Mitchell v. Goings, et al
ORDERED that Plaintiff's 108 Motion for Leave to File Opposition Out of Time and Plaintiff's 116 Motion for Leave to Supplement Opposition are GRANTED. FURTHER ORDERED that Defendant Brink Hillman's 95 Renewed Motion to Dismiss for Plaintiff's Failure to Exhaust Administrative Remedies; the 97 Motion to Dismiss on Behalf of Defendant, John Crain; and the 98 Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) filed by Defendant Sergeant Gary King are GRANTED. F URTHER ORDERED that the 103 Motion for Summary Judgment on Behalf of Defendants Robert Goings, the State of Louisiana Through the Department of Public Safety and Corrections, and Warden Robert Tanner is GRANTED. All other motions are DISMISSED WITH OUT PREJUDICE AS MOOT. (Rec. docs. 104 , 105 , 106 ) IT IS FURTHER ORDERED that, no later than September 30, 2022, Plaintiff's counsel file into the record a memorandum explaining the provenance of the language discussed above that counsel attributed to §325 (J)(2)(a) or (4) of the Louisiana Administrative Code but that Court finds does not exist. Signed by Magistrate Judge Michael North on 9/19/2022. (jls)
Case 2:20-cv-01333-MBN Document 131 Filed 09/19/22 Page 1 of 14
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SGT. ROBERT GOINGS, ET AL.
Before the Court are three motions to dismiss: (1) Defendant Brink Hillman’s
Renewed Motion to Dismiss for Plaintiff’s Failure to Exhaust Administrative Remedies (Rec.
Doc. 95); the Motion to Dismiss on Behalf of Defendant, John Crain (Rec. doc. 97) 1; and the
Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) (Rec. doc. 98) filed by Defendant,
Sergeant Gary King. Also before the Court is the Motion for Summary Judgment on Behalf
of Defendants Robert Goings, the State of Louisiana Through the Department of Public
Safety and Corrections (“Louisiana”), and Warden Robert Tanner. (Rec. doc. 103). All four
motions are opposed in one opposition memorandum. (Rec. doc. 108-3).
Also before the Court is Plaintiff’s Motion to Compel Discovery Responses (Rec. doc.
104) (opposed by Hillman (Rec. doc. 109) and King and Hillman (Rec. doc. 112)); his
Motion to Compel Discovery Responses (Rec. doc. 105) (opposed by Goings, Louisiana, and
Tanner (Rec. doc. 113)); and his Motion for Limited Discovery on ARP Process (Rec. doc.
106) (opposed by all Defendants (Rec. docs. 111, 112, and 114)). In addition, Plaintiff’s
Motion for Leave to File Opposition Out of Time (Rec. doc. 108) and his Motion for Leave to
Supplement Opposition (Rec. doc. 116) are before the Court. Having reviewed this overabundance of pleadings and the case law, the Court rules as follows.
There is some discrepancy in the record as to whether Defendant’s last name is spelled “Crain” or “Craine.”
This Court uses the spelling referred to in the specific motions.
Case 2:20-cv-01333-MBN Document 131 Filed 09/19/22 Page 2 of 14
Through counsel, Gator Mitchell, Plaintiff herein and a former inmate at the B.B.
“Sixty” Rayburn Correctional Center (“RCC”) in Angie, Louisiana, originally filed this matter
in forma pauperis in the Twenty-Second Judicial District Court for the Parish of Washington,
State of Louisiana, asserting causes of action under 42 U.S.C. § 1983 and state law in
connection with an incident of alleged use of excessive force that occurred at RCC on
January 13, 2019. (Rec. docs. 1-2; 19-1). He was an inmate at RCC when he filed this
lawsuit but was thereafter released from custody at that facility 2 and transferred to
Escambia County, Florida, where he is currently being held. The case was thereafter
removed to this Court on the basis of federal question jurisdiction under 28 U.S.C. § 1331.
