Ewing v. Keaton et al
Filing
20
MEMORANDUM OPINION. Signed by District Judge Sharion Aycock on 2/10/15. (cr)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
RICKEY RONNELL EWING
PLAINTIFF
v.
No. 4:14CV98-SA-DAS
LOUIS KEATON, ET AL.
DEFENDANTS
MEMORANDUM OPINION
This matter comes before the court on the pro se prisoner complaint of Ricky Ronnell Ewing
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 defendants have moved [15] to dismiss the complaint for failure to exhaust administrative
remedies. Ewing has not responded to the motion, and the deadline to do so has expired. For the
reasons set forth below, the defendants motion [15] to dismiss will be granted and the case dismissed
for failure to exhaust administrative remedies.
Exhaustion of Administrative Remedies
Although exhaustion of administrative remedies is an affirmative defense, normally to be pled
by a defendant, the court may dismiss a pro se prisoner case if failure to exhaust is apparent on the
face of the complaint. Carbe v. Lappin, 492 F.3d 325 (5th Cir. 2007). 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). The administrative remedy program (“ARP”) in place at the Mississippi
Department of Corrections (“MDOC”) facilities, including the facilities at the Marshall County
Correctional Facility, has been approved by this court in Gates v. Collier, GC 71-6-S-D (N.D. Miss.
1971) (order dated February 15, 1994). A district court may dismiss a lawsuit if the plaintiff fails to
complete the ARP. Underwood v. Wilson, 151 F.3d 292, 293 (5th Cir. 1998), cert. denied, 119 S. Ct.
1809, 143 L. Ed. 2d 1012 (1999) (quoting Rocky v. Vittorie, 813 F.2d 734, 736 (5th Cir. 1987)). While
the exhaustion requirement is not jurisdictional, id. at 293-95, “[a]bsent a valid defense to the
exhaustion requirement, the statutory requirement enacted by Congress that administrative remedies
must be exhausted before the filing of suit should be imposed.” Wendell v. Asher, 162 F.3d 877, 89091 (5th Cir. 1998); Smith v. Stubble field, 30 F.Supp. 2d 1168, 1170 (E.D. Mo. 1998). “To hold
otherwise would encourage premature filing by potential litigants, thus undermining Congress’
purpose in passing the PLRA, which was to provide the federal courts some relief from frivolous
prisoner litigation.” Wendell, 162 F.3d at 981 (citations omitted).
Ewing alleges that the defendants attacked him on September 10, 2013, in an attempt to
recover contraband he had placed in his rectum. He also alleges that the defendants have denied him
adequate medical treatment for an injury to his eye that he claims resulted from the attack. These
claims must be dismissed for failure to exhaust administrative remedies. Ewing filed the complaint in
this case on June 30, 2014. Ewing has not filed a grievance regarding the alleged attack, and, though
he did file a grievance regarding medical care for his eye, he did not complete the grievance process
until September 9, 2014, after he filed the instant complaint. Thus, as set forth above, the instant case
must be dismissed for failure to exhaust administrative remedies. A final judgment consistent with
this memorandum opinion will issue today.
SO ORDERED, this the 10th day of February, 2015.
/s/ Sharion Aycock_________
U.S. DISTRICT JUDGE
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