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Moore v. Stevens

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

April 12, 2019

DEVANTAE A. MOORE #211724 PLAINTIFF
v.
GLORIA STEVENS and RANDY JOHNSON DEFENDANTS

          REPORT AND RECOMMENDATION

          Michael T. Parker United States Magistrate Judge.

         THIS MATTER is before the Court on Defendants' Motion [28] for Summary Judgment. Having carefully considered the Motion and the applicable law, the undersigned recommends that the Motion [28] be granted.

         FACTUAL BACKGROUND

         Plaintiff 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. [1]. Plaintiff filed this lawsuit on August 22, 2017 alleging constitutional violations relating to the conditions of his confinement and denial of medical care.[1] Specifically, Plaintiff claims “black mold” was growing in the showers and the air vents of the jail. Order [24] 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. [28], Ex. A at 13.

         Plaintiff 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 [24] at 2. Plaintiff claims that his breathing issues continue even though he is no longer housed at JCJ. Id.

         Defendants filed their Motion [28] 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 consideration.

         ANALYSIS

         Summary Judgment Standard

         The undersigned has considered the Motion [28] 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).

         Summary 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 Cir. 1980)).

         Failure to Exhaust

         Defendants 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. [28], 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.

         It is 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. [28], 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. [28], 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.

         The 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 ...


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