Opinion
4:20CV47-RP
12-07-2023
KENNETH DWAYNE HARTH, SR. PLAINTIFF v. MISSISSIPPI DEPARTMENT OF CORRECTIONS, ET AL. DEFENDANTS
MEMORANDUM OPINION
ROY PERCY UNITED STATES MAGISTRATE JUDGE
This matter comes before the court on the pro se prisoner complaint of Kenneth Dwayne Harth, who challenges the conditions of his confinement under 42 U.S.C. § 1983. For the purposes of the Prison Litigation Reform Act, the court notes that the plaintiff was incarcerated when he filed this suit. Section 1983 provides a federal cause of action against “[e]very person” who under color of state authority causes the “deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983. The plaintiff alleges that the sole remaining defendant, Nurse Rosie Golliday, failed to treat him properly for diabetes and retaliated again him when he complained about the lack of treatment. The defendant has moved [153] for summary judgment, arguing that the plaintiff failed to exhaust his administrative remedies before filing suit, as required under the Prison Litigation Reform Act. See 42 U.S.C. § 1997e(a) (requiring prisoners challenging conditions of confinement to exhaust administrative remedies before filing suit in federal court). The plaintiff has not responded to the motion, and the deadline to do so has expired. For the reasons set forth below, the defendant's motion [153] for summary judgment will be granted, and the instant case will be dismissed without prejudice for failure to exhaust administrative remedies.
Summary Judgment Standard
Summary judgment is appropriate if the “materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials” show 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) and (c)(1). “The moving party must show that if the evidentiary material of record were reduced to admissible evidence in court, it would be insufficient to permit the nonmoving party to carry its burden.” Beck v. Texas State Bd. of Dental Examiners, 204 F.3d 629, 633 (5th Cir. 2000) (citing Celotex Corp. v. Catrett, 477 U.S. 317 (1986), cert. denied, 484 U.S. 1066 (1988)). After a proper motion for summary judgment is made, the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986); Beck, 204 F.3d at 633; Allen v. Rapides Parish School Bd., 204 F.3d 619, 621 (5th Cir. 2000); Ragas v. Tennessee Gas Pipeline Company, 136 F.3d 455, 458 (5th Cir. 1998).
Substantive law determines what is material. Anderson, 477 U.S. at 249. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id., at 248. If the non-movant sets forth specific facts in support of allegations essential to his claim, a genuine issue is presented. Celotex, 477 U.S. at 327. “Where the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L.Ed.2d 538 (1986); Federal Savings and Loan, Inc. v. Krajl, 968 F.2d 500, 503 (5th Cir. 1992). The facts are reviewed drawing all reasonable inferences in favor of the non-moving party. Allen, 204 F.3d at 621; PYCA Industries, Inc. v. Harrison County Waste Water Management Dist., 177 F.3d 351, 161 (5th Cir. 1999); Banc One Capital Partners Corp. v. Kneipper, 67 F.3d 1187, 1198 (5th Cir. 1995). However, this is so only when there is “an actual controversy, that is, when both parties have submitted evidence of contradictory facts.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994); see Edwards v. Your Credit, Inc., 148 F.3d 427, 432 (5th Cir. 1998). 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 (emphasis omitted).
At all times relevant to this case, the plaintiff was incarcerated at the Bolivar County Regional Correctional Facility (“BCRCF”) in Cleveland, Mississippi.
The plaintiff alleges that Nurse Rosie Golliday violated the Eighth Amendment prohibition against cruel and unusual punishment (by denying him adequate medical care), as well as his First Amendment right to seek redress for grievances (by retaliating against him when he complained about his medical treatment). See, generally, Doc. 1 (Complaint); Doc. 153-1 (Spears hearing transcript). He attached several documents to his complaint, and, for the purposes of this memorandum opinion, the court will treat them as grievances. Grievance MSP-19-1395 involved the plaintiff's request to be transferred to another facility because he suffered a broken knee during a fight with another inmate and wished “to avoid any ph[ysical] altercation.” Doc. 1 at 9. Another grievance, which was not numbered, involved a request to transfer “because [Harth] [has] tried to get into programs [at the BCRCF] and has been denied .” Id. at 10. A third grievance alleged that Officer Simpson had harassed Harth. Id. at 11.