(Rec. doc. 1). In due course, after a flurry of motions were filed by all parties, they
consented to the jurisdiction of the undersigned. (Rec. doc. 51).
After screening Plaintiff’s complaint under 28 U.S.C. § 1915(g), this Court dismissed
Plaintiff’s complaint as barred by the three strikes provision of that statute. (Rec. doc. 63).
Plaintiff moved for reconsideration (Rec. doc. 64), and this Court denied that motion. (Rec.
Plaintiff then appealed (Rec. doc. 79), and the Fifth Circuit reversed and
remanded. (Rec. doc. 91-2). Crucially, the Fifth Circuit stated:
2 In his opposition brief, Plaintiff alleges that “That fact is material in this case, because, just like DENNIS
BARGHER, at the time of the Appeal, Mandate and remand, GATOR MITCHELL was no longer required to
exhaust administrative remedies, because he too had been released from the Louisiana Department of
Corrections after suit was filed. GATOR MITCHELL is not at this time a DOC inmate. The PLRA does not now
apply to this case.” (Rec. doc. 108-3 at p. 3). Plaintiff’s counsel’s argument is factually incomplete and
misleading. While Plaintiff was technically released from RCC, he was released to Escambia County, Florida,
where a detainer existed for his arrest. He remains in custody to this day and Plaintiff’s counsel has failed to
address the impact of his incarceration in another state on his obligation to fully exhaust administrative
remedies here. And, as he is in custody in Florida, counsel’s statement that “[t]he PLRA does not now apply to
this case” is clearly incorrect.
Case 2:20-cv-01333-MBN Document 131 Filed 09/19/22 Page 3 of 14
The record here is devoid of any findings regarding exhaustion. Indeed, the
issue of exhaustion was in discovery by the parties when this appeal
occurred. As Mitchell suggests, remand is required to determine this
(Rec. doc. 91-2 at p. 7).
Standards of Review
Motion to Dismiss
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows a party to move for
dismissal of a complaint for failure to state a claim upon which relief can be granted. Such a
motion is rarely granted because it is viewed with disfavor. See Lowrey v. Tex. A & M Univ.
Sys., 117 F.3d 242, 247 (5th Cir. 1997) (quoting Kaiser Aluminum & Chem. Sales, Inc. v.
Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982)).
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a pleading must contain
a “short and plain statement of the claim showing that the pleader is entitled to relief.”
Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) (citing Fed. R. Civ. P. 8). “[T]he pleading
standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands
more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. at 678
(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
In considering a Rule 12(b)(6) motion, the Court “accept[s] all well-pleaded facts as
true and view[s] all facts in the light most favorable to the plaintiff.” See Thompson v. City of
Waco, Tex., 764 F.3d 500, 502 (5th Cir. 2014) (citing Doe ex rel. Magee v. Covington Cnty.
Sch. Dist. ex rel. Keys, 675 F.3d 849, 854 (5th Cir. 2012) (en banc)). But, in deciding whether
dismissal is warranted, the Court will not accept conclusory allegations in the complaint as
true. Id. at 502-03 (citing Iqbal, 556 U.S. at 678).
Case 2:20-cv-01333-MBN Document 131 Filed 09/19/22 Page 4 of 14
To survive dismissal, “‘a complaint must contain sufficient factual matter, accepted
as true, to state a claim to relief that is plausible on its face.’” Gonzalez v. Kay, 577 F.3d 600,
603 (5th Cir. 2009) (quoting Iqbal, 556 U.S. at 678) (internal quotation marks omitted).
“Factual allegations must be enough to raise a right to relief above the speculative level, on
the assumption that all the allegations in the complaint are true (even if doubtful in fact).”
