Lafayette v. Fisher et al
ORDER ADOPTING in Part and Rejecting in Part REPORT AND RECOMMENDATIONS 10 ; Marshall Fisher, R. Pennington, and Sgt. Epps are DISMISSED; claims of denial of medical care and denial of due process due to loss of property are DISMISSED; claim of excessive force against Sgt. Crawford and Lt. Thigpen will PROCEED; claim of denial of due process as related to allow to utilize the administrative remedies program shall PROCEED. Signed by District Judge Debra M. Brown on 7/12/17. (cr)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
MARSHALL FISHER, et al.
On April 25, 2017, following a Spears1 hearing, United States Magistrate Judge David
A. Sanders issued a Report and Recommendation recommending that Anthony Lafayette’s
claims against Marshall Fisher, R. Pennington, and Sgt. Epps be dismissed; that Lafayette’s
claims of denial of medical care and denial of due process be dismissed; and that process issue
against Sgt. Crawford and Lt. Thigpen for Lafayette’s claim of excessive force. Doc. #10 at 6.
The Report and Recommendation warned:
Objections [to the Report and Recommendation] must be in writing and must be
filed within fourteen (14) days of this date, and “a party’s failure to file written
objections to the findings, conclusions, and recommendation in a magistrate
judge’s report and recommendation within  days after being served with a
copy shall bar that party, except on grounds of plain error, from attacking on
appeal the unobjected-to proposed factual findings and legal conclusions accepted
by the district court ....” Douglass v. United Services Automobile Ass’n, 79 F.3d
1415, 1428-29 (5th Cir. 1996) (en banc)(citations omitted); see also United States
v. Carrillo-Morales, 27 F.3d 1054, 1061-62 (5th Cir. 1994), cert. denied, 513 U.S.
Id. at 6–7.
Lafayette acknowledged receipt of the Report and Recommendation on April 28, 2017.
To date, no objections to the Report and Recommendation have been filed.
Accordingly, this Court’s review of the Report and Recommendation is limited to plain error.
Morales v. Mosley, No. 3:13-cv-848, 2014 WL 5410326, at *2 (S.D. Miss. Oct. 22, 2014) (citing
Spears v. McCotter, 776 F.2d 179 (5th Cir. 1985).
Shelby v. City of El Paso, 577 F. App’x 327, 331 (5th Cir. 2014) (“When there has been no
objection to a report and recommendation, review is limited to plain error.”).
In his complaint and at the Spears hearing, Lafayette contends that the defendants’ failure
to file his ARPs constitutes a denial of due process claim. He further contends that he has lost
over three years of good-time credits as a result of the defendants’ refusal to process his ARPs.
The Report and Recommendation recommends that Lafayette’s due process claim be dismissed
because (1) “Lafayette must pursue a claim that he was deprived of his right to good-time credits
through a habeas corpus action, not a § 1983 suit;” (2) “Mississippi law does not provide
prisoners with a constitutionally protected liberty interest in earning good-time credits;” and (3)
“inmates have no constitutional right to an adequate grievance procedure.” Doc. # 10 at 5.
However, based on Lafayette’s allegations, Lafayette does not complain about the adequacy of
the grievance procedure; rather he complains about the defendants’ failure to abide by the
established procedures of the administrative remedies program and the defendants’ failure to file
his ARPs in the first place.
The Fifth Circuit has recognized that inmates may have a right to prison grievance
procedures in some instances. See Gartrell v. Gaylor, 981 F.2d 254, 259 (5th Cir. 1993)
(“Because this court has recognized that a prisoner may have a protected liberty interest in prison
grievance procedures, … we are not willing to say, as the district court did, that a claim such as
Gartrell’s has no arguable basis in law.). Accordingly, construing all inferences in Lafayette’s
favor, the Court finds that the Report and Recommendation should not be adopted to the extent it
recommends dismissal of Lafayette’s denial of due process claim relating to the alleged failure to
allow him to utilize the administrative remedies program. The Court, however, has found no
plain error upon review of the remainder of the Report and Recommendation.
It is therefore ORDERED:
The Report and Recommendation  is ADOPTED in Part and REJECTED
in Part as the order of the Court.
Marshall Fisher, R. Pennington, and Sgt. Epps are DISMISSED from this action;
Lafayette’s claims of denial of medical care and denial of due process due to loss
of property are DISMISSED;
Lafayette’s claim of excessive force shall PROCEED against Sgt. Crawford and
Lt. Thigpen; and
Lafayette’s claim of denial of due process, as it relates to the alleged failure to
allow him to utilize the administrative remedies program, shall PROCEED.
SO ORDERED, this 12th day of July, 2017.
/s/Debra M. Brown
UNITED STATES DISTRICT JUDGE
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