitzke v. Williams, 490 U.S. 319, 327 (1989)).
PLRA also requires prisoners to exhaust available
administrative remedies before filing a lawsuit. 42 U.S.C.
§ 1997e(a). This exhaustion requirement protects
administrative agency authority, promotes efficiency, and
produces “a useful record for subsequent judicial
consideration.” Woodford v. Ngo, 548 U.S. 81,
89 (2006) (quoting McCarthy v. Madigan, 503 U.S.
140, 145 (1992)). A prisoner's failure to exhaust
available administrative remedies undermines these purposes.
The benefits of exhaustion can be realized only if the prison
grievance system is given a fair opportunity to consider the
grievance. The prison grievance system will not have such an
opportunity unless the grievant complies with the
system's critical procedural rules. A prisoner who does
not want to participate in the prison grievance system will
have little incentive to ...