Jimmy Powell v. Timothy Morris, et al

Filing

UNPUBLISHED OPINION FILED. [16-60155 Affirmed ] Judge: CDK , Judge: JWE , Judge: SAH Mandate pull date is 08/10/2017 [16-60155]

Case: 16-60155

Document: 00514082386

Page: 1

Date Filed: 07/20/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fif h Circuit

No. 16-60155
Summary Calendar
JIMMY POWELL, also known as Jamel Ansaaru El Majid,

FILED
July 20, 2017
Lyle W. Cayce
Clerk

Plaintiff-Appellant
v.
TIMOTHY MORRIS, Warden; ROGER DAVIS, Food Director; GENE
NEWSOME; KENNETH POWELL, Chaplain; EUGENE WIGGLESWORTH,
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:14-CV-462
Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Jimmy Powell, Mississippi prisoner # 48033, filed a pro se 42 U.S.C.
§ 1983 complaint against officials at the Mississippi Department of Corrections
(MDOC), alleging that they violated his First and Eighth Amendments rights.
He appeals the magistrate judge’s grant of the defendants’ motions for
summary judgment and the concomitant dismissal of his suit.

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
*

Case: 16-60155

Document: 00514082386

Page: 2

Date Filed: 07/20/2017

No. 16-60155
We review a grant of summary judgment de novo, using the same
standard as that employed by the district court. Carnaby v. City of Houston,
636 F.3d 183, 187 (5th Cir. 2011). Summary judgment is appropriate “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). If
the moving party establishes this, the burden shifts to the nonmovant to set
forth specific evidence to support his claims. Duffie v. United States, 600 F.3d
362, 371 (5th Cir. 2010).
“No action shall be brought with respect to prison conditions under
section 1983 of this title, or any other Federal law, by a prisoner confined in
any jail, prison, or other correctional facility until such administrative
remedies as are available are exhausted.” 42 U.S.C. § 1997e(a); Dillon v.
Rogers, 596 F.3d 260, 268 (5th Cir. 2010). The defendants’ summary judgment
evidence shows that Powell failed to exhaust the MDOC’s two-step
Administrative Remedy Program (ARP) with respect to his complaint that he
was not receiving a Halal diet, as he did not complete the second step of the
ARP. See Wilson v. Epps, 776 F.3d 296, 300 n.2 (5th Cir. 2015); MDOC Inmate
Handbook, ch. VIII. Moreover, Powell has not met his burden of presenting
evidence that shows that he exhausted the ARP. See Duffie, 600 F.3d at 371;
Gonzalez v. Seal, 702 F.3d 785, 788 (5th Cir. 2012).
AFFIRMED.

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