Harris v. Cabe et al

Filing 105

ORDER granting 79 Motion to Dismiss; finding as moot 89 Motion to Dismiss; finding as moot 92 Motion for Summary Judgment. Signed by District Judge Debra M. Brown on 11/3/15. (jtm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
WILLIE J. HARRIS

PLAINTIFF

V.

NO. 4:13CV140-DMB-DAS

LORENZO CABE, ET AL.

DEFENDANTS

ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS
This matter is before the Court on the pro se prisoner complaint of Willie J. Harris, who
challenges the conditions of his confinement under 42 U.S.C. § 1983. The Court notes that, for the
purposes of the Prison Litigation Reform Act, Harris was incarcerated when he filed this suit. Among
other claims, Harris alleges that Defendants violated his right to the free exercise of religion by
denying him permission to attend various Muslim services. Doc. #1 at 6.
Defendants have moved to dismiss these claims for failure to exhaust administrative remedies.
Doc. # 79. In the same motion, Defendants have also moved to dismiss Defendant Faye Noel because
Harris did not seek to substitute a party for Noel within 90 days after Defendants filed a Suggestion of
Death under Fed. R. Civ. P. 25 on June 2, 2014. Harris has not responded to the instant motion to
dismiss, and the deadline to do so has expired. For the reasons below, Defendants’ motion to dismiss
Harris’ free exercise claims, as well as all claims against Defendant Noel, is granted.
Standard of Review
“To survive a motion to dismiss [under Fed. R. Civ. P. 12(b)(6)], a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007)). A claim for relief is plausible on its face “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. A claim for relief is implausible on its face when “the well-pleaded facts do
not permit the court to infer more than the mere possibility of misconduct.” Id. at 679.
I
Failure to Exhaust Administrative Remedies
The claims relevant to the instant motion to dismiss are those concerning denial of access to
religious services and discrimination based upon Harris’ religious beliefs. The Prison Litigation
Reform Act states, in pertinent part:
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).
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.
Under this statutory authority, the Mississippi Department of Corrections has 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. The ARP Program was
approved in the Northern District of Mississippi 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.
Nov. 6, 2000). On September 19, 2010, the ARP process was changed from three steps to two.
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 two-step ARP process begins when an inmate first submits his grievance 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
screens the grievance and determines whether to accept it into the ARP process. Id. If accepted,
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the grievance 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 response, he may continue
to the Second Step by completing an 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, or 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 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). Indeed, “[p]risoners must now exhaust all ‘available’ remedies, not
just those that meet federal standards.” Id. at 85. Under the Prison Litigation Reform Act, “a
prisoner must now exhaust administrative remedies even where the relief sought – monetary
damages – cannot be granted by the administrative process.” Id. (citing Booth v. Churner, 532
U.S. 731, 739 (2001)).
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” under the Prison Litigation Reform Act. Woodford, 548
U.S. at 83-84. See also Johnson v. Ford, 261 Fed. App’x 752, 755 (5th Cir. 2008) (Fifth Circuit
takes “a strict approach” to 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 PLRA, “the prisoner must not only pursue all available avenues
of relief; he must also comply with all administrative deadlines and procedural rules”).
As set forth in the affidavit of Richard Pennington, Director of the Administrative Remedy
Program at the Mississippi State Penitentiary, Harris did not file a grievance concerning his claims

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about access to religious services and discrimination based upon his religious beliefs. Doc. #79-1. As
such, these claims must be dismissed for failure to exhaust administrative remedies.
II
Suggestion of Death
On June 2, 2014, Defendants filed a Suggestion of Death under Fed. R. Civ. P. 25, notifying
the Court and the parties that Defendant Faye Noel passed away on May 24, 2014. Doc. #51. Under
the Federal Rules, when a party files a Suggestion of Death, the opposing party must seek to substitute
a different party within 90 days:
If a party dies and the claim is not extinguished, the court may order substitution of the
proper party. A motion for substitution may be made by any party or by the decedent’s
successor or representative. If the motion is not made within 90 days after service of
the statement noting the death, the action by or against the decedent must be
dismissed.
Fed. R. Civ. P. 25(a)(1). Harris has not filed a motion to substitute a party for Noel, and the deadline
to do so has expired. As such, Harris’ claims against Noel will be dismissed.
III
Conclusion
For the reasons above, Harris’ claims regarding denial of religious services and discrimination
against him for his religious beliefs are DISMISSED without prejudice for failure to exhaust
administrative remedies. In addition, Harris’ claims against Defendant Faye Noel are DISMISSED
with prejudice for failure to comply with Fed. R. Civ. P. 25(a)(1). Defendants’ pending motion for
summary judgment [92] and Harris’ pending motion to dismiss Defendants Carolyn Orr and Michele
Watson [89] are DISMISSED as moot.
SO ORDERED, this 3rd day of November, 2015.
/s/ Debra M. Brown
UNITED STATES DISTRICT JUDGE

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