Gilmore v. Leverette et al
MEMORANDUM OPINION AND ORDER granting 26 Motion for Summary Judgment. Signed by Magistrate Judge John C. Gargiulo on 6/21/17. (JCH)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JERRY LYNN GILMORE, JR.
CIVIL ACTION NO. 1:15-cv-143-JCG
JACQUALINE LEVERETTE et al.
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
BEFORE THE COURT is the Complaint filed pursuant to 42 U.S.C. § 1983
by Plaintiff Jerry Lynn Gilmore, Jr., a postconviction inmate in the custody of the
Mississippi Department of Corrections (MDOC), who is proceeding pro se and in
forma pauperis. Plaintiff alleges excessive force and violation of due process against
Defendants who are correctional officers at South Mississippi Correctional
Institution (SMCI). He seeks the expungement of two rule violation reports (RVRs)
from his prison record and the restoration of his custody level to medium.
Defendants have filed a Motion for Summary Judgment (ECF No. 26), and the
Motion has been fully briefed. An omnibus hearing, which also operated as a Spears
hearing,1 was held on May 26, 2016. Having reviewed the submissions of the
parties, the record, and applicable law, the Court finds that Defendants’ Motion for
Summary Judgment should be granted. Plaintiff’s claims must be dismissed
because Plaintiff failed to exhaust available administrative remedies before filing
suit. Also, Plaintiff has not stated a cognizable claim for violation of due process.
Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
In 2009, Plaintiff was convicted in the Circuit Court of Jones County,
Mississippi, of selling cocaine. Gilmore v. Epps, No. 2:12cv44-KS-MTP, 2012 WL
3309000 at *1 (S.D. Miss. Aug. 13, 2012) (dismissing Plaintiff’s 28 U.S.C. § 2254
petition for habeas corpus). As a result, Plaintiff was sentenced to serve 30 years in
the custody of MDOC. This suit concerns alleged actions occurring at SMCI where
Plaintiff was housed in January 2015. At the time, Defendant Jacqualine Leverette
was a disciplinary hearing officer, Defendant Marshall Turner was a warden, and
the remaining Defendants – Officers Bartee, Davis, Polk, and Blakely – were
Plaintiff alleges that on January 10, 2015, he was wrongfully issued two
RVRs. He received the first RVR for showering at 1 a.m. during a time when the
showers were closed. (ECF No. 26-3, at 2). Plaintiff does not deny that he was in the
shower at an unauthorized time but feels he was justified under the circumstances
because he was preparing to go to work early in the morning as an orderly. Plaintiff
lost one month of privileges as a result of being convicted on this RVR.
Later on January 10, 2015, Plaintiff was issued a second RVR after an
incident between him and a female kitchen worker. The worker was employed by a
company providing food services to SMCI. Plaintiff was cleaning the kitchen
bathroom when he says that he offered the worker money in exchange for sexual
favors. According to Plaintiff, he “fraternized” with the worker, which he knew was
against the rules, but did nothing more than touch her arm. According to the
worker, Plaintiff attempted to throw her into the bathroom and rape her. The
worker then allegedly overpowered Plaintiff and reported the incident.
Officers Bartee, Davis, Polk, and Blakely responded, and according to
Plaintiff, they escorted him to an area of the prison that was not in view of the
security cameras and punched him until he was unconscious. Officer Bartee kicked
Plaintiff between the legs. When Plaintiff awoke, he was handcuffed and lying on
the floor in the infirmary. His head was swollen, and he believes he sustained a
Plaintiff disputes the kitchen worker’s account of what occurred but does not
dispute that he touched her. Plaintiff was convicted of assault on the second RVR
and punished with a loss of privileges, including losing trusty status, downgrade of
his custody level to closed, and placement in administrative segregation. Plaintiff
maintains that the punishment was excessive. He states that he was charged with
causing bodily harm to the kitchen worker when he did not. He complains that the
RVRs contained mistakes and administrative errors that make them invalid and in
violation of due process.
