United States District Court, S.D. Mississippi, Southern Division
OVERRULING PLAINTIFF'S  OBJECTION; ADOPTING
MAGISTRATE JUDGE'S  REPORT AND RECOMMENDATION;
GRANTING DEFENDANTS JACQUELINE BANKS AND ANDREW MILLS'S
 MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT RONALD
WOODALL'S  MOTION TO DISMISS OR IN THE ALTERNATIVE TO
REVOKE PLAINTIFF'S IFP STATUS; AND DISMISSING CERTAIN OF
PLAINTIFF'S CLAIMS WITHOUT PREJUDICE
SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE.
THE COURT is Plaintiff Roger Johnson's Objection  to
the Report and Recommendation  of United States
Magistrate Judge John C. Gargiulo, entered in this case on
June 11, 2019. Based upon a review of the parties'
submissions, the record, and relevant legal authority, the
Magistrate Judge recommended that Defendants Jacqueline Banks
and Andrew Mills's Motion  for Summary Judgment,
which was joined  by Defendant Ronald Woodall, be granted
and that Defendant Ronald Woodall's Motion  to
Dismiss or in the Alternative to Revoke Plaintiff's IFP
Status be denied. R. & R.  at 10.
thoroughly reviewing Plaintiff's Objection , the
Magistrate Judge's Report and Recommendation , the
record, and relevant legal authority, the Court finds that
Plaintiff's Objection  should be overruled and that
the Magistrate Judge's Report and Recommendation 
should be adopted. Defendants Jacqueline Banks and Andrew
Mills's Motion  for Summary Judgment, which was
joined  by Defendant Ronald Woodall, should be granted,
and Woodall's Motion  to Dismiss or in the
Alternative to Revoke Plaintiff's IFP Status should be
denied. Plaintiff's claims concerning mental illness and
asthma treatment will be dismissed without prejudice for
failure to exhaust administrative remedies, while
Plaintiff's claims concerning specially issued soap will
27, 2018,  Plaintiff Roger Johnson
(“Plaintiff” or “Johnson”), an inmate
in the custody of the Mississippi Department of Corrections
(“MDOC”), filed the Complaint  in this case,
asserting claims under 42 U.S.C. § 1983. Johnson alleges
that while housed at the South Mississippi Correctional
Institution (“SMCI”) in Leakesville, Mississippi,
he was denied treatment for his medical
conditions.See Compl.  at 5.
alleges that he suffers from post-traumatic stress disorder,
bipolar disorder, and schizophrenia, and that he needs mental
health treatment that SMCI cannot or will not provide.
See Id. at 12. According to Johnson, his mental
illness causes anxiety attacks, which in turn lead to chest
pains and increased asthma attacks. Id. at 14.
Johnson asserts that he has been refused prescribed breathing
treatments, forcing him to depend more upon asthma inhalers,
and that he is only issued an asthma inhaler once every six
months, even though his inhalers last one to two months.
Id. Finally, Johnson claims that he is allergic to
the state-provided soap and should receive special soap once
a week, but only receives one bar every three months.
Id. at 16. Johnson maintains that the lack of
specially issued soap has caused his skin to break out.
Johnson's IFP Status
though Johnson acknowledges that he has had three qualifying
dismissals, commonly known as three-strikes under the Prison
Litigation Reform Act, see Compl.  at 18, he
sought leave to proceed in forma pauperis
(“IFP”) under 28 U.S.C. § 1915(g),
see Mot.  at 1-2, on grounds that he was
“under imminent danger of serious physical injury,
” 28 U.S.C. § 1915(g). Because the Court could not
definitively state that Johnson did not qualify for this
exception, it granted Johnson's request to proceed IFP.
See Order  at 2-3.
Defendants' Motion  for Summary Judgment
February 14, 2019, Defendants Jacqueline Banks and Andrew
Mills filed a Motion  for Summary Judgment, arguing that
Johnson's claims should be dismissed for failure to
exhaust administrative remedies. See Mot.  at
Dr. Ronald Woodall joined Defendants' Motion  for
Summary Judgment. See Joinder  at 1.
have presented evidence that Johnson filed a grievance under
the MDOC's two-step Administrative Remedy Program
(“ARP”) on May 2, 2018. This grievance raised
some of the allegations that form the basis of the Complaint,
including Johnson's need for mental health treatment and
his anxiety attacks which cause him chest pains and asthma
attacks. See ARP [25-1] at 3. After Johnson received
the first step response Form on July 21, 2018, he was not
satisfied with the response and wished to proceed to step
two. See First Step Resp. [25-1] at 7. However, by
then Johnson had already filed this lawsuit. According to the
October 30, 2018, Affidavit of Joseph Cooley, Johnson's
second step response was sent for delivery to Johnson on
October 3, 2018, and as of October 30, 2018, the signed
receipt had not yet been returned to the ARP. See
Aff. of Joseph Cooley [25-1] at 10.
Woodall's Motion  to Dismiss or in the
Alternative to Revoke Johnson's IFP Status
February 15, 2019, Defendant Woodall filed a Motion  to
Dismiss or in the Alternative to Revoke Plaintiff's IFP
Status. See Mot.  at 1-4. Woodall argues that
Johnson's Complaint fails to meet the “imminent
harm” standard set forth in 28 U.S.C. § 1915(g).
Id. at 3. Because Johnson received three strikes
under the PLRA prior to filing the present action, Woodall
argues that Johnson's claims should be dismissed, or in
the alternative, Johnson should be required to pay the
necessary filing fees before being allowed to pursue his
claims in this case. Id.
The Magistrate Judge's Report and Recommendation
Magistrate Judge entered a Report and Recommendation  on
June 11, 2019. The Magistrate Judge determined that Johnson
had not properly exhausted his administrative remedies
concerning his mental illness or asthma treatment claims and
recommended that Defendants' Motion  for Summary
Judgment be granted and that those claims be dismissed.
See R. & R.  at 8. The Magistrate Judge
further recommended that Defendant Woodall's Motion 
to Dismiss or in the Alternative to Revoke Plaintiff's
IFP Status be denied. See Id. at 10.