Magee v. Crowe et al

Filing 68

ORDER & REASONS granting dft's 65 Motion for Summary Judgment; pla's claim against dft is DISMISSED WITH PREJUDICE and each party to bear their own costs. Signed by Magistrate Judge Karen Wells Roby on 4/13/2011. (rll, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JIMMY W. MAGEE

CIVIL ACTION

VERSUS

NO. 09-0167

SHERIFF ROBERT CROWE,
WARDEN D. TOPPS

UNITED STATES MAGISTRATE
JUDGE KAREN WELLS ROBY

ORDER AND REASONS
Before the Court is a Motion for Summary Judgment (R. Doc. 65) filed by the Defendant,
Warden Demille Tops (“Warden Topps”). Warden Topps seeks summary judgment as to the
Plaintiff’s remaining claim against him for denial of newspapers and further requests that all costs
be assessed against the Plaintiff. The Plaintiff, Jimmy W. Magee (“Magee”) did not file an
opposition. This matter is before the undersigned United States Magistrate Judge upon consent of
the parties pursuant to Title 28 U.S.C. § 636(c).1
I.

Factual Summary
A.

The Original Complaint

The plaintiff, Jimmy W. Magee (“Magee”), was a prisoner housed in the Washington Parish
Jail (“WPJ”) at the time of the filing of this pro se and in forma pauperis complaint pursuant to 42

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R. Doc. 48.

U.S.C. § 1983.2 Magee filed this suit against the defendants, Sheriff Robert Crowe and Warden
Demille Topps, challenging the conditions of his confinement at the WPJ.
Magee alleges that the defendants authorized “corporal punishment,” specifically Warden
Topps would punish several inmates for the wrongful actions of one inmate. He claims that Sheriff
Crowe allowed this behavior. As examples of this “corporal punishment,” he alleges that, on
December 16, 2008, Warden Topps authorized deputies to lock the inmates in dormitory B in their
cells because one inmate tried to steal an extra dinner tray. He further claims that, on January 7,
2008, the Warden took jail store privileges away from the entire jail because two inmates were
smoking cigarettes and flushed plastic forks down the toilets.
Magee further alleges that the defendants allow the jail to be overcrowded. He claims that
he arrived at the jail on November 13, 2008, and in spite of his back problems, he had to sleep on
the floor without a mat for three weeks because of overcrowding. He claims that the jail was
designed to hold 110 inmates and the Sheriff allows 175 inmates to remain in the jail.
Magee also complains that the books in the law library at WPJ were outdated, and
specifically complains that some case books are 30 years old. He alleges that the library has no
federal law books. He also complains that the jail does not have inmate counsel to assist to help
inmates who cannot read or write.
Magee also alleges that inmates are not allowed adequate access to the law library. He
claims that it can take up to three weeks to get library time for just a few minutes. He complains that
there is no written procedure for gaining access to the library, which causes delays in obtaining
access. He contends that the deputies do not understand that the inmates have a right to use the
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He was later incarcerated in the B.B. “Sixty” Rayburn Correctional Center. Rec. Doc. No. 26. He was later
released, and on March 17, 2011, the Court was advised that he had relocated to Angie, Louisiana. Rec. Doc. No. 56.
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library, and the jail administration refuses to provide copies of motions and briefs. He also claims
that the library needs to be improved and updated to meet constitutional standards.
Magee also complains that the conditions of the facility render his punishment cruel and
unusual. He claims that the dormitories have black mold on the walls with worms coming from the
base of the toilets. He claims that these worms got on his feet on December 1, 2008.
He also claims that the air flow is inadequate. This, he claims, causes the walls and floors
to sweat. He further states that “the hitch” in the day-room stays filled with water which causes an
overflow of water near the showers.
Next, Magee complains that Warden Topps and his deputies place inmates in isolation
without disciplinary hearings to contest the allegations against them. He claims that the Warden will
take away certain privileges, like visitation, canteen, telephone use and television, without giving
the inmate a disciplinary hearing.
Magee asserts that, after arriving at the jail on November 13, 2008, the inmates were only
allowed two outdoor recreation periods over a three month period. He claims that the jail does not
have a “yard deputy” to assure that the inmates receive outdoor recreation at least once a week.
He next complains that he arrived at the jail with severe back problems and stomach ulcers.
He claims that he requested that the jail provide him with medication on several occasions. He
alleges that the jail has done nothing to provide medication or to allow him to see a doctor. He
claims that the jail does not provide medication transportation or have a nurse for inmates who
become ill over the weekend. He also claims that medical attention at the jail is only available
during the work week.