Some of the purported grievances appear to be letters to MDOC officials and do not use the grievance format required by MDOC procedures.
None of the grievances attached to Harth's complaint raise denial of adequate medical care -or retaliation for complaining about medical care - as issues of concern. In addition, he has not presented documents showing that he pursued those grievances to completion - a process discussed in detail below. Doc. 1. Finally, even if the grievances were of the proper form, involved denial of medical care, and were pursued to completion, Mr. Harth did not mention Nurse Golliday by name or description in any of the grievances.
Exhaustion of Administrative Remedies
The plaintiff did not exhaust the prison grievance process before filing the instant suit. Although exhaustion of administrative remedies is an affirmative defense, normally to be pled by a defendant, the court may dismiss a pro se prisoner case if failure to exhaust is apparent on the face of the complaint. Carbe v. Lappin, 492 F.3d 325 (5th Cir. 2007). Congress meant for the exhaustion requirement to be a tool to help weed out the frivolous claims from the colorable ones. Jones v. Bock, 549 U.S. 199, 203 (2007).
The Prison Litigation Reform Act (“PLRA”), 42 U.S.C. §1997e(a), requires prisoners to exhaust any available administrative remedies before filing suit under 42 U.S.C. §1983. The exhaustion requirement protects administrative agency authority, promotes efficiency, and produces “a useful record for subsequent judicial consideration.” Woodford v. Ngo, 548 U.S.81, 89 (2006). 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) (emphasis added); see also Johnson v. Ford, 261 Fed.Appx. 752, 755 (5th Cir. 2008)(the Fifth Circuit takes “a strict approach” to the PLRA's exhaustion requirement)(citing Days v. Johnson, 322 F.3d 863, 866 (5th Cir. 2003)); Lane v. Harris Cty. Med. Dep't, No. 06-20935, 2008 WL 116333, at *1 (5th Cir. Jan.11, 2008)(under the PLRA, “the prisoner must not only pursue all available avenues of relief; he must also comply with all administrative deadlines and procedural rules”). Indeed, “a prisoner must now exhaust administrative remedies even where the relief sought - monetary damages - cannot be granted by the administrative process.” Booth v. Churner, 532 U.S. 731, 739 (2001).
The requirement that claims be exhausted prior to the filing of a lawsuit is mandatory. Gonzalez v. Seal, 702 F.3d 785 (5th Cir.2012). “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). As “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. A prisoner should face a significant consequence for deviating from the prison grievance procedural rules:
The benefits of exhaustion can be realized only if the prison grievance system is given a fair opportunity to consider the grievance. The prison grievance system will not have such an opportunity unless the grievance complies with the system's critical procedural rules. A prisoner who does not want to participate in the prison grievance system will have little incentive to comply with the system's procedural rules unless noncompliance carries a sanction ....
Woodford at 95.
Mississippi Code Annotated § 47-5-801 grants the Mississippi Department of Corrections the authority to adopt an administrative review procedure at each of its correctional facilities. The Mississippi Department of Corrections has thus set up an Administrative Remedy Program (“ARP”) through which an inmate may seek formal review of a complaint or grievance relating to any aspect of his incarceration. This court approved the ARP Program in Gates v. Collier, GC 71-6-S-D (N.D. Miss. Feb. 15, 1994). See also Marshall v. Price, 239 F.3d 365, 2000 WL 1741549, at *1 (5th Cir. 2000). An inmate must complete two steps to exhaust the ARP process. See Gates v. Barbour, No. 4:71CV6-JAD, Doc. 1242 (N.D. Miss. Aug. 19, 2010); Threadgill v. Moore, No. 3:10CV378-TSL-MTP, 2011 WL 4388832, at *3 n.6 (S.D.Miss. July 25, 2011).
