United States District Court, S.D. Mississippi, Northern Division
REPORT AND RECOMMENDATION
Keith Ball United States Magistrate Judge.
case is before the undersigned for Report and Recommendation
on Defendants' Motion for Summary Judgment based on
Failure to Exhaust Available Administrative Remedies .
Telford is an inmate in the custody of the Mississippi
Department of Corrections (“MDOC”) and is housed
at the Central Mississippi Correctional Facility
(“CMCF”). Telford is proceeding pro se
and in forma pauperis. He brings this suit pursuant
to 42 U.S.C. § 1983. He claims that since August 2017,
Defendants have denied him the use of cleaning supplies
necessary to maintain a hygienic cell. He alleges that he
wrote to each of the defendants concerning his lack of access
to cleaning supplies, but that Defendants ignored his
submitted a grievance complaining of the lack of cleaning
supplies on or about June 23, 2018. [13-1] at 3. His
grievance, however, was rejected by the Administrative Remedy
Program (“ARP”) screening officer, because
Telford wrote it not just on his own behalf, but on behalf of
other inmates as well. Id. at 2-3. According to
Defendants, Telford never resubmitted the grievance.
Id. at 1. They contend that as a result, Telford
failed to exhaust available administrative remedies prior to
filing his complaint. Telford submitted no response to
court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). An issue of fact is genuine if the
"'evidence is sufficient to permit a reasonable
factfinder to return a verdict for the nonmoving
party.'" Lemoine v. New Horizons Ranch and
Center, 174 F.3d 629, 633 (5th Cir. 1999)(quoting
Colston v. Barnhart, 146 F.3d 282, 284 (5th Cir.),
cert. denied, 525 U.S. 1054, (1998)). Issues of fact
are material if “resolution of the issues might affect
the outcome of the suit under governing law."
Lemoine, 174 F.3d at 633. The Court does not,
"however, in the absence of any proof, assume the
nonmoving [or opposing] party could or would prove the
necessary facts." Little v. Liquid Air Corp.,
37 F.3d 1069, 1075 (5th Cir. 1994)(en banc)(emphasis
omitted). Moreover, the non-moving party's burden to come
forward with "specific facts showing that there is a
genuine issue for trial, " Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986), is not satisfied by
"conclusory allegations" or by
"unsubstantiated assertions," or by only a
"scintilla" of evidence. Little, 37 F.3d
prisoner must exhaust available administrative remedies
before bringing a § 1983 action. Booth v.
Churner, 532 U.S. 731, 740 (2001); 42 U.S.C. §
1997e(a). The Prison Litigation Reform Act's exhaustion
requirement is mandatory and applies to all inmate suits
about prison life, whether they involve general circumstances
or particular episodes, and whether they allege excessive
force or some other wrong. See Porter v.
Nussle, 534 U.S. 516 (2002); Jones v. Bock, 549
U.S. 199, 199-200 (2007)(“There is no question that
exhaustion is mandatory under the PLRA. . . .”). When
examining the exhaustion requirement, the Fifth Circuit has
[d]istrict courts have no discretion to excuse a
prisoner's failure to properly exhaust the prison
grievance process before filing their complaint. It is
irrelevant whether exhaustion is achieved during the federal
proceeding. Pre-filing exhaustion is mandatory, and the case
must be dismissed if available administrative remedies were
Gonzales v. Seal, 702 F.3d 785, 788 (5th Cir. 2012).
Moreover, “[i]t is not enough to merely initiate the
grievance process or to put prison officials on notice of a
complaint; the grievance process must be carried through to
its conclusion.” Walker v. East Miss. Corr.
Facility, Civil Action No. 4:10-cv-111-LRA, 2013 WL
4833901 (S.D.Miss. Sept. 11, 2013)(citing Wright v.
Hollingsworth, 260 F.3d 357, 358 (5th Cir. 2001)(finding
that filing an initial grievance, without more, did not
equate to exhaustion)); see also Tompkins v.
Holman, Civil Action No. 3:12-cv-87-LRA, 2013 WL 1305580
(S.D.Miss. Mar. 26, 2013)(dismissing' 1983 complaint for
failure to exhaust administrative remedies when prisoner
filed a grievance, but did not complete the ARP grievance
before filing his lawsuit).
utilizes a two-step administrative remedy process. See
Jackson v. Hall, 763 Fed.Appx. 376, 377 (5th Cir. 2019).
The “process begins when an inmate first submits his
grievance in writing to the prison's Legal Claims
Adjudicator within thirty days of the incident.”
Huskey v. Fisher, Civil Action No. 1:17-cv-140-JMV,
2019 WL 1495275, at *3 (N.D. Miss. Apr. 4, 2019)(citing
Howard v. Epps, Civil Action No. 5:12-cv-61-KS-MTP,
2013 WL 2367880, at *2 (S.D.Miss. May 29, 2013)). “The
Adjudicator initially screens the grievance and determines
whether or not to accept it into the ARP process.”
Id. “The screening phase operates as a filter
- applied before the formal grievance process begins - to
remove procedurally defective or otherwise invalid
grievances.” Id. A “prisoner cannot
satisfy the exhaustion requirement by filing a procedurally
defective grievance.” Id. (citing Woodford
v. Ngo, 548 U.S. 81, 94, n. 4 (2006)). “Hence,
rejection of a grievance during the screening phase
terminates the grievance - and does not count as exhaustion
of the grievance process.” Id. “[I]f the
defects in the original grievance were minor
(“technical” or “matters of form”) an
inmate may submit a corrected grievance within five days of
the rejection.” Id. at *3-4 (citing the MDOC
submitted his grievance as to the lack of cleaning supplies
on behalf of himself and the other inmates housed on his
zone. [13-1] at 3. This was a violation of MDOC's ARP
rules, as it pertained to multiple alleged violations by MDOC
personnel. See Chapter VIII, Section V of MDOC
(last visited July 23, 2019). CMCF's ARP adjudicator
rejected Telford's grievance on or about June 27, 2018.
[13-1] at 2. The adjudicator described the reason for the
rejection as follows: “The Administrative Remedy
Program does not accept petitions or filing on behalf of
another inmate. A single complaint must be filed by each
individual inmate.” Id.
Telford's grievance was rejected, he had five days to
resubmit it. Huskey, 2019 WL 1495275, at *3-4; MDOC
Handbook at Chapter VIII, Section VI. The uncontroverted
evidence before the undersigned is that he failed to do so.
[13-1] at 1. Because he never resubmitted his grievance, he
never actually began the grievance process. Accordingly, the