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Johnson v. MDOC Contract Monitor

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

September 6, 2019

ROGER JOHNSON PLAINTIFF
v.
MDOC CONTRACT MONITOR, et al. DEFENDANTS

         ORDER OVERRULING PLAINTIFF'S [38] OBJECTION; ADOPTING MAGISTRATE JUDGE'S [36] REPORT AND RECOMMENDATION; GRANTING DEFENDANTS JACQUELINE BANKS AND ANDREW MILLS'S [25] MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT RONALD WOODALL'S [28] MOTION TO DISMISS OR IN THE ALTERNATIVE TO REVOKE PLAINTIFF'S IFP STATUS; AND DISMISSING CERTAIN OF PLAINTIFF'S CLAIMS WITHOUT PREJUDICE

          HALIL SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE.

         BEFORE THE COURT is Plaintiff Roger Johnson's Objection [38] to the Report and Recommendation [36] 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 [25] for Summary Judgment, which was joined [29] by Defendant Ronald Woodall, be granted and that Defendant Ronald Woodall's Motion [28] to Dismiss or in the Alternative to Revoke Plaintiff's IFP Status be denied. R. & R. [36] at 10.

         After thoroughly reviewing Plaintiff's Objection [38], the Magistrate Judge's Report and Recommendation [36], the record, and relevant legal authority, the Court finds that Plaintiff's Objection [38] should be overruled and that the Magistrate Judge's Report and Recommendation [36] should be adopted. Defendants Jacqueline Banks and Andrew Mills's Motion [25] for Summary Judgment, which was joined [29] by Defendant Ronald Woodall, should be granted, and Woodall's Motion [28] 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 proceed.

         I. BACKGROUND

         A. Plaintiff's claims

         On June 27, 2018, [1] Plaintiff Roger Johnson (“Plaintiff” or “Johnson”), an inmate in the custody of the Mississippi Department of Corrections (“MDOC”), filed the Complaint [1] 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.[2]See Compl. [1] at 5.

         Johnson 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. Id.

         B. Johnson's IFP Status

         Even though Johnson acknowledges that he has had three qualifying dismissals, commonly known as three-strikes under the Prison Litigation Reform Act, see Compl. [1] at 18, he sought leave to proceed in forma pauperis (“IFP”) under 28 U.S.C. § 1915(g), see Mot. [2] 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 [6] at 2-3.

         C. Defendants' Motion [25] for Summary Judgment

         On February 14, 2019, Defendants Jacqueline Banks and Andrew Mills filed a Motion [25] for Summary Judgment, arguing that Johnson's claims should be dismissed for failure to exhaust administrative remedies. See Mot. [25] at 1-2.[3]

         Defendant Dr. Ronald Woodall joined Defendants' Motion [25] for Summary Judgment. See Joinder [29] at 1.

         Defendants 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.

         D. Woodall's Motion [28] to Dismiss or in the Alternative to Revoke Johnson's IFP Status

         On February 15, 2019, Defendant Woodall filed a Motion [28] to Dismiss or in the Alternative to Revoke Plaintiff's IFP Status. See Mot. [28] 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.

         E. The Magistrate Judge's Report and Recommendation [36]

         The Magistrate Judge entered a Report and Recommendation [36] 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 [25] for Summary Judgment be granted and that those claims be dismissed. See R. & R. [36] at 8. The Magistrate Judge further recommended that Defendant Woodall's Motion [28] to Dismiss or in the Alternative to Revoke Plaintiff's IFP Status be denied. See Id. at 10.

         II. DISCUSSION

         A. Stand ...


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