Twombly, 550 U.S. at 555 (citations and footnote omitted). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678
(“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more
than a sheer possibility that a defendant has acted unlawfully.”). This is a “context-specific
task that requires the reviewing court to draw on its judicial experience and common
Id. at 679. “Where a complaint pleads facts that are merely consistent with a
defendant's liability, it stops short of the line between possibility and plausibility of
entitlement to relief.” Id. at 678 (internal quotations omitted) (citing Twombly, 550 U.S. at
557). “[A] plaintiff's obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’,” thus,
“requires more than labels and conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Twombly, 550 U.S. at 555 (alteration in original) (citation
Finally, “[w]hen reviewing a motion to dismiss, a district court ‘must consider the
complaint in its entirety, as well as other sources ordinarily examined when ruling on Rule
12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by
reference, and matters of which a court may take judicial notice.’” Funk v. Stryker Corp.,
631 F.3d 777, 783 (5th Cir. 2011) (quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551
Case 2:20-cv-01333-MBN Document 131 Filed 09/19/22 Page 5 of 14
U.S. 308, 322 (2007)). If the Court considers materials outside of the pleadings, the motion
to dismiss must be treated as a motion for summary judgment under Rule 56. See Causey v.
Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004); Phoenix on behalf of S.W. v.
Lafourche Par. Gov't, No. CV 19-13004, 2021 WL 184909, at *3-4 (E.D. La. Jan. 19, 2021); see
also Fed. R. Civ. P. 12(d).
Motion for Summary Judgment
Summary judgment is proper “if 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 a
judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed.
R. Civ. P. 56(c)). “Rule 56(c) mandates the entry of summary judgment, after adequate time
for discovery and upon motion, against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party's case, and on which the party
will bear the burden of proof at trial.” Id. A party moving for summary judgment bears the
initial burden of demonstrating the basis for summary judgment and identifying those
portions of the record, discovery, and any affidavits supporting the conclusion that there is
no genuine issue of material fact. Id. at 323. If the moving party meets that burden, then
the nonmoving party must use evidence cognizable under Rule 56 to demonstrate the
existence of a genuine issue of material fact. Id. at 324.
A genuine issue of material fact exists if a reasonable jury could return a verdict for
the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The
substantive law identifies which facts are material. Id. Material facts are not genuinely
disputed when a rational trier of fact could not find for the nonmoving party upon a review
Case 2:20-cv-01333-MBN Document 131 Filed 09/19/22 Page 6 of 14
of the record taken as a whole. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986); Equal Emp't Opportunity Comm'n v. Simbaki, Ltd., 767 F.3d 475, 481 (5th
Cir. 2014). “[U]nsubstantiated assertions,” “conclusory allegations,” and merely colorable
factual bases are insufficient to defeat a motion for summary judgment. See Anderson, 477
U.S. at 249-50; Hopper v. Frank, 16 F.3d 92, 97 (5th Cir. 1994). In ruling on a summary
judgment motion, a court may not resolve credibility issues or weigh evidence. See Delta &
Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008).
Further, a court must assess the evidence, review the facts, and draw any appropriate
inferences based on the evidence in the light most favorable to the party opposing
summary judgment. See Tolan v. Cotton, 572 U.S. 650, 656 (2014); Daniels v. City of
Arlington, 246 F.3d 500, 502 (5th Cir. 2001). Yet a court only draws reasonable inferences
in favor of the nonmovant “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) (citing Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990)).
After the movant demonstrates the absence of a genuine dispute, the nonmovant
must articulate specific facts and point to supporting, competent evidence that may be
presented in a form admissible at trial. See Lynch Props., Inc. v. Potomac Ins. Co. of Ill., 140
F.3d 622, 625 (5th Cir. 1998); Fed. R. Civ. P. 56(c)(1)(A) & (c)(2). Such facts must create
more than “some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586.