A. Summary Judgment Standard
Summary Judgment is mandated against the party who fails to make a
showing sufficient to establish the existence of an element essential to that party’s
case and on which that party has the burden of proof at trial. Fed. R. Civ. P. 56(e);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A motion for summary judgment
shall be granted “if the movant shows that there is no genuine dispute of material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). In evaluating a motion for summary judgment, the Court must construe “all
facts and inferences in the light most favorable to the non-moving party.” McFaul v.
Valenzuela, 684 F.3d 564, 571 (5th Cir. 2012).
Exhaustion of Available Administrative Remedies
PLRA’s exhaustion requirement
Under the Prison Litigation Reform Act (PLRA), Pub. L. No. 104-134, 110
Stat. 1321, H.R. 3019 (codified as amended in scattered titles and sections of the
U.S.C.), prisoners are required to exhaust available administrative remedies prior
to filing an action with respect to prison conditions:
No action shall be brought with respect to prison conditions
under [42 U.S.C. § 1983], or any other Federal law, by a
prisoner confined in any jail, prison, or other correctional
facility until such administrative remedies as are available
42 U.S.C. § 1997e(a).
The United States Supreme Court has held that § 1997e’s exhaustion
“language is ‘mandatory.’” Ross v. Blake, 136 S. Ct. 1850, 1856 (2016). “And that
mandatory language means a court may not excuse a failure to exhaust, even to
take [any special] circumstances into account.” Id. “[M]andatory exhaustion statutes
like the PLRA establish mandatory exhaustion regimes, foreclosing judicial
“The prison’s grievance procedures, and not the PLRA, define the remedies
that are available and must thus be exhausted.” Cowart v. Erwin, 837 F.3d 444, 451
(5th Cir. 2016). The United States Court of Appeals for the Fifth Circuit takes a
“‘strict’ approach to § 1997e’s exhaustion requirement, under which prisoners must
not just substantially comply with the prison’s grievance procedures, but instead
must exhaust available administrative remedies properly.” Id. (emphasis in
original) (quotation omitted). Exhaustion “is a threshold issue that courts must
address to determine whether litigation is being conducted in the right forum at the
right time.” Dillon v. Rogers, 596 F.3d 260, 272 (5th Cir. 2010). “[J]udges may
resolve factual disputes concerning exhaustion without the participation of a jury.”
Dillon, 596 F.3d at 272.
MDOC utilizes a “formal two-step process for handling inmate grievances.”
Yankton v. Epps, 652 F. App’x 242, 245 (5th Cir. 2016) (citing Miss. Code § 47-5-801,
et seq.; Wilson v. Epps, 776 F.3d 296, 300 n.2 (5th Cir. 2015)).
“[T]o ensure their right to use the formal [ARP],” inmates
“must make their request to the Adjudicator in writing
within a 30 day period after an incident has occurred.”
[Inmate Handbook, MDOC, ch. VIII, sec. IV.] They are,
however, discouraged from making repetitive requests and
“are encouraged to continue to seek solutions to their
concerns through informal means.” [See id.]
Prior to the “first step” of this procedure, the Adjudicator
screens the request to determine whether it meets specified
criteria. [See id. at ch. VIII, sec. V.] If a request fails to meet
that criteria, the Adjudicator will reject it and notify the
inmate via Form ARP-1. [See id. at ch. VIII, sec. VI.] If the
request meets the criteria, however, the Adjudicator will
accept it into the ARP, and the request will then proceed to
the first step. At the first step, the appropriate MDOC
official receives the request via Form ARP-1 and provides
a “first-step response” to the request via Form ARP-2. If
the inmate is satisfied with this first-step response, he does
not need to do anything further. If unsatisfied, however,
the inmate may then proceed to the “second step” by
indicating as much on the same Form ARP-2. At the second
step, another appropriate MDOC official, such as a warden,
provides the “second-step response” via Form ARP-3. If
unsatisfied with the second-step response, the inmate may
then bring a claim in court. [See Inmate Handbook, ch.
VIII, sec. IV.]
