United States District Court, S.D. Mississippi, Southern Division
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT BASED ON FAILURE TO EXHAUST
C. GARGIULO, UNITED STATES MAGISTRATE JUDGE
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. 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
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.
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.
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.
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).
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].
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
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 ...