United States District Court, S.D. Mississippi, Northern Division
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND
RECOMMENDATION , GRANTING DEFENDANTS' MOTION  FOR
SUMMARY JUDGMENT, AND DISMISSING PLAINTIFF'S CLAIMS
SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE.
THE COURT are Defendant's Motion  for Summary
Judgment for Failure to Exhaust Administrative Remedies and
United States Magistrate Judge John C. Gargiulo's Report
and Recommendation , entered in this case on January 18,
2019. The Magistrate Judge recommended that Defendants'
Motion  for Summary Judgment be granted for failure to
exhaust administrative remedies. After thoroughly reviewing
the Magistrate Judge's Report and Recommendation ,
Defendants' Motion  for Summary Judgment, the record,
and relevant legal authority, the Court finds that the
Magistrate Judge's Report and Recommendation  should
be adopted as the finding of the Court, Defendant's
Motion  should be granted, and Plaintiff's claims
should be dismissed without prejudice.
Thomas Edward Campbell (“Plaintiff” or
“Campbell”) filed a Complaint  pursuant to 42
U.S.C. §1983 in this Court on December 5, 2017. At that
time, Plaintiff was incarcerated at the East Mississippi
Correctional Facility (“EMCF”) in Meridian,
Mississippi. Compl.  at 1. Plaintiff brought suit
against Officer Steven Wheeler, Lieutenant Ashley Ray, Brady
Sistrunk, Lynette Benten, Warden Norris Hogan, and the
Management & Training Corporation (collectively
“Defendants”). Order, March 30, 2018. Plaintiff
alleged that Defendants violated his constitutional rights
when they failed to protect him from several altercations
between him and other inmates that occurred at EMCF in May
and July of 2017. Compl.  at 4-12. Plaintiff avers that he
completed the Administrative Remedy Program
(“ARP”) regarding the claims in his Complaint 
and states that he requested the claims be investigated.
Compl.  at 2.
August 7, 2018, Defendants filed a Motion  for Summary
Judgment based on Plaintiff's Failure to Exhaust
Administrative Remedies. Mot. ; Mem. in Support .
Defendants assert that Plaintiff did not exhaust any of his
claims. In support of their Motion , Defendants attach
the ARP record of grievances for Plaintiff and an affidavit
of Tina Bolden, the ARP Coordinator. Mem. in Support ;
Bolden Aff. [25-1]. Ms. Bolden summarizes the ARP grievances
Plaintiff filed since January 2017 and explains that the ARPs
Plaintiff complains of in this case were submitted but
rejected due to a backlog of more than ten grievances already
submitted by Plaintiff. Bolden Aff. [25-1]. On September 11,
2018, Plaintiff filed a Response  to Defendants'
Motion , arguing that his grievances should have been
processed despite the backlog. Resp. .
January 18, 2019, the Magistrate Judge entered his Report and
Recommendation , recommending that the Court grant
Defendants' Motion  and dismiss Plaintiff's suit
without prejudice. The Report and Recommendation  was
mailed to Plaintiff's address of record on January 18,
2019, return receipt requested. Staff Note, Jan. 18, 2019. On
January 24, 2019, Plaintiff filed a Change of Address ,
and the Court re-mailed the Report and Recommendation  to
his new address of record with return receipt requested,
Staff Note, Jan. 25, 2019. The Report and Recommendation 
mailed to the new address on January 25, 2019, was Returned
as Undeliverable  on February 25, 2019. Plaintiff has not
submitted any objections to the Report and Recommendation
, and the time for doing so has expired.
no party has objected to a magistrate judge's proposed
findings of fact and recommendation, the Court need not
conduct a de novo review of it. 28 U.S.C. § 636(b)(1)
(“[A] judge of the court shall make a de novo
determination of those portions of the report or specified
proposed findings and recommendations to which objection is
made.”). In such cases, the Court applies the
“clearly erroneous, abuse of discretion and contrary to
law” standard of review. United States v.
Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989).
Mississippi Department of Corrections' ARP backlogging
procedure does not excuse a prisoner's failure to exhaust
his administrative remedies. See, e.g., Thomas v.
Prator, 172 Fed.Appx. 602 (5th Cir. 2006) (dismissing
appeal where plaintiff failed to exhaust administrative
remedies because abuse of procedure resulted in a backlog of
unanswered grievances). Plaintiff admits that he did not
complete the ARP process regarding his claims and only argues
that his grievances should have been processed despite the
backlog. Resp. . As such, Plaintiff has failed to exhaust
conducted the required review, the Court concludes that the
Magistrate Judge thoroughly considered all issues and that
the Report and Recommendation  is neither clearly
erroneous nor contrary to law. The Report and Recommendation
should be adopted as the opinion of the Court.
Court finds that the Magistrate Judge properly recommended
that Defendants' Motion  for Summary Judgment for
Failure to Exhaust Administrative Remedies be granted and
Plaintiff Thomas Edward Campbell's suit be dismissed. The
Report and Recommendation  will be adopted as the opinion
of the Court.
IS, THEREFORE, ORDERED AND ADJUDGED that, the
Magistrate Judge's Report and Recommendation  entered
in this case on January 18, ...