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Finally, Magee alleges that Warden Topps does not allow inmates to subscribe to the TimesPicayune Newspaper. He claims that the Warden refused his request to obtain the newspaper at his
own expense. He further alleges that the jail does not provide newspapers or magazines, which he
claims violates his First Amendment rights.
Magee seeks as relief unspecified punitive and compensatory damages for his pain and
suffering and to have Sheriff Crowe pay the filing fee. He also seeks injunctive relief in the form
of an order to the Sheriff to correct the conditions of the prison and to have a federal inspector sent
to the prison every year to assure compliance.
B.

The Amended Complaint

Magee amended his complaint to indicate that he is seeking injunctive relief and punitive and
compensatory damages in the amount of $175,000.3 He also indicates that each individual is named
in his official and individual capacities.
C.

The Spears Hearing

Magee testified that he was presently housed in the Elayn Hunt Correctional Center serving
time on a probation revocation and a misdemeanor charge. He stated that he had been housed in the
WPJ from November 2008 to January 2009. He filed this suit because the WPJ had water on the
floor near the toilet and black mold on the walls. He also complained that inmates had to wait for
medical treatment. He also stated that the law library was outdated and that inmates were not
allowed enough time to access the books that were there. The jail also did not have anyone there
to help with legal matters. Magee also stated that the outdoor recreation time was inconsistently
provided when it was provided at all.

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Rec. Doc. No. 20.
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He further testified that the jail did not have grievance forms available, so he complained to
the deputies about the conditions. He stated that he was told that he should not have gone to jail.
Magee further stated that he entered the jail with a bad back and was not able to get pain
medication or follow certain routines to help his condition. He stated that he submitted request
forms but did not receive care, except one night he did receive a cold tablet. He also complained
that, upon his arrival at the WPJ, he had to sleep on the floor without a mat or bunk. He managed
to get a sheet from someone that he used until he was given a mat when another inmate was released.
This went on for about one week.
He also complained that the jail did not provide a disciplinary board to review punishment
imposed on the inmates. He also stated that the Warden and his deputies would punish the whole
dormitory for the actions of one inmate. This would include the loss of commissary and phone
privileges and time in a holding cell. He further stated that Deputy Brumfield would threaten to beat
people, and threw someone up against a wall at one time. When the inmates complained, he handed
out a couple of Administrative Remedy Procedure (“ARP”) forms for them to fill out. Magee also
stated that Deputy Brumfield stuck his fingers in his face, stared at his face, and threatened him with
vile language.
Magee further testified that he sued Sheriff Crowe because he is the boss over the jail. He
allows the Warden and the Assistant Warden to run the jail as they see fit, without correcting their
actions. He conceded that the Sheriff had no direct involvement with him while he was at the jail.
He also testified that he sued the Warden because of the conditions of jail and for his pain
and suffering. As relief, he seeks $175,000 in damages and injunctive relief in the form of an order
directing the prison to improve the jail and obey the rules and guidelines of the Supreme Court.

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D.

The Remaining Claim

On April 29, 2010, Magee’s claims against Sheriff Robert Crowe, in both his individual and
official capacity and Magee’s claims against Topps in his official capacity only, were dismissed with
prejudice as frivolous and for failure to state a claim for which relief may be granted pursuant to 28
U.S.C. § 1915(e)(2) and § 1915A and 42 U.S.C. § 1997. In addition, Magee’s claims against Topps,
in his individual capacity, alleging (1) unsanitary living conditions, (2) denial of a mat or bunk, (3)
disciplinary actions and loss of privileges, (4) denial of access to the law library, (5) inadequate
medial care, (6) inadequate outdoor recreation, and (7) verbal threats by Deputy Brumfield, were
dismissed with prejudice as frivolous and for failure to state a claim for which relief may be granted
pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A and 42 U.S.C. § 1997. Thus, the only claim
remaining before the Court is Magee’s § 1983 claim against Warden Topps, in his individual
capacity, alleging denial of access to newspapers.
II.

Motion for Summary Judgment
On March 24, 2011, the parties were scheduled to participate in a pre-trial conference before

the undersigned. On March 24, 2011, Jason Paul Wixom, counsel for the remaining defendant,
Warden Topps, appeared before the undersigned. However, Magee failed to attend despite
representations during the March 21, 2011, Settlement Conference that he would attend the Pre-Trial
Conference.
The Court reviewed the pre-trial submissions produced by the Defendant, which indicated
that he intended to raise failure to exhaust as a defense at trial. As a result, the Court suspended the
trial and ordered the Defendant to file a motion for summary judgment no later than March 28, 2011.

