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.

Newsome v. Fairley

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

March 12, 2019

ANTHONY MELVIN NEWSOME PLAINTIFF
v.
BOBBY FAIRLEY, et al. DEFENDANTS

          ORDER OVERRULING PLAINTIFF'S [47] OBJECTION; ADOPTING IN PART AND MODIFYING IN PART MAGISTRATE JUDGE'S [44] REPORT AND RECOMMENDATION; GRANTING DEFENDANT GIA MCLEOD'S [31] MOTION FOR SUMMARY JUDGMENT; GRANTING IN PART AND DENYING IN PART DEFENDANTS BOBBY FAIRLEY, TERRY ROGERS, AND ERIC RICHARD'S [33] MOTION FOR SUMMARY JUDGMENT; AND DISMISSING CERTAIN OF PLAINTIFF'S CLAIMS

          HALIL SULEYMAN OZERDEN, UNITED STATES DISTRICT JUDGE

         BEFORE THE COURT is Plaintiff Anthony Melvin Newsome's Objection [47] to the Report and Recommendation [44] of United States Magistrate Judge John C. Gargiulo, entered in this case on January 28, 2019, regarding Defendant's Motions [31], [33] for Summary Judgment. Based upon a review of the parties' submissions, the record, and relevant legal authority, the Magistrate Judge recommended that Defendant Gia McLeod's Motion [31] for Summary Judgment be granted, that Defendants Bobby Fairley, Terry Rogers, and Eric Richard's Motion [33] for Summary Judgment be granted in part and denied in part, and that Plaintiff's remaining claims in this case be dismissed in their entirety. R. & R. [44] at 16.

         After thoroughly reviewing Plaintiff's Objection [47], the Magistrate Judge's Report and Recommendation [44], the record, and relevant legal authority, the Court finds that Plaintiff's Objection [47] should be overruled and that the Magistrate Judge's Report and Recommendation [37] should be adopted in part and modified in part.

         Defendant Gia McLeod's Motion [31] for Summary Judgment should be granted, and Defendants Bobby Fairley, Terry Rogers, and Eric Richard's Motion [33] for Summary Judgment should be granted in part and denied in part. Plaintiff's retaliatory-transfer claim against Defendant Gia McLeod, all of his claims against Defendants Bobby Fairley and Terry Rogers, and his retaliation claims against Defendant Eric Richard will be dismissed without prejudice for failure to exhaust administrative remedies. Plaintiff's remaining religious accommodation claims against Defendants Eric Richard and Eugene Wigglesworth and his access-to-courts and retaliation claims against Defendant Gia McLeod for allegedly removing Plaintiff from educational and rehabilitative programs will proceed.

         I. BACKGROUND

         Plaintiff Anthony Melvin Newsome (“Plaintiff” or “Newsome”) filed a Complaint [1-1] in the Circuit Court of Greene County, Mississippi, on August 30, 2017. Since the time he filed his Complaint [1-1], Plaintiff has been incarcerated with the Mississippi Department of Corrections (“MDOC”) at the South Mississippi Correctional Institution (“SMCI”) in Leakesville, Mississippi. See Compl. [1-1] at 13. Plaintiff's claims pertain to conduct that purportedly occurred while Plaintiff was incarcerated at SMCI, and during his earlier incarceration at a different facility, the George County Regional Correctional Facility (“GCRCF”) located in Lucedale, Mississippi. Plaintiff states that he was incarcerated at GCRCF from 2015 until he was transferred to SMCI on August 15, 2017. See Pl.'s Decl. [10-1] at 2; Am. Compl. [5] at 5.

         A. Plaintiff's claims

         The original Complaint [1-1] advanced claims against Defendants Bobby Fairley, Terry Rogers, Eric Richard, Gia McLeod, and Eugene Wigglesworth[1] for alleged violations of: (1) the First, Fourth, Eighth, and Fourteenth Amendments to the United States Constitution pursuant to 42 U.S.C. §§ 1983, 1985, and 1986; (2) the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc, et seq. (“RLUIPA”); (3) the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb, et seq. (“RFRA”); and (4) the Rehabilitation Act, 29 U.S.C. § 701, et seq. Id. at 1, 3-4.

         On October 4, 2017, Defendants Fairley, Rogers, and Richard removed the case to this Court on the basis of federal question jurisdiction pursuant to 28 U.S.C. § 1331, see Notice of Removal [1] at 1-2, and Defendants McLeod and Wigglesworth joined in the removal, see Joinder [3] at 1. Plaintiff then filed an Amended Complaint [5], advancing the same claims against Defendants Fairley, Rogers, Richard, McLeod, and Wigglesworth. Based upon the factual allegations contained in Plaintiff's pleadings, it appears that he is pursuing claims against Fairley, Richard, and Wigglesworth for denial of religious accommodation, against Rogers and McLeod for denial of access to courts, and against Fairley, Rogers, Richard, and McLeod for retaliation. See Am. Compl. [5] at 34-39.

         Plaintiff and Defendants Fairley, Rogers, and Richard filed Motions [7], [22] requesting a Spears hearing. See Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985). On May 11, 2018, the Magistrate Judge denied the Motions and indicated that the Court would first address, as a threshold issue, whether Plaintiff's claims had been properly exhausted. See Order [29] at 1-3. The Magistrate Judge set a June 13, 2018, deadline for Defendants to file motions based upon Plaintiff's failure to exhaust administrative remedies.

         B. Defendants' Motions for Summary Judgment

         On June 12, 2018, Defendant McLeod filed a Motion [31] for Summary Judgment, arguing that Plaintiff's claims against her should be dismissed for failure to exhaust administrative remedies. See Mot. [31] at 1-2. McLeod provided the Court with the Declaration of Richard Pennington (“Pennington”), the Director of the Administrative Remedy Program (“ARP”) for the Mississippi Department of Corrections (“MDOC”). According to Pennington, “[t]here is no record that Offender Newsome has properly submitted any grievances alleging that Gia McLeod wronged or harmed him in any way.” Decl. of Pennington [31-1] at 1.

         Pennington also submitted a Grievance Detail Report that listed Plaintiff's grievances on record from 2008 until June 11, 2018, as well as an unsuccessfully attempted grievance dated February 28, 2013. This particular grievance was returned to Plaintiff with instructions on how to correct and resubmit it. According to Pennington, “ARP has no record of Newsome correctly resubmitting this complaint.” Id.

         On June 13, 2018, Defendants Bobby Fairley, Terry Rogers, and Eric Richard filed a Motion [33] for Summary Judgment, also seeking dismissal based upon Plaintiff's purported failure to exhaust administrative remedies. See Mot. [33] at 1-2. Defendant Fairley submitted an Affidavit [34-2] stating that while Plaintiff filed grievances concerning the complained-of matters, he failed to exhaust the administrative remedies process because he did not file a Step 3 appeal, even though Plaintiff was aware of the existence of the administrative remedies program at GCRCF and its procedures. Aff. of Fairley [34-2] at 1.

         C. The Magistrate Judge's Report and Recommendation [44]

         On January 28, 2019, the Magistrate Judge entered a Report and Recommendation [44]. The Magistrate Judge determined that Plaintiff had not properly exhausted his retaliatory-transfer claim against McLeod, such that this claim should be dismissed. See R. & R. [44] at 6-8. Because McLeod's Motion [31] for Summary Judgment only referred to Plaintiff's failure to exhaust that one retaliatory-transfer claim, the Magistrate Judge ...


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.