The inmate may initiate the two-step ARP grievance process by submitting his allegations in writing to the prison's Legal Claims Adjudicator within thirty days of the incident. Howard v. Epps, No. 5:12CV61-KS-MTP, 2013 WL 2367880, at *2 (S.D.Miss. May 29, 2013). The Adjudicator initially screens the complaint and determines whether or not to accept it into the ARP process as a grievance. Id. The screening phase thus operates as a filter -applied before the formal grievance process begins - to remove procedurally defective or otherwise invalid grievances.
If an inmate is found guilty of a prison rule violation, he may appeal that finding through the ARP process. Inmate Handbook, Section VIII, Paragraph XI. However, the appeal of a rule violation through the ARP is a one-step process (in contrast to the two-step process for resolving grievances). Id.
As set forth above, a prisoner cannot satisfy the exhaustion requirement by filing a procedurally defective grievance or appeal. Woodford, supra. Hence, rejection of a grievance during the screening phase terminates the grievance - and does not count as exhaustion of the grievance process. See Seales v. Shaw, No. 5:15-CV-59-KS-MTP, 2016 WL 616749, at *3 (S.D.Miss. Jan. 26, 2016), report and recommendation adopted sub nom. Seales v. Wilkinson Cty. Corr. Facility, No. 5:15-CV59-KS-MTP, 2016 WL 616385 (S.D.Miss. Feb. 16, 2016) (finding rejection during initial MDOC screening process not to constitute exhaustion); Goldmon v. Epps, No. 4:14-CV-0112-SA-SAA, 2015 WL 5022087, at *3 (N.D. Miss. Aug. 24, 2015) (same); see also Robinson v. Wheeler, 338 Fed.Appx. 437 (5th Cir. 2009) (per curiam) (not reported) (upholding Louisiana initial screening provision of prison grievance process). However, if 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:
If a request is rejected for technical reasons or matters of form, the inmate shall have five days from the date of rejection to file his/her corrected grievance.See https://www.mdoc.ms.gov/Inmate-Info/Documents/CHAPTERV_ni.pdf (last visited April 3, 2019)).
If accepted as a valid grievance, the complaint is forwarded to the appropriate official who then issues a First Step Response to the complaining inmate. Id. If the inmate is unsatisfied with the First Step Response, he may continue to the Second Step by completing the appropriate ARP form and sending it to the Legal Claims Adjudicator. Id. The Superintendent, Warden, or Community Corrections Director will then issue a final ruling (the Second Step Response) - which completes the ARP process. Id. If the inmate is unsatisfied with that response, he may file suit in state or federal court. Id.
The submission and screening of the plaintiff's complaints do not constitute the beginning of the ARP process. Instead, the ARP grievance process begins when the inmate's submission is “accepted” as a grievance after initial screening. Inmate Handbook, Chapter VIII, Paragraph IV(H).
The grievance process will also be deemed complete if more than 90 days elapse from the beginning of the process (acceptance of the grievance after screening) without issuance of a Second Step Response Form (the normal way to complete the grievance process). Inmate Handbook, Chapter VIII, Paragraph VIII(A). In the absence of an MDOC response in a step of the ARP process, the inmate may not simply wait for the 90-day deadline to expire. Id. Instead, for each step without a response, he must wait until the deadline for a written response for that step expires, then move to the next step in the process. Id. If the inmate has submitted the proper forms for each step, yet 90 days elapses without issuance of a Second Step Response Form, then he has completed the grievance process and may seek relief in State or Federal court.
The Plaintiff Did Not Exhaust the MDOC Grievance Process
In this case, the plaintiff has not presented proof that he filed a grievance complaining that Nurse Rosie Golliday deprived him of adequate medical care - or that she retaliated against him when he complained about his medical care. The grievances attached to the plaintiff's complaint concern other issues, and none of the grievances even mention Nurse Golliday. Further, the plaintiff has presented no proof that he pursued those grievances to conclusion. For these reason, the plaintiff did not exhaust his administrative remedies as to his claims against Nurse Golliday, as required under the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), and the case must be dismissed for that reason.
Conclusion
For the reasons set forth above, the motion [153] by the defendant for summary judgment will be granted, and the instant case will be dismissed without prejudice for failure to exhaust administrative remedies. A final judgment consistent with this memorandum opinion will issue today.
SO ORDERED