When the nonmovant will bear the burden of proof at trial on the dispositive issue, the
moving party may simply point to insufficient admissible evidence to establish an essential
element of the nonmovant's claim in order to satisfy its summary judgment burden. See
Celotex, 477 U.S. at 322-25; Fed. R. Civ. P. 56(c)(B). Unless there is a genuine issue for trial
Case 2:20-cv-01333-MBN Document 131 Filed 09/19/22 Page 7 of 14
that could support a judgment in favor of the nonmovant, summary judgment must be
granted. See Little, 37 F.3d at 1075-76.
Law and Analysis: The Motions to Dismiss and the Motion for Summary
All three motions to dismiss and the motion for summary judgment are based on
Plaintiff’s failure to exhaust his administrative remedies. Indeed, Craine and King adopt
Hillman’s arguments from his motion to dismiss in extenso.
In Johnson v. Tanner, No. Civ. A. 14-0902, 2015 WL 3651369, at *3 (E.D. La. June 11,
2015), this Court summarized Louisiana law on its administrative remedy process:
The Fifth Circuit has characterized exhaustion of prison administrative
remedies as a “threshold issue” that must be addressed “. . . to determine
whether litigation is being conducted in the right forum at the right time.”
Dillon v. Rogers, 596 F.3d 260, 272 (5th Cir. 2010). Under 42 U.S.C. §
1997e(a), an inmate is required to exhaust available prison administrative
remedies before bringing suit. That statute, which was enacted in 1996 as
part of the Prison Litigation Reform Act (“PLRA”), provides that “[n]o 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). The exhaustion requirement applies to
all inmate suits about prison life, whether they involve general circumstances
or particular episodes, and whether they allege excessive force or some other
wrong. Clifford v. Gibbs, 298 F.3d 328, 329 (5th Cir. 2002) (citing Porter v.
Nussle, 534 U.S. 516 (2002)). Exhaustion must be proper and in full
compliance with applicable prison procedural rules and deadlines;
substantial compliance with administrative procedures is insufficient. Guy v.
LeBlanc, No. 13-CV-2792 c/w 13-CV-5033, 2015 WL 65303 at *9 (E.D. La. Jan.
5, 2015) (citing Wright v. Hollingsworth, 260 F.3d 357, 358 (5th Cir. 2001)).
Exhaustion of administrative remedies is essentially a condition precedent to
bringing suit. Gonzalez v. Seal, 702 F.3d 785, 788 (5th Cir. 2012). “Pre-filing
exhaustion is mandatory, and the case must be dismissed if available
administrative remedies were not exhausted.” Id. (emphasis added).
As RCC is a correctional facility under the auspices of the Louisiana
Department of Corrections, the inmates who are housed there are required
to follow a two-step process prior to filing suit. LSA–R.S. 15:1172. At the
first step, the inmate initiates the process by submitting a letter (“grievance”)
to the warden briefly setting out the basis for his claim and the relief sought
within 90 days of the alleged event or incident complained of. Campfield v.
Case 2:20-cv-01333-MBN Document 131 Filed 09/19/22 Page 8 of 14
Tanner, No. 10-CV-1151, 2011 WL 4368723 at *2 (E.D. La. Aug. 16, 2011),
adopted with modification, 2011 WL 4368842 (E.D. La. Sept. 19, 2011);
Francois v. Rigdon, No. 09-CV-4505, 2009 WL 4891828 at *3 (E.D. La. Dec.9,
2009). The warden then has 40 days within which to respond to the
grievance. (Id.). If the warden does not respond within that time frame or if
he does so but the inmate is dissatisfied with the response, the inmate may
proceed to the second step by requesting review of the matter by the
Secretary of the Louisiana Department of Public Safety and Corrections. Id.
The Secretary has 45 days to respond to that request for review. Id.
Hillman filed a prior motion to dismiss the Amended Complaint on May 26, 2020.
(Rec. doc. 23). Plaintiff filed an opposition to that motion to dismiss on June 23, 2020.
