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Stogner v. Beasley

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

July 26, 2019

EVERETT STOGNER PLAINTIFF
v.
ANTHONY BEASLEY Captain DEFENDANT

          MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BASED ON FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES

          JOHN C. GARGIULO, UNITED STATES MAGISTRATE JUDGE

         BEFORE THE COURT is a civil rights Complaint filed under 42 U.S.C. § 1983 by Plaintiff Everett Stogner, a postconviction inmate in the custody of the Mississippi Department of Corrections (MDOC) who claims that Defendant, Captain Anthony Beasley, a correctional officer, used excessive force against him. An omnibus hearing that also operated as a Spears hearing was held on February 19, 2019.[1] Defendant Beasley has filed a Motion for Summary Judgment Based on Failure to Exhaust Administrative Remedies (ECF No. 27) and supplemented his Motion for Summary Judgment with two affidavits. (ECF Nos. 31, 32). Plaintiff has filed a Response (ECF No. 34). Defendant did not file a rebuttal.

         Having considered the submissions of the parties, the record, and relevant law, the Court concludes that Defendant's Motion for Summary Judgment must be GRANTED because Plaintiff did not exhaust his claim for excessive force through MDOC's administrative grievance process before filing this suit.

         BACKGROUND

         Plaintiff Everett Stogner's suit concerns events allegedly occurring at the South Mississippi Correctional Institution (SMCI) in Leakesville, Mississippi, where he is housed. Plaintiff claims that Captain Anthony Beasley, a correctional officer, used excessive force against him, while Plaintiff was having a seizure. Plaintiff initially advanced a due process claim against Defendant Beasley, and advanced claims against Lucy Martin and Andrew Mills. The due process claim against Beasley and all claims against Martin and Mills have been dismissed. (ECF No. 18). The only remaining claim is Plaintiff's claim for excessive force against Beasley.

         Plaintiff alleges that on March 14, 2018, he was being treated for a violent seizure in the medical unit. (ECF No. 1, at 6-7). During the seizure, Beasley allegedly hit Plaintiff in the face, threw him to the floor, and kicked him. Id. at 7. Beasley then issued Plaintiff two Rule Violation Reports (“RVRs”). Id. One charged Plaintiff with refusing to obey a staff order, and the other charged Plaintiff with assault on Beasley. (ECF No. 16-1, at 1-2). Plaintiff contends that Beasley issued the RVRs in order to give an apparent justification for his use of force.

         Plaintiff was found guilty of both RVRs. (ECF No. 1, at 7-8). Plaintiff was punished with a loss of all privileges for a month on the first RVR and a loss of canteen and visitation privileges for eighteen months on the second RVR. (ECF No. 16-1, at 1-2). Plaintiff was placed in lockdown from about March 17, 2018, through approximately April 14, 2018. (ECF No. 16, at 2; ECF No. 1, at 7).

         Plaintiff filed a grievance with MDOC's Administrative Remedy Program (ARP) that was received on March 29, 2018. Plaintiff requested to be moved from lockdown, stating:

I am asking to be moved from SMCI back to Rankin [illegible] I was housed there for 6 yrs. But I can down here to SMCI to see the Eye Droctor at Southern Eye I him on 3-13-18. But am a bad seizure patince and I had several bad seizure on Wed 3-14-18. They said that they had to send me off Grounds. But I woke latter that night in the clinic infirmy and they gave (2) RVRs (1) stateing I assaulted Capt. Beasley (1) disobeying orders I did not know anything at all about this until they woke me up to sign those RVRs. I am asking that you'll would do something about this matter. Because they got me in lock-down. When I got a paper from a Dr. William Braizer stating where I need to be in a safe place where someone can see me at all times. I do not disrect any officers I show all officers respect. They are the ones that help look at on my medical but in lock-down I am by myself. I have found myself in the floor in this cell and it has been reported to family. Please help with this matter. Where want have to go any further please

(ECF No. 32, at 1) [all sic in original].

         By the time the grievance was responded to on April 4, 2018, Plaintiff had been released from lockdown. Id. at 3. Plaintiff received an ARP response asking if he wanted to change his request or cancel it. Id. On April 19, 2018, ARP received a grievance from Plaintiff appealing the RVRs issued by Beasley on March 14, 2018. The ARP provided

PLAINTIFF'S MEDICAL RECORDS REVEAL HE HAS HISTORY OF VIOLENT SEIZURES HE KICKS SWINGS HIS ARMS DURING SEIZURES HAS NO KNOWLEDGE OF HITTING BEASLEY 3-14-2018 HE WAS TAKEN TO HOSPITAL ON SEVERE SEIZURE CONDITION HE'S BLIND IN ONE EYE RIGHT AND HAS CATERACT IN LEFT EYE SUFFERS TEMPORARY INSANITY DURING SEIZURES DOES NOT SEE OR HEAR WHO'S TALKING OR HANDLING HIM. HE IS NOT RESPONSIBLE FOR HIS ACTIONS IN SUCH STATE SEE U.S. V. MOTT 72 MJ 319 (2013). BOTH RVR'S VIOLATE AMERICANS WITH DISABILITIES ACT LAWS 42 U.S.C.A. § 12101. 28 C.F.R. § 35.134 AS REPRISALS DUE TO STOGNER'S DISABILITIES SEIZURE INSANITY BOTH VIOLATE DUE PROCESS 28 DAYS ELAPSED BETWEEN INCIDENT AND HEARING AND ARE TIME BARRED IN ADDITION TO STAFF FAILURE TO INVESTIGATE MEDICAL RECORDS VIOLATING U.S. V. GEORGIA 546 U.S. 151 (2006) FARID V. GOORD 200 F.SUPP. 2D 220 (N.D.N.Y. 2002) SUBJECTING PLAINTIFF TO CRUEL AND UNUSUAL PUNISHMENT AND ADA DISCRIMINATION STAFF REPORT IS INADEQUATE STANDING ALONE TO IMPOSE SANCTIONS.

(ARP # SMCI-18-0521, ECF No. 27-1, at 4) [all sic in original].

         On June 11, 2018, a response form entitled “First Step Response Form for RVRs” was issued, denying Plaintiff's request to overturn the RVRs. (ECF No. 27-1, at 9). The Response provided: “After reviewing the facts concerning this RVR, I find that policy and procedures were followed in this case. I agree with the decision ...


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