United States District Court, S.D. Mississippi, Western Division
OPINION AND ORDER
MICHAEL T. PARKER UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on the Motions for Summary
Judgment   filed by Defendant Dr. James Burke. Having
considered the parties submissions and the applicable law,
the Court finds that the Motions   should be granted
and Plaintiff's claims against Dr. Burke should be
dismissed without prejudice.
August 23, 2018, Plaintiff Joseph Ryan Streeval, proceeding
pro se and in forma pauperis, filed his
Complaint  pursuant to 42 U.S.C. § 1983.
Plaintiff's claims arose while be was a post-conviction
inmate at Wilkinson County Correctional Facility
(“WCCF”) in Woodville, Mississippi. According to
Plaintiff, he was attacked by other inmates on April 17,
2018. Plaintiff alleges that Defendants Justin Green, Michael
Turner, Bessie McKnight, Ella Scott, and Jody Bradley
violated his constitutional rights by failing to provide him
adequate protection from harm. Additionally, Plaintiff
alleges that Dr. James Burke violated his constitutional
rights by failing to provide him adequate medical care
following the April 17, 2018 attack.
April 18, 2019, Dr. Burke filed a Motion for Summary Judgment
, arguing that Plaintiff failed to exhaust his
administrative remedies prior to filing this action.
Thereafter, the Court conducted a
Spears hearing, during which Plaintiff clarified
his complaint. At the hearing, the Court directed Plaintiff
to file a response to the Motion for Summary Judgment .
See Omnibus Order . Plaintiff filed a Response
. On September 20, 2019, Dr. Burke filed an additional
Motion for Summary Judgment , arguing, inter
alia, that Plaintiff failed to exhaust his
FOR SUMMARY JUDGMENT
motion for summary judgment will be granted only when
“the record indicates that there is ‘no genuine
issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.'”
Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d
285, 288 (5th Cir. 2004) (citing Fed.R.Civ.P. 56(c);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
The Court must view “the evidence in the light most
favorable to the nonmoving party.” Id. The
nonmoving party, however, “cannot defeat summary
judgment with conclusory allegations, unsubstantiated
assertions, or ‘only a scintilla of
evidence.'” Turner v. Baylor Richardson Med.
Center, 476 F.3d 337, 343 (5th Cir. 2007) (quoting
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994)). In the absence of proof, the Court does not
“assume that the nonmoving party could or would prove
the necessary facts.” Little, 37 F.3d at 1075
Prison Litigation Reform Act (“PLRA”), 42 U.S.C.
§ 1997e(a), requires prisoners to exhaust any available
administrative remedies prior to filing suit under 42 U.S.C.
§ 1983. “Whether a prisoner has exhausted
administrative remedies is a mixed question of law and
fact.” Dillon v. Rogers, 596 F.3d 260, 266
(5th Cir. 2010). The United States Court of Appeals for the
Fifth Circuit held that “[s]ince exhaustion is a
threshold issue that courts must address to determine whether
litigation is being conducted in the right forum at the right
time, . . . judges may resolve factual disputes concerning
exhaustion without the participation of a jury.”
Id. at 272. Because exhaustion is an affirmative
defense, Defendants bear the burden of demonstrating that
Plaintiff failed to exhaust available administrative
remedies. Id. at 266.
Fifth Circuit takes “a strict approach” to the
PLRA's exhaustion requirement. Johnson v. Ford,
261 Fed. App'x 752, 755 (5th Cir. 2008) (citing Days
v. Johnson, 322 F.3d 863, 866 (5th Cir. 2003)). A
prisoner cannot satisfy the exhaustion requirement “by
filing an untimely or otherwise procedurally defective
administrative grievance or appeal” because
“proper exhaustion of administrative remedies is
necessary.” Woodford v. Ngo, 548 U.S. 81,
83-84 (2006). It 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. Wright v. Hollingsworth, 260 F.3d
357, 358 (5th Cir. 2001).
Code § 47-5-801 grants the Mississippi Department of
Corrections (“MDOC”) the authority to adopt an
administrative review procedure at each of its correctional
facilities. Pursuant to this statutory authority, the MDOC
has set up an Administrative Remedy Program
(“ARP”) through which an inmate may seek formal
review of a complaint relating to any aspect of his
incarceration. See Mississippi Department of
Corrections Handbook at Ch. VIII.
is a two-step process. An inmate is required to submit his
initial grievance or request, in writing, through the Inmate
Legal Assistance Program (“ILAP”) within thirty
days of an alleged incident. If, after screening, the
grievance or request is accepted into the ARP, an official
will issue a First Step Response. If the inmate is
unsatisfied with the First Step Response, he may continue to
the Second Step by using ARP form ARP-2. See
Mississippi Department of Corrections Handbook at Ch. VIII.
support of his Motions for Summary Judgment  , Dr.
Burke submitted documents relating to Plaintiff's
grievance. The record shows that on July 6, 2018, Plaintiff
submitted an ARP grievance, complaining about the April 18,
2019 assault and alleging that he informed “Cap. Green,
Psychologist Dunn, Capt. Scott, and Case Management
January” that his life was in danger prior to the
assault. See ARP Grievance and Response [31-1]. On
July 26, 2018, the Director of the Administrative Remedy
Program, R. Pennington, responded to Plaintiff's
grievance. Id. Pennington rejected the grievance as
untimely as it was filed more than thirty days after the
alleged incident. Id. Pennington also found that
Plaintiff's requested relief was beyond the power of the
ARP department to grant. Id.
Burke argues that Plaintiff failed to properly exhaust his
administrative remedies because his grievance was rejected as
untimely and because he failed to give Dr. Burke fair notice
of any complaint regarding medical care. As previously
discussed, an inmate cannot satisfy the exhaustion
requirement by filing an untimely or otherwise defective
grievance. Woodford, 548 U.S. at 83-84. In his
Response , Plaintiff argues that his claim against Dr.
Burke should not be dismissed for failure to exhaust because,
as he explained in his grievance, the untimely ...