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Campbell v. Wheeler

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

March 18, 2019

THOMAS EDWARD CAMPBELL PLAINTIFF
v.
OFFICER STEVEN WHEELER et al. DEFENDANTS

          REPORT AND RECOMMENDATION

          JOHN C. GARGIULO UNITED STATES MAGISTRATE JUDGE

         BEFORE 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.

         BACKGROUND

         Plaintiff 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 time.[1]

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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.” Id.

         Plaintiff 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.

         Plaintiff 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 unit. Id.

         Plaintiff 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 unit. Id.

         On 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.

         Bolden 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.

         Plaintiff 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. ...


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