United States District Court, S.D. Mississippi, Northern Division
REPORT AND RECOMMENDATION
C. GARGIULO UNITED STATES MAGISTRATE JUDGE
THE COURT is the Motion for Summary Judgment Based on
Plaintiff's Failure to Exhaust Administrative Remedies
(ECF No. 25), filed by Defendants Steven Wheeler, Ashley Ray,
Lynette Benton, Norris Hogans, and Management & Training
Corporation (MTC). Plaintiff Thomas Edward Campbell, a
pro se prisoner proceeding in forma
pauperis, has filed a Response (ECF No. 28). Having
considered the submissions of the parties, the record, and
relevant law, the undersigned recommends that Defendants'
Motion for Summary Judgment Based on Plaintiff's Failure
to Exhaust Administrative Remedies be GRANTED and
Plaintiff's claims dismissed without prejudice.
is a postconviction inmate in the custody of the Mississippi
Department of Corrections (MDOC) serving a sentence of twelve
years for methamphetamine sales and three years for sexual
battery. See Campbell v. Fisher, 3:16-cv-130-HTW-LRA
(S.D.Miss. Nov. 29, 2016) (dismissing Plaintiff's
petition for writ of habeas corpus relief). Plaintiff has
filed ten civil rights lawsuits in this Court while
incarcerated, with seven cases pending at this
filed this suit on December 5, 2017, alleging that his
constitutional rights were violated during his incarceration
at East Mississippi Correctional Facility (EMCF) in Meridian,
Mississippi. Plaintiff's Complaint references several
altercations involving Plaintiff and other inmates in his
housing unit in May 2017 and July 2017. Plaintiff charges
Defendants with failing to protect him from harm.
alleges that on May 10, 2017, he was assaulted and robbed of
certain personal belongings by inmate Carlos Moody and
Moody's cell mate. (ECF No. 1, at 4). Plaintiff claims
that Officer Wheeler and Sergeant Ray left him unprotected,
and Investigator Sistrunk did not fulfill his promise to look
at the camera footage. Id.
alleges that on May 12, 2017, or May 13, 2017, inmates Billy
Lester and Tony Pierce drug him out of his cell and
“tried to kick me to sleep in front of my cell.”
claims that on May 17, 2017, Lester and two other inmates,
William Chunn and Otis Taylor, entered his cell after 4 p.m.
count while he was sleeping. Id. at 4-5. Plaintiff
alleges that Lester “beat me upside the head until I
gave him the combination to my locker and bruised my head and
blacked my left eye.” Id. Plaintiff maintains
that the inmates took the remainder of his personal
belongings that were not taken the week before. Id.
Plaintiff claims that when Officer Wheeler and Sergeant Ray
came on the zone shortly after to deliver dinner trays,
Plaintiff showed them his injuries and the destruction of his
legal work. Id. Plaintiff submits that he asked both
officers to check the security cameras. Id.
claims that on May 18, 2017, he saw Nurse Townsend regarding
bruises on his head and a black eye. Id. at 6.
Plaintiff asked Nurse Townsend for help getting the inmates
who assaulted him moved. Id. Nurse Townsend went to
the officers in charge, and the inmates were moved to another
claims that on July 9, 2017, an inmate named
“Peanut” came into his cell while Plaintiff was
eating lunch and assaulted him with a lock. Id. at
7. Plaintiff claims that he had never had any prior problems
with Peanut. Id. Plaintiff asserts that the assault
by Peanut occurred not long after inmate Jerome Kelly was
moved to the housing unit. Id. Plaintiff maintains
that he previously red-tagged Kelly, but Unit Manager Benton
allowed Kelly to be assigned to his zone anyway. Id.
at 6-7. Plaintiff claims Peanut and Kelly are both gang
members. Id. Plaintiff states that he was medically
evaluated after the incident and reassigned to a different
August 7, 2018, Defendants filed the instant Motion for
Summary Judgment Based on Plaintiff's Failure to Exhaust
Administrative Remedies. Accompanying the Motion, Defendants
submitted the Affidavit of Tina Bolden, who is employed by
MTC as the Administrative Remedy Program (ARP) Coordinator at
EMCF. (ECF No. 25-1). Bolden oversees and manages the
processing of inmate grievances. Id. at 1. According
to Bolden, Plaintiff “has been a frequent filer in the
ARP process throughout his incarceration at EMCF. His ARP
records are voluminous.” Id. at 2. In her
affidavit, Bolden summarizes Plaintiff's grievances
submitted through the ARP process since the beginning of
2017. Id. at 2-8. Plaintiff's grievance records
since 2017 are attached to Bolden's affidavit.
Id. at 10-172.
avers that Plaintiff did not file grievances through the ARP
process regarding any of the altercations that he now alleges
occurred in his housing unit in May 2017. (ECF No. 25-1, at
8; ECF No. 26, at 4). According to Bolden's Affidavit,
Plaintiff submitted four grievances between July 11, 2017,
and July 15, 2017, that were not accepted into the ARP
process and were returned to Plaintiff because Plaintiff
already had ten grievances pending in backlog. (ECF No. 25-1,
at 4-5). One of the returned grievances, dated July 12, 2017,
complained about Peanut striking Plaintiff with a lock in an
alleged incident occurring three days earlier. Id.
asserts that he attempted to file grievances regarding the
altercations in his Complaint, but they were returned to him
and not accepted because he had ten grievances already
pending in backlog. (ECF No. 1, at 6; ECF No. 28, at 3-4).
Plaintiff alleges that Bolden “allowed the kitchen to
hold one of my ARPs for over 4 months. Making it impossible
for me to exhaust my ARP's all the way through.”
(ECF No. 28, at 4). According to Bolden's Affidavit,
Plaintiff withdrew four grievances on July 13, 2018, that
were in backlog. ...