Plaintiff did not complete the administrative process
Defendants’ threshold argument is that Plaintiff failed to exhaust
administrative remedies with respect to all of his claims before filing suit. Plaintiff
submitted two ARP grievances on January 13, 2015, three days after receiving the
RVRs. Plaintiff challenged the first RVR on grounds of “due process/administrative
error. RVR doesn’t have a Unit Admin Initial and incorrect date. RVR be dismissed
and expunged from my file!” (ECF No. 26-1, at 6).
Plaintiff challenged the second RVR on grounds of “administrative error and
due process violation. Wrong MDOC #, wrong housing location, and no evidence. My
pink disciplinary copy has the wrong housing unit. RVR be dismissed on those
grounds. And expunged from file.” Id. at 4. Neither grievance submitted by Plaintiff
alleges or mentions use of excessive force or assault.
Warden Turner signed a first-step response on February 18, 2015, indicating
that he had reviewed the decision of the hearing officer, agreed with the hearing
officer, and found no merit to Plaintiff’s grievances regarding the RVR convictions
and punishments. Id. at 8. Plaintiff did not proceed to the “second step” of the ARP
process. Accordingly, Plaintiff failed to properly exhaust available administrative
remedies prior to filing suit. Plaintiff, at no time, filed a grievance regarding
excessive force. Plaintiff’s claims are barred by 42 U.S.C. § 1997e(a) and must be
Failure to State a Claim
Plaintiff alleges that Leverette and Turner violated his right to due process
with respect to the two RVRs. Plaintiff alleges that the RVRs contained mistakes
and administrative errors that make them invalid and in violation of due process.
The administrative errors allegedly included the wrong location on an RVR, an
incorrect prisoner number, and an incorrect date. Plaintiff claims that there was
insufficient evidence to support his convictions on the RVRs. Plaintiff contends that
the punishment he received was too harsh.
With respect to his complaints about the RVRs, Plaintiff has not alleged a
violation of a constitutional right. An inmate does not have a federally protected
liberty interest in having a prison grievance investigated or resolved to his
satisfaction. Geiger v. Jowers, 404 F.3d 371, 373-74 (5th Cir. 2005). An inmate does
not have a constitutional right to a grievance process that is responsive to his
perceived injustices. Jackson v. Dunn, 610 F. App’x 397, 398 (5th Cir. 2015).
Placement in administrative segregation or the loss of prison privileges does not
implicate a liberty interest because those punishments generally do not represent
“the type of atypical, significant deprivation in which a State might conceivably
create a liberty interest.” Sandin v. Conner, 515 U.S. 472, 486 (1995); Luken v.
Scott, 71 F.3d 192, 193 (5th Cir. 1995). A prisoner has no right to remain in a
particular prison, and a change in a prisoner’s classification or custody statutes does
not implicate the due process clause. Meachum v. Fano, 427 U.S. 215, 224-25 (1979).
Inmates have no constitutional right to trusty status. See Blankenship v. Mack,
3:13-cv-272-CWR-LRA, 2013 WL 4523580 (S.D. Miss. Aug. 27, 2013) (citing McCord
v. Maggio, 910 F.2d 1248, 1250-51 (5th Cir. 1990)).
Insofar as Plaintiff seeks relief regarding the alleged violation of his due
process rights resulting from prison disciplinary and grievance procedures, Plaintiff
has failed to state a claim upon which relief may be granted. See Morris v. Cross,
476 F. App’x 783, 785 (5th Cir. 2012) (finding inmate’s claims regarding grievance
process were properly dismissed as frivolous.).
IT IS, THEREFORE, ORDERED AND ADJUDGED that Defendants’
Motion for Summary Judgment (ECF No. 26) is GRANTED. Plaintiff’s claims are
dismissed without prejudice for failure to exhaust administrative remedies. A
separate final judgment will be entered as instructed by Federal Rule of Civil
SO ORDERED, this the 21st day of June, 2017.
John C. Gargiulo
JOHN C. GARGIULO
UNITED STATES MAGISTRATE JUDGE
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