Gilmore v. Evans et al
MEMORANDUM OPINION AND ORDER granting 25 Motion for Summary Judgment. Plaintiff's claims are dismissed without prejudice for failure to exhaust available administrative remedies as required by 42 U.S.C. 1997e(a). Signed by Magistrate Judge John C. Gargiulo on 6/21/2017 (wld)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JERRY LYNN GILMORE, JR.
CIVIL ACTION NO. 1:15-cv-247-JCG
UNKNOWN EVANS 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 the South Mississippi Correctional
Institution (SMCI). Defendants have filed a Motion for Summary Judgment (ECF
No. 25), 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
are barred because he failed to exhaust available administrative remedies before
filing suit. Plaintiff furthermore states no claim for violation of due process.
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
Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
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 events at SMCI where Plaintiff was
housed in May 2015.
On May 24, 2015, Plaintiff received a rule violation report (RVR) for
inappropriate sexual behavior and indecent exposure. When correctional officers
responded to a fire started in an adjoining cell, Plaintiff was standing in his cell
with his hand in his pants, allegedly masturbating. Officer Jones approached,
opened Plaintiff’s cell door, sprayed Plaintiff in the face with chemical agent, and
then closed the cell door. Plaintiff was taken to the infirmary approximately forty
According to Plaintiff, Captain Evans, and Officers Jones, Davis, and
Lockhart took a detour to the receiving room as they escorted Plaintiff to the
infirmary. In the receiving room, Officer Jones hit Plaintiff from behind with a
radio. Captain Evans slapped Plaintiff across the head and threatened him with a
prison shank. Officers Jones and Lockhart also hit Plaintiff.
Plaintiff received a second RVR on May 24, 2015, for allegedly grabbing
Officer Jones’ arm as she approached his cell. Plaintiff was convicted of both RVRs
but argues that his due process rights were violated during the disciplinary process
because the RVRs were not delivered and stamped properly, and because he was not
allowed to call witnesses at the disciplinary hearing.
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).
Plaintiff did not exhaust available administrative remedies prior to filing suit
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). “[T]hat
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 ARP process
Defendants’ threshold argument is that Plaintiff failed to exhaust
administrative remedies with respect to all of his claims before filing suit. Plaintiff
filed an ARP grievance on June 3, 2015, complaining that excessive force was used
against him. (ECF No. 25-1, at 1). Warden Turner completed a first-step response,
informing Plaintiff that his grievance was being taken seriously and would be
thoroughly investigated. Id. at 6. Turner found, however, that there was probable
cause for Officer Jones to deploy chemical agent. Id.
Plaintiff did not appeal the first-step response. Id. at 1. He did not proceed to
the second step of the ARP process. As a result, Plaintiff failed to properly exhaust
available administrative remedies prior to filing suit. Plaintiff’s claims are thus
barred by 42 U.S.C. § 1997e(a) and must be dismissed without prejudice.
Plaintiff fails to state a claim for violation of due process
Because he was convicted of the two RVRs, Plaintiff was punished with a loss
of privileges for one month, excluding exercise periods. (ECF No. 25-2, at 1-2).
Plaintiff maintains that his due process rights were violated during the disciplinary
process because the two RVRs were not delivered and stamped properly, and
because he was not allowed to call witnesses at the disciplinary hearing.
“The Fourteenth Amendment Due Process Clause protects persons against
deprivations of life, liberty, or property; and those who seek to invoke its procedural
protection must establish that one of these interests is at stake.” Wilkinson v.
Austin, 545 U.S. 209, 221 (2005). A temporary loss of prison privileges that does not
affect the duration of Plaintiff’s sentence does not implicate a liberty interest
because this punishment does 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).2
See Nathan v. Hancock, 477 F. App’x 197, 199 (5th Cir. 2012) (holding
placement in disciplinary segregation and change in custody status did not implicate
liberty interest); Zamora v. Thaler, 407 F. App’x 802, 802 (“Punishments such as
restrictions on visitation do not implicate due process concerns”); Luken v. Scott, 71
F.3d 192, 193 (5th Cir. 1995) (finding change in custodial status did not implicate due
process concerns); Hernandez v. Velasquez, 522 F.3d 556, 562-63 (5th Cir. 2008)
(“administrative segregation . . . being an incident to the ordinary life of a prisoner,
will never be a ground for a constitutional claim”); Lewis v. Dretke, 54 F. App’x 795,
It is well settled that a prisoner has no constitutional right to have his grievances
investigated in a certain manner, or for the investigating officers to reach a
different conclusion. Taylor v. Cockrell, 92 F. App’x 77, 78 (5th Cir. 2004); Beall v.
Johnson, 54 F. App’x 796, *1 (5th Cir. 2002); Hernandez v. Estelle, 788 F.2d 1154,
1158 (5th Cir. 1986). Plaintiff has failed to state a claim for violation of due process.
IT IS, THEREFORE, ORDERED AND ADJUDGED that Defendants’
Motion for Summary Judgment (ECF No. 25) is GRANTED. Plaintiff’s claims are
dismissed without prejudice for failure to exhaust available administrative
remedies as required by 42 U.S.C. § 1997e(a). A separate final judgment will be
entered as instructed by Federal Rule of Civil Procedure 58.
SO ORDERED, this the 21st day of June, 2017.
John C. Gargiulo
JOHN C. GARGIULO
UNITED STATES MAGISTRATE JUDGE
*1 (5th Cir. 2002) (finding disciplinary restriction of privileges did not implicate
liberty interest); Madison v. Parker, 104 F.3d 765, 768-69 (5th Cir. 1997) (holding
inmate’s 30-day commissary and cell restrictions as punishment did not implicate
due process concerns); Neals v. Norwood, 59 F.3d 530, 533 (5th Cir. 1995) (finding
there is no protectable liberty interest in custodial classification); McGowan v. Peel,
No. 3:06-cv-659-DPJ-JCS, 2007 WL 710154, *2 (S.D. Miss. Mar. 6, 2007) (“It is clear
that the Plaintiff does not have a constitutional right to receive a certain custodial
classification while incarcerated”).
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