(Rec. doc. 41). As part of his opposition, Plaintiff attached a Declaration Under Penalty of
Perjury, which states that he sent two Administrative Remedies Procedures (“ARPs”) to
Warden Tanner’s office on February 5, 2019. (Re. doc. 41-1 at p. 1). He stated that he sent
a letter to the Warden on May 8, 2019, asking for the status of the ARPs but did not hear
back. (Id.). He stated that he has “never been able to determine the status of the ARP”
which he attached to his Declaration Under Penalty of Perjury. (Id.). Crucially, for the
purpose of these motions, Plaintiff does not allege that he proceeded to the second step of
the ARP review process by requesting review by the Secretary of the Louisiana Department
of Public Safety and Corrections after the Warden failed to respond to his ARP.
The Fifth Circuit has held:
Louisiana's Administrative Remedy Procedure has two steps, and a prisoner
has not exhausted his remedies until he has completed both. See Dillon v.
Rogers, 596 F.3d 260, 265-66 (5th Cir. 2010). A prisoner first submits a
request to the warden briefly setting out the basis for the claim and the relief
sought – these are the “ARPs” discussed at length above. Id. at 265. The
warden then has 40 days to respond. Id. at 265-66. If the inmate is
dissatisfied with the warden's response, or no response is received within the
40-day time period, the inmate may proceed to the second step and appeal to
the Secretary of the Louisiana Department of Public Safety and Corrections.
Id. at 266. Critically, a prisoner who does not receive a timely response to his
initial ARP is not prevented from filing a second-step ARP. See id.; LA. ADMIN.
Case 2:20-cv-01333-MBN Document 131 Filed 09/19/22 Page 9 of 14
CODE tit. 22, pt. I, § 325(J)(1)(c) (“expiration of response time limits shall
entitle the offender to move on to the next step in the process.”).
Bargher v. White, 928 F.3d 439, 447 (5th Cir. 2019) (emphasis added).
Plaintiff acknowledges that he never proceeded to the second step of the grievance
process but instead incorrectly contends that the second step was not available until the
prison responded to his first-step grievance. However, when prison officials failed to timely
respond to his first-step grievance, Plaintiff was entitled under § 325(J)(1)(c) to proceed to
the second step. See Dillon, 596 F.3d at 266. Because Plaintiff filed his Section 1983
complaint before he completed the administrative grievance process, Plaintiff failed to
exhaust the required administrative remedies before bringing this suit while incarcerated.
Plaintiff’s arguments to the contrary are dubious at best and misrepresentations at
worst. Plaintiff argues that the second step of the ARP process was unavailable to him
because prison officials had not responded to his first-step ARP. That argument is belied by
the Fifth Circuit precedent quoted above. The ARP process is complete only when the
inmate receives the prison official's Second Step Response. Pettis v. Hall, No. 1:19CV357RPM, 2021 WL 785097, at *2 (S.D. Miss. Mar. 1, 2021) (citing Gross v. Hall, No. 3:17-cv-494-
CWR-FKB, 2019 WL 4397347, at *2 (S.D. Miss. Aug. 2, 2019)). That never happened here as
Plaintiff never took advantage of the second step when he clearly could have, having
received no response on his first-step ARP. See Bargher, 928 F.3d at 447; (Rec. doc. 41-1 at
p. 1). That much is clear under the case law, which should be familiar to his counsel. The
cases upon which Plaintiff relies are inapposite. For example, in Collin v. Vannoy, 169 So. 3d
405, 406 (La. Ct. App. 2015), the Court specifically noted that when the plaintiff had not
received a response to his first-step ARP, he had proceeded to the second step of the
administrative review process. That was not the case here.
Case 2:20-cv-01333-MBN Document 131 Filed 09/19/22 Page 10 of 14
Plaintiff also argues that after remand, Plaintiff refiled his lawsuit, was not a
prisoner at that time, and thus did not need to exhaust available administrative remedies.
