Roop v. Itawamba County et al

Filing 63

MEMORANDUM OPINION. Signed by Senior Judge Neal B. Biggers on 4/13/18. (cr)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION
MILFORD LEE ROOP

PLAINTIFF

v.

No. 1:17CV24-NBB-JMV

ITAWAMBA COUNTY
CHRIS DICKINSON
ITAWAMBA COUNTY JAIL JAILERS

DEFENDANTS

MEMORANDUM OPINION
This matter comes before the court on the pro se prisoner complaint of Milford Lee Roop,
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.
The plaintiff has brought the instant case under 42 U.S.C. § 1983, which 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. He alleges
that the defendants used excessive force against him during his stay at the Itawamba County Jail and,
on several occasions, failed to provide him with adequate medical treatment. The defendants have
moved for summary judgment on all issues; the plaintiff has not responded, and the deadline to do so
has expired. For the reasons set forth below, the defendants’ motion for summary judgment will be
granted, and the instant case with be dismissed 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

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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).
The Plaintiff’s Allegations
Mr. Roop claims that on December 11 or December 18, 2015, he had very bad chest pains –
and that defendant Greg Wilemon would not call the emergency medical services to examine him.
Mr. Roop alleges that, instead, another jailer called emergency services, and the jail officer who drove
him traveled no more than 20 mph on the way to the emergency room. Mr. Roop alleges further that
on December 12, 2015, Jailor Greg Wilemon choked him for three or four minutes, then pushed him
down in his cell – aggravating chest pains that he had felt the day before. Mr. Roop alleges that on
December 29, 2015, Greg Wilemon would not dispense Roop’s diabetic medication to him or check
his blood sugar levels. He also claims that no one gave him his prescribed snacks. Finally, Mr. Roop
alleges that Greg Wilemon would not permit him to have prescribed medications for the first 14 of his
stay at the Itawamba County Jail. Mr. Roop states that he did, however, see a doctor after the first 14
days and received his previously-prescribed medications, other than Plavix.
Exhaustion of Administrative Remedies
Congress enacted the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. §1997e et seq.
– including its requirement that inmates exhaust their administrative remedies prior to filing suit
– in an effort to address the large number of prisoner complaints filed in federal courts. See
Jones v. Bock, 549 U.S. 199, 202 (2007). Congress meant for the exhaustion requirement to be
an effective tool to help weed out the frivolous claims from the colorable ones:
Prisoner litigation continues to ‘account for an outsized share of filings’ in federal
district courts. Woodford v. Ngo, 548 U.S. 81, 94, n. 4, 126 S.Ct. 2378 (2006) (slip op.,
at 12, n.4). In 2005, nearly 10 percent of all civil cases filed in federal courts
nationwide were prisoner complaints challenging prison conditions or claiming civil
rights violations. Most of these cases have no merit; many are frivolous. Our legal
system, however, remains committed to guaranteeing that prisoner claims of illegal
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conduct by their custodians are fairly handled according to law. The challenge lies in
ensuring that the flood of non-meritorious claims does not submerge and effectively
preclude consideration of the allegations with merit. See Neitzke v. Williams, 490 U.S.
319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
Congress addressed that challenge in the PLRA. What this country needs, Congress
decided, is fewer and better prisoner suits. See Porter v. Nussle, 534 U.S. 516, 524,
122 S.Ct. 983, 152 L.Ed.2d 12 (2002) (PLRA intended to “reduce the quantity and
improve the quality of prisoner suits”). To that end, Congress enacted a variety of
reforms designed to filter out the bad claims and facilitate consideration of the good.
Key among these was the requirement that inmates complaining about prison
conditions exhaust prison grievance remedies before initiating a lawsuit.
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 prior to 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); see also
Johnson v. Ford, 261 F. App’x 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).

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The requirement that claims be exhausted prior to the filing of a lawsuit is mandatory and
non-discretionary. 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. The Supreme Court has also recognized the need for a prisoner to 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.
The Itawamaba County Jail has a grievance process – which Mr. Roop used on three
occasions: February 27, 2016, June 13, 2016, and July 8, 2016. See ECF Doc. 38-3 at 38, 64,
70. Based upon the administrative records provided by the defendants, Mr. Roop filed only
those three grievances during his stay at the jail. All of the grievances address the same subject:
the return of various commissary items allegedly taken from him on February 15, 2016. None of
them involve any of Mr. Roop’s claims in the instant case. Thus, Mr. Roop has not exhausted
his administrative remedies as to any of the claims in this case, which will be dismissed without
prejudice for that reason.

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Conclusion
For the reasons set forth above, the instant case will be dismissed without prejudice for failure
to exhaust administrative remedies.
SO ORDERED, this, the 12th day of April, 2018.
/s/ Neal Biggers
NEAL B. BIGGERS
SENIOR U. S. DISTRICT JUDGE

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