Carroll v. Lee et al
MEMORANDUM OPINION re 34 Order Dismissing Case,. Signed by District Judge Michael P. Mills on 6/13/17. (jla)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
MICHAEL D. CARROLL
SUPERINTENDENT EARNEST LEE, ET AL.
This matter comes before the court on the pro se prisoner complaint of Michael D. Carroll,
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. The
plaintiff alleges that the defendants have failed to protect him from attack by other inmates, then
retaliated against him for seeking relief through the Administrative Remedy Program and other
channels. The defendants have moved  for summary judgment, arguing that the plaintiff did not
exhaust the grievance process before filing suit. The plaintiff has not responded to the motion, and the
deadline to do so has expired. For the reasons set forth below, the motion by the defendants for
summary judgment will be granted and the case dismissed for failure to exhaust administrative
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
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).
Undisputed Material Facts
Carroll alleges that he was attacked in the prison kitchen on April 15, 2016. He submitted a
handwritten grievance on April 18, 2016, regarding the assault to the Administrative Remedy
Program (ARP). See Ex. A1 at “Carroll 3.” However, under ARP procedures, Carroll’s grievance
regarding the assault could not be processed because Carroll had a backlog of previously filed
grievances. See Ex. A at “Carroll 5.” Carroll was told on April 26, 2016, that if he wished to
immediately pursue his latest grievance, then he must first withdraw, in writing, all pending
grievances. Id. Carroll did so and received his first step response to the assault grievance denying his
request on June 13, 2016 See Ex. A at “Carroll 7.” He appealed this denial to the second step on July
3, 2016. Id. Carroll then filed the instant suit on July 5, 2016. Doc. 1. Superintendent Lee then
denied relief on the second and final step of the grievance process on August 22, 2016, and Carroll
signed for receipt of the Second Step Response Form on August 26, 2016. See Ex. A at “Carroll 10.”
Exhaustion of Administrative Remedies
As set forth below, the instant case must be dismissed because Mr. Carroll did not
exhaust his administrative remedies prior to filing suit in federal court. 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). 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:
The exhibits mentioned in the instant memorandum opinion refer to those attached to the defendants’
motion for summary judgment.
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
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,
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.
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. This court approved the ARP
Program 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 a three steps to two. See Gates v. Barbour, No. 4:71CV6JAD, 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,
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.
In this case, Mr. Carroll filed suit on July 5, 2016; however, he did not complete the prison
grievance process until August 22, 2016, over a month later. Thus, he did not exhaust his
administrative remedies prior to filing suit, and the instant case will be dismissed for failure to exhaust
For the reasons set forth above, the motion by the defendants for summary judgment will be
granted, and the instant case will be dismissed for failure to exhaust administrative remedies. A final
judgment consistent with this memorandum opinion will issue today.
SO ORDERED, this, the 13th day of June, 2017.
/s/ MICHAEL P. MILLS
UNITED STATES DISTRICT JUDGE
NORTHERN DISTRICT OF MISSISSIPPI
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