Plaintiff misunderstands the working of the federal courts. Plaintiff never refiled his
lawsuit; it was merely reopened at the time of remand. The only operative complaints are
those in this lawsuit that Plaintiff filed while incarcerated. Plaintiff was a prisoner at the
time that he filed this lawsuit, and he thus had to exhaust his administrative remedies.
Under 42 U.S.C. § 1997e(a), “a prisoner confined in any jail, prison, or other correctional
facility” must exhaust remedies prior to bring suit. Plaintiff was incarcerated when he
brought this suit, and the Fifth Circuit has held, following the Supreme Court, that whatever
remedies are “available” must be exhausted before a prisoner's suit may be filed in federal
court. Wright v. Hollingsworth, 260 F.3d 357, 358 (5th Cir. 2001). Plaintiff’s release – and
subsequent and immediate incarceration in Florida – during the pendency of the suit does
not relieve him of the obligation to comply with 42 U.S.C. § 1997e. Williams v. Henagan,
595 F.3d 610, 619 (5th Cir. 2010); Dixon v. Page, 291 F.3d 485, 488-89 (7th Cir. 2002);
Harris v. Garner, 216 F.3d 970, 972 (11th Cir. 2000) (en banc).
Plaintiff, through counsel, makes an additional, rather bizarre argument in an
attempt to distinguish this case from the clear holding of the Bargher case. Arguing that the
Bargher decision is inapposite to the facts of this case, counsel claims that Defendant,
Hillman, “overlooked the fact that the regulation was amended in 2019 and he did not
address the form requirements in the regulation that prohibited GATOR MITCHELL from
moving forward on his claim, when his ARPs were never accepted for processing.” (Rec.
doc. 108-3 at 3)(emphasis added). She goes on to argue that
Mr. Hillman did not address the Administrative Regulations 2019 - that apply to this case. In Bargher, the Fifth Circuit
Case 2:20-cv-01333-MBN Document 131 Filed 09/19/22 Page 11 of 14
(Id. at 3-4).
found that Bargher could have proceeded to the next step even
though his June ARP was never processed. A review of the
Louisiana Department of Corrections regulation in place at the
time that were binding on the RLCC and GATOR MITCHELL
reveal that GATOR MITCHELL could not proceed to First or
Second Step, due to the fact that his ARP was never accepted
for processing, the First Step never issued, which, due to the
form requirements, prohibited GATOR MITCHELL from
reaching 2nd step. Under the Louisiana Administrative Code
Title 22, Part 1, §325, proceeding from 1st step to 2nd step is
form specific. The Rules require that a specific form be used to
appeal from the Rayburn Correctional Center’s finding (1st
step) to the Secretary of the Department of Corrections, which
issues the 2nd step.
Counsel seems to be implying that Bargher can be distinguished from this case
because of some “form-specific” amendment to the applicable regulation that was made in
2019. This argument is wrong on many levels.
First and foremost, the important language upon which the Fifth Circuit relied in
Bargher has not changed since that Court’s holding. Note this language from the Bargher
Bargher acknowledges that he never proceeded to the second
step of the grievance process, but instead incorrectly contends
that the second step was not available until the prison
responded to his first-step grievance. However, when prison
officials failed to timely respond to his first-step grievance,
Bargher was entitled under § 325(J)(1)(c) to proceed to the
second step. Because Bargher thus filed his § 1983 complaint
prior to the completion of the administrative grievance
process, the district court properly found that Bargher failed to
exhaust the required administrative remedies before bringing
this suit while incarcerated.
Bargher, 928 F.3d at 447.
This language is worthy of two observations in the context of Plaintiff’s argument.
