United States District Court, S.D. Mississippi, Eastern Division
DEVANTAE A. MOORE #211724 PLAINTIFF
GLORIA STEVENS and RANDY JOHNSON DEFENDANTS
REPORT AND RECOMMENDATION
Michael T. Parker United States Magistrate Judge.
MATTER is before the Court on Defendants' Motion  for
Summary Judgment. Having carefully considered the Motion and
the applicable law, the undersigned recommends that the
Motion  be granted.
Devante Moore, proceeding pro se and in forma
pauperis, was a pretrial detainee at the Jasper County
Jail (“JCJ”) when the events giving rise to this
lawsuit occurred. Comp. . Plaintiff filed this lawsuit on
August 22, 2017 alleging constitutional violations relating
to the conditions of his confinement and denial of medical
care. Specifically, Plaintiff claims
“black mold” was growing in the showers and the
air vents of the jail. Order  at 2. Plaintiff alleges
that he told Gloria Stevens about the mold issue, but she
only communicated the alleged problem to Sherriff Randy
Johnson. Plaintiff claims Defendant Jonson visited his cell
but stated the mold was just mildew and not black mold, as
Plaintiff claimed. Id. The substance was cleaned by
JCJ but returned in a few days. Mot. , Ex. A at 13.
further claims that the black mold exacerbated his
preexisting asthma issues. He allegedly told Defendant
Stevens he needed to see a doctor, but she did not provide
medical care and instead told him that it was the Mississippi
Department of Corrections' responsibility to provide him
medical care. Order  at 2. Plaintiff claims that his
breathing issues continue even though he is no longer housed
at JCJ. Id.
filed their Motion  for Summary Judgment on October 5,
2018. Plaintiff has not filed a response and the time to
reply has long since run. The matter is now ripe for
undersigned has considered the Motion  under the summary
judgment standard. “[S]ummary judgment is proper if the
pleadings, depositions, answers to interrogatories, and
admission on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of
law.” Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986). The Court must view the evidence in the light
most favorable to the non-moving party. Causey v. Sewell
Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir.
2004). If the moving party meets its burden, the
“nonmovant must go beyond the pleadings and designate
specific facts showing there is a genuine issue for
trial.” Little v. Liquid Air Corp., 37 F.3d
1069, 1075 (5th Cir. 1994).
judgment is proper “where a party fails to establish
the existence of an element essential to his case and on
which he bears the burden of proof.” Washington v.
Armstrong World Indus., Inc., 839 F.2d 1121, 1122 (5th
Cir. 1988). In the absence of proof, the Court does not
“assume that the nonmoving party could or would prove
the necessary facts.” Id. at 1075 (emphasis
omitted). “It is improper for the district court to
‘resolve factual disputes by weighing conflicting
evidence, … since it is the province of the jury to
assess the probative value of the evidence.'”
McDonald v. Entergy Operations, Inc., 2005 WL
2474701, at *3 (S.D.Miss. Apr. 29, 2005) (quoting
Kennett-Murray Corp. v. Bone, 622 F.2d 887, 892 (5th
argue that Plaintiff did not exhaust the administrative
remedies available to him before filing suit. Defendant
Stevens submitted her own affidavit along with the Motion for
Summary Judgment. See Mot. , Ex. D at 1-2.
Defendant Steven swears in her affidavit that “[i]n
2016 and 2017, Jasper County had an administrative remedy
program in place, by which inmates could submit written
complaints, referred to as grievances, regarding conditions
at the jail… Inmates receive a copy of this policy
upon being booked into the jail.” Id.
Defendants' position that Plaintiff did not avail himself
of the grievance system in place at JCJ. Defendants point to
the jail record submitted along with the Motion for Summary
Judgment. See Mot. , Ex. D. Plaintiff filed a
single grievance while at JCJ on August 22, 2017 asking that
the jail stop serving him peanut-butter sandwiches because
they made him sick. Id. at 4. Plaintiff testified at
his omnibus hearing that he filed a grievance related to the
mold, but this grievance is not in the record and no further
detail has been provided by Plaintiff. Mot. , Ex. A at
16. The record does not contain any grievance forms relating
to the alleged mold or the alleged denial of medical care for
which Plaintiff brought this lawsuit.
Prison Litigation Reform Act (“PLRA”) mandates
that prisoners exhaust all administrative remedies available
to them before filing suit. 42 U.S.C. § 1977e(a). The
exhaustion requirement of the PLRA applies to pre-trial
detainees, which Plaintiff was at the time of the alleged
injuries. Moore v. St. Tammany Parish Jail, 113 Fed.
App'x 585, 586 (5th Cir. 2004) (affirming the dismissal
of a pre-trial detainee's 42 U.S.C. § 1983 lawsuit
because he failed to exhaust the available administrative
remedies). “[F]ederal law forbids prisoner's from
bringing a § 1983 suit with respect to prison conditions
‘until such administrative remedies as are available
are exhausted.'” Porter v. Peterson, 747
Fed. App'x 247, 247 (5th Cir. 2019) (quoting 42 U.S.C.
§ 1997e(a)). “District courts have no discretion
to excuse a prisoner's ...