United States District Court, S.D. Mississippi, Northern Division
CARLTON W. REEVES UNITED STATES DISTRICT JUDGE
the Court is pro se Plaintiff Richard Kelly
Harrison’s Objection to the August 1, 2019, Magistrate
Judge’s Report and Recommendation
(“R&R”) regarding the Defendant’s
Motion For Summary Judgment Based On Failure To Exhaust
Administrative Remedies. The R&R recommends granting the
Defendant’s Motion for Summary Judgment and dismissing
this matter without prejudice. For the following reasons, the
Court denies Defendant’s Motion.
early 2018, Harrison was incarcerated at the Central
Mississippi Correctional Facility (“CMCF”).
There, he alleges he was not given a proper mat on which to
sleep. Harrison was eventually given a proper mat while at
CMCF after filing a formal grievance on April 12, 2018.
27, 2018, Harrison was transferred to South Mississippi
Correctional Institution (“SMCI”). Harrison
states he was not provided a mat to sleep on at SMCI either,
but instead “had to sleep on a cold, hard, steel, and
rusty bunk for over a week” before another prisoner at
SMCI provided half of his mat for Harrison to use. Harrison
alleges that he sent a letter to Defendant Pelicia Hall, the
Commissioner of the Mississippi Department of Corrections
(“MDOC”), on June 28, 2018, requesting her help.
He further alleges that he received no response from Hall.
Instead, Harrison says that two weeks after sending the
letter, he was approached by “gang members” also
incarcerated at SMCI. They informed Harrison that a
correctional officer at SMCI, who they said was a
“brother” – meaning a fellow gang member
– told them about the letter Harrison had sent to Hall
and how it would lead to a “shakedown” of their
living quarters. They told Harrison that “if they lost
any drugs or [their] cell phones he would be
responsible.” Harrison subsequently filed two
grievances regarding not having a mat at SMCI. These were
received by MDOC on August 23, 2018. Harrison alleges that
when he was on his way to file yet another grievance, an
“Officer Ellis” grabbed the form out of
Harrison’s hand and said, “[L]et me see what you
got. I’ve had some kites wrote about
me.” Harrison claims that Officer Ellis was the
officer who told the aforementioned gang members about his
writing to Hall. Harrison also states that this interaction
frightened him and led him to file the Complaint in this case
on September 12, 2018, “due to the threats to his
safety.” Because of the grievances filed at CMCF,
Harrison’s grievances at SMCI were put on backlog.
Harrison’s grievance concerning not having a mat at
SMCI was opened on October 5, 2018, after the grievance at
CMCF was closed and Harrison withdrew one of his grievances
judgment is proper “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). “The burden then shifts to the nonmoving party
to go beyond the pleadings and by her own affidavits, or by
the depositions, answers to interrogatories, and admissions
on file, designate specific facts showing that there is a
genuine issue for trial.” Davis v. Fort Bend
Cty., 765 F.3d 480, 484 (5th Cir. 2014) (quoting
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
The court must “draw all reasonable inferences in favor
of the nonmoving party.” Id. (citation
omitted). However, “a party cannot defeat summary
judgment with conclusory allegations, unsubstantiated
assertions, or only a scintilla of evidence.”
Id. (citation omitted).
federal law, people who are incarcerated must exhaust
administrative remedies if they wish to sue those who have
violated their constitutional rights. See 42 U.S.C.
§ 1997e(a). Exhaustion is an affirmative defense that
can be raised by the defendant, who in turn has the burden to
demonstrate that the plaintiff failed to exhaust all
available administrative remedies. See Dillon v.
Rogers, 596 F.3d 260, 266 (5th Cir. 2010). A
“strict approach” is taken to the exhaustion
requirement, requiring not just substantial compliance with
the prison’s grievance procedures but instead the
prisoner’s proper exhaustion of administrative
remedies. See Wilson v. Epps, 776 F.3d 296, 299 (5th
Cir. 2015) (quoting Dillon, 596 F.3d at 268);
see also Days v. Johnson, 322 F.3d 863, 866 (5th
Cir. 2003) (collecting cases) (overruled by implication
on other grounds by Jones v. Bock, 549 U.S. 199,
however, are only required to exhaust administrative remedies
that are actually “available” to them. Davis
v. Fernandez, 798 F.3d 290, 294 (5th Cir. 2015). An
administrative remedy is considered unavailable when
officials are “unable or consistently unwilling to
provide any relief, ” the administrative remedy scheme
is “so opaque that it becomes, practically speaking,
incapable of use” by an ordinary prisoner, or
“when prison administrators thwart inmates from taking
advantage of a grievance process through machination,
misrepresentation or intimidation.” See Ross v.
Blake, 136 S.Ct. 1850, 1859–61 (2016).
Additionally, the exhaustion requirement “may be
subject to certain defenses such as waiver, estoppel, or
equitable tolling.” Days, 322 F.3d at 866;
cf. Zipes v. Trans World Airlines, Inc., 455 U.S.
385, 393 (1982) (finding the Title VII exhaustion requirement
to not be a jurisdictional prerequisite but an affirmative
defense like a statute of limitations and thus subject to
waiver, estoppel, and equitable tolling). “[W]hile it
is a question of law whether administrative remedies qualify
as being ‘available’ under 42 U.S.C. §
1997e(a), availability may sometimes turn on questions of
fact.” Berry v. Wexford Health Sources, Civil
Action No. 3:14-CV-665-CWR-FKB, 2016 WL 4030934, at *1
(S.D.Miss. July 26, 2016) (quoting Dillon, 596 F.3d
at 266) (citation omitted) (remanding for discovery).
Hall bears the burden of demonstrating that Harrison
“failed to exhaust available administrative
remedies.” Dillon, 596 F.3d at 266. Pursuant
to Miss. Code Ann. § 47-5-801, MDOC has set up an
Administrative Remedy Program (“ARP”) through
which someone incarcerated “may seek formal review of a
complaint or grievance relating to any aspect of their
incarceration.” The ARP is described as a
“two-step process” and, in short, includes: (1)
an initial written request to the ARP Director by the
incarcerated person; (2) a response by a prison official to
the request; and (3) an additional review by a prison
official if the incarcerated person is dissatisfied with the
first response. If after the second response, the
incarcerated person remains dissatisfied with the result,
they may file a lawsuit.
filed the Complaint in this matter prior to completing this
process for his grievances filed at SMCI. Accordingly, Hall
asks that this case be dismissed, arguing that Harrison did
not exhaust his available remedies as required under 42
U.S.C. § 1997e(a).
objects on two fronts. First, he argues that his grievances
were ignored and thus unavailable to him. Second, he argues
that he was driven to file this complaint due to
“threats to his safety” directly and indirectly
made by an MDOC officer after he began the grievance process.
Harrison’s first objection, the Court has reviewed the
record, the R&R, and relevant case law and agrees with
the R&R that the circumstances do not show that
MDOC’s alleged ignoring of Harrison’s grievances
meant Harrison had exhausted all available remedies. It is
undisputed that Harrison filed the complaint in this case on
September 12, 2018, mere weeks after his SMCI-related ARP
grievances were received on August 23, 2018. Harrison’s
alleged lack of knowledge that his grievances were backlogged
due to his initial grievance at CMCF is no excuse. As
explained in the R&R, MDOC’s system of backlogging
grievances pending the disposition of prior grievances has
been upheld under similar circumstances. See, e.g., White
v. Epps, Civil Action No. 2:09-CV-171, 2010 WL 2539659
(S.D.Miss. Mar. 3, 2010). Prison officials must be afforded
“time and opportunity to address complaints ...