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The Court further ordered that any opposition be filed by Magee no later than April 4, 2011. (See
R. Doc. 63.)
On March 25, 2011, Warden Topps filed a motion for summary judgment, contending that
Magee failed to exhaust his administrative remedies, in violation of the Prison Litigation Reform
Act (“PRLA”), prior to filing the above captioned action such that his claim should be summarily
dismissed. Magee did not file an opposition.
III.

Standard of Review for Motion for Summary Judgment
Summary judgment is appropriate where “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show 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.” Fed. R. Civ. P. 56(c); see Fields v. City of Southern Houston, 922 F.2d 1183, 1187 (5th Cir.
1991). The Court’s task is not to resolve disputed issues of fact, but to determine whether there
exists any factual issues to be tried. See Andersen v. Liberty Lobby, Inc., 477 U.S. 242, 247-49
(1986). In making this determination, all of the facts must be viewed in the light most favorable to
the non-moving party. Id., at 248.
The moving party bears the initial responsibility of informing the district court of the basis
for its motion and identifying those portions of the record which it believes demonstrate the absence
of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317 (1986). Once the
moving party carries its burden of proving that there is no material factual dispute, the burden shifts
to the nonmovant “to show that summary judgment should not lie.” Hopper v. Frank, 16 F.3d 92,
96 (5th Cir. 1994). While the court must consider the evidence with all reasonable inferences in the
light most favorable to the nonmovant, the nonmoving party must come forward with specific facts

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showing that there is a genuine issue for trial. See Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). This requires the nonmoving party to do “more than simply show
that there is some metaphysical doubt as to the material facts.” Id.
Instead, the nonmoving party must “go beyond the pleadings and by [his] own affidavits, or
by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts
showing that there is a genuine issue of fact for trial.’” Celotex Corp, 477 U.S. at 324. If the record
taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no
genuine issue for trial. See Szabo v. Errisson, 68 F.3d 940, 942 (5th Cir. 1995); Davis v. Chevron
U.S.A., Inc., 14 F.3d 1082, 1085 (5th Cir. 1994).
IV.

Analysis
Warden Topps contends that, contrary to the Plaintiff’s assertion, the Washington Parish Jail

had a grievance procedure at the time the Plaintiff was incarcerated and at the time that the Plaintiff
filed his Complaint with the Court. Warden Topps by affidavit states that, on July 1, 2008, both
Robert Crowe, the Sheriff of Washington Parish, and himself adopted a grievance procedure for the
prison. Magee was incarcerated on November 13, 2008, a few months after the procedure was put
in place. Further, Magee’s complaint was not filed until January 12, 2009, several months after the
procedure was put in place. Warden Topps also contends that inmates are informed of the grievance
procedure at the time they are booked.
Warden Topps asserts that, under the grievance procedure, if a Washington Parish inmate
has a complaint about the conditions of their confinement, a copy of the grievance form can be
obtained from the shift supervisor. Alternatively, the prisoner could obtain a copy of the form from
the box of forms which is located on each cell block of the prison. Once the prisoner obtains a form,

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he need only list his complaint in the form and provide a copy to the shift supervisor. The shift
supervisor must then submit a response to the grievance. If the inmate is unsatisfied with the
response, the inmate may file for an appeal to the Warden within three days of receiving the shift
supervisor’s response. The Warden then must file a response to the grievance. If the inmate is
unsatisfied with the Warden’s response, the inmate may appeal to the Sheriff.
In support of the motion, Warden Topps submitted an affidavit in which he attests that a
grievance procedure was in place when Magee was booked, incarcerated, and filed the complaint.
(R. Doc. 65-4, pp. 1-2, Exh. A.) Warden Topps also included a copy of the document which states
that the grievance procedure was formally adopted. (R. Doc. 65-4, p. 3, Exh. A(1)). Finally,
Warden Topps provided a blank copy of the applicable forms for filing, and appealing responses to
grievances. (R. Doc. 65-4, pp. 5-8, Exh. A(2)). Warden Topps contends that because a grievance
procedure was in place, and Magee failed to utilize it, summary judgment is appropriate.
The PLRA, as codified at 42 U.S.C. § 1997e(a), requires that prisoners must properly exhaust
“such administrative remedies as are available” prior to filing a § 1983 complaint related to prison
conditions. Woodford v. Ngo, 548 U.S. 81, 83-84 (2006). Specifically, § 1997e(a) provides that
“[n]o action shall be brought with respect to prison conditions under section 1983 . . . by a prisoner
confined in any jail, prison, or other correctional facility until such administrative remedies as are
available are exhausted.” Days v. Johnson, 322 F.3d 863, 866 (5th Cir. 2003).