First, substituting “Mitchell” for “Bargher” in the foregoing passage would exactly describe
Case 2:20-cv-01333-MBN Document 131 Filed 09/19/22 Page 12 of 14
the state of affairs in this case. Second, the provision relied upon by the Fifth Circuit,
§325(J)(1)(c), has not changed at all since that Court’s decision. It is exactly the same and
for that reason the result in Bargher must, on these facts, be the same. 3
A final observation (and a troubling one at that). In apparently attempting to
convince the Court that there is some “new” form-specific requirement that takes Mitchell’s
case out of the Bargher realm, counsel included in brief a quote that apparently doesn’t
exist (or at least this Court cannot find it anywhere). Citing what she says is Louisiana
Administrative Code (2019) 22:I:325 (J)(2)(a) and (4), counsel quotes the following
4. Deadlines and Time Limits. No more than 90 days from the
initiation to completion of the process shall elapse, unless an
extension has been granted. Absent such an extension,
expiration of response time limits shall entitle the offender to
move on to the next step in the process. Time limits begin on
the date the request is assigned to a staff member for the
first step response (Form B-05-005-ARP-2).
(Rec. doc. 108-3 at 7)(emphasis in original).
The Court is troubled by this “quotation” for a couple of reasons. First, there is no §
325 (J)(2)(a) or (4) in the Administrative Code. Perhaps that explains the second problem
– the bold-faced language quoted above does not exist anywhere in § 325 or in all of Title
22 of the Code, for that matter. It appears to have been manufactured. The Court will set a
separate briefing schedule and hearing for counsel to explain this anomaly.
In the end, no amount of discovery by Plaintiff can cure his failure to exhaust. The
exhaustion of administrative remedies is governed by both the Louisiana statutes and
federal case law. No discovery need be conducted on a legal issue, despite Plaintiff’s
Compare La. Register39:2779 (Oct. 2013) with La. Register 45:672 (May 2019).
Case 2:20-cv-01333-MBN Document 131 Filed 09/19/22 Page 13 of 14
protestations to the contrary. Plaintiff simply fails to allege that he ever took advantage of
the second step of the ARP procedure and it is clear that he did not. (Rec. doc 41-1 at p. 1).
He only alleges that he was never able to determine the status of his first ARP. (Id.).
However, that does not excuse his failure to proceed to the second step – as outlined by the
case law above. Accordingly, whether analyzed under the standard for a motion to dismiss
or that of a motion for summary judgment, the Court finds that Plaintiff’s claims should be
dismissed, and summary judgment should be granted to Defendants who filed that specific
For the foregoing reasons,
The Court finds that dismissal of Plaintiff’s claims without prejudice against all
Defendants is warranted.
IT IS ORDERED that Plaintiff’s Motion for Leave to File Opposition Out of Time (Rec.
doc. 108) and Plaintiff’s Motion for Leave to Supplement Opposition (Rec. doc. 116) are
IT IS FURTHER ORDERED that Defendant Brink Hillman’s Renewed Motion to
Dismiss for Plaintiff’s Failure to Exhaust Administrative Remedies (Rec. Doc. 95); the
Motion to Dismiss on Behalf of Defendant, John Crain (Rec. doc. 97); and the Motion to
Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) (Rec. doc. 98) filed by Defendant Sergeant Gary
King are GRANTED.
IT IS FURTHER ORDERED that the Motion for Summary Judgment on Behalf of
Defendants Robert Goings, the State of Louisiana Through the Department of Public Safety
and Corrections, and Warden Robert Tanner. (Rec. doc. 103) is GRANTED.
Case 2:20-cv-01333-MBN Document 131 Filed 09/19/22 Page 14 of 14
All other motions are DISMISSED WITHOUT PREJUDICE AS MOOT.
IT IS FURTHER ORDERED that, no later than September 30, 2022, Plaintiff’s
counsel file into the record a memorandum explaining the provenance of the language
discussed above that counsel attributed to §325 (J)(2)(a) or (4) of the Louisiana
Administrative Code but that Court finds does not exist.
New Orleans, Louisiana, this 19th day of
MICHAEL B. NORTH
UNITED STATES MAGISTRATE JUDGE
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