The State of

Louisiana has a similar requirement before suit can be filed in the state courts. La. Rev. Stat. Ann.
§ 15:1184(A)(2).
Exhaustion under the PLRA is an affirmative defense and is a threshold issue that courts
must address to determine whether litigation is being conducted in the right forum at the right time.

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Dillon v. Rogers, 596 F.3d 260, 272 (5th Cir. 2010); see also, Jones v. Brock, 549 U.S. 199, 216
(2007) (concluding that exhaustion under the PLRA is an affirmative defense). As a result, the trial
court may resolve factual disputes concerning exhaustion without the participation of a jury. Id.
The court does not “inquire whether administrative procedures satisfy minimum acceptable
standards of fairness and effectiveness”; prisoners simply “must exhaust such administrative
remedies as are available, whatever they may be.” (citations and internal quotation marks omitted)
Alexander v. Tippah Cnty., Miss., 351 F.3d 626, 630 (5th Cir. 2003). The Supreme Court has held
that the exhaustion requirement mandates “proper exhaustion,” which means compliance with prison
procedural rules and deadlines. Woodford, 548 U.S. at 92-93. Furthermore, substantial compliance
with administrative procedures is insufficient to permit pursuit of a federal lawsuit. Wright v.
Hollingsworth, 260 F.3d 357, 358 (5th Cir. 2001). Unless the prisoner pursues his “grievance
remedy to conclusion,” he has not exhausted “available remedies.” Id.
When a prisoner fails to exhaust his administrative remedies prior to filing suit without a
valid excuse, a court properly dismisses the action without prejudice to its refiling after the prisoner
exhausts his administrative remedies. See Wendell v. Asher, 162 F.3d 887, 890-91 (5th Cir. 1998).
In his Complaint, Magee states that he did not present the facts relating to his Complaint in
the prisoner grievance procedure because “Washington Parish Jail do not [sic] have a grievance
procedure.” (R. Doc. 1, p. 4.) However, it is clear from Warden Topps’ submission that a grievance
procedure was in place before Magee was incarcerted, during his incarcertation, and prior to the
filing of his Complaint. Warden Topps has provided a copy of the document which put the policy
into place. According to the document, which was signed by both Sheriff Crowe and Warden
Topps, a written grievance procedure exists for the Washington Parish Jail Complex “that is
available to all inmates that includes at least two (2) levels of appeal. This policy is a viable
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complaint process that is available to allow systematic redress of conditions relating to
confinement.” (R. Doc. 65-4, p. 3.)
According to the evidence, the policy was signed by both Sheriff Crowe and Warden Topps
on July 1, 2008. It is not disputed that Magee was incarcerated in the prison on November 13, 2008,
after the grievance procedure was put into place. It is also uncontested that Magee did not file his
Complaint until January 12, 2009, after the grievance was put into place. Because a grievance
procedure existed, and Magee, by his own admission did not file a grievance, Magee failed to
exhaust his administrative remedies prior to filing the above captioned action in contravention of
the PRLA.
To the degree that Magee was unaware of the grievance procedure available to him, this is
irrelevant to the instant matter. Ignorance of the grievance rules does not excuse a prisoner’s
noncompliance. Accord, Aguirre v. Dyer, 233 Fed. Appx. 365, 366 (5th Cir. May 24, 2007)(holding
that an inmate failed to exhaust where he failed to file a step-two grievance because his step-one
grievance was referred to the Internal Affairs Division) (citing Fisher v. Johnson, 174 F.3d 710, 714
(5th Cir. 1999). Because it is readily apparent that Magee failed to exhaust his administrative
remedies before filing his Complaint, Warden Topp’s Motion for Summary Judgment is granted.
V.

Costs
With respect to Warden Topp’s requests for fees, Fed.R.Civ.P. 54(d)(1) provides that, “[u]nless

a federal statute, these rules, or a court order provides otherwise, costs–other than attorney’s
fees–should be allowed to the prevailing party.” Rule 54(d) creates a strong presumption that the
prevailing party will be awarded costs. Schwarz v. Folloder, 767 F.2d 125, 131 (5th Cir. 1985).
Because Magee, the losing party, is proceeding pro se and in forma pauperis, and presumably does

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not have the means to pay costs, the court does not believe that the imposition of costs against him is
warranted. Accordingly, the parties shall bear their own respective costs.

VI.

Conclusion
Accordingly,
IT IS ORDERED that Warden Demille Topp’s Motion for Summary Judgment (R. Doc.

65) is hereby GRANTED and Jimmy W. Magee’s claim against the Defendant is DISMISSED
WITHOUT PREJUDICE and each party to bear their own costs.
New Orleans, Louisiana, this 13th day of April, 2011.

____________________________________
KAREN WELLS ROBY
UNITED STATES MAGISTRATE JUDGE

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