Goff v. Fisher et al

Filing 38

ORDER granting 31 Motion for Summary Judgment; adopting Report and Recommendations re 36 Report and Recommendations, in its entirety as the finding of this Court; and ordered that, Plaintiffs claims are dismissed without prejudice for Plaintiffs failure to exhaust available administrative remedies. Signed by District Judge Halil S. Ozerden on 5/22/17 (RLW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
BARRON J. GOFF

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v.
MARSHALL FISHER, et al.

PLAINTIFF
Civil No. 1:15cv402-HSO-JCG
DEFENDANTS

ORDER ADOPTING MAGISTRATE JUDGE’S [36] REPORT
AND RECOMMENDATION, GRANTING [31] MOTION FOR SUMMARY
JUDGMENT, AND DISMISSING CASE WITHOUT PREJUDICE
FOR FAILURE TO EXHAUST AVAILABLE ADMINISTRATIVE REMEDIES
This matter comes before the Court on the Report and Recommendation [28]
of United States Magistrate Judge John C. Gargiulo, entered in this case on April
14, 2017. Based upon his review of the pleadings and relevant legal authority, the
Magistrate Judge recommended that the Motion for Summary Judgment for Failure
to Exhaust Available Administrative Remedies [31] filed by Defendants Marshall
Fisher, Marshall Turner, Sarah Jones, Mark Davis, Faytonia Johnson, Debbie
Cooley, and Anthony Beasley be granted, and that this case be dismissed as to all
Defendants for Plaintiff’s failure to exhaust available administrative remedies. R.
& R. [36] at 10. For the reasons that follow, the Court finds that the Report and
Recommendation [36] should adopted in its entirety as the finding of this Court,
that the Motion for Summary Judgment [31] should be granted, and that this case
should be dismissed without prejudice.

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I. BACKGROUND
Plaintiff Barron J. Goff (“Plaintiff”) filed a pro se Complaint [1] in this Court
on December 10, 2015, asserting claims pursuant to 42 U.S.C. § 1983. Compl. [1]
at 1. Plaintiff alleges that he was beaten by officers during a “shakedown” at
South Mississippi Correctional Institution (“SMCI”) on February 20, 2015.
Plaintiff is currently incarcerated at the Wilkinson County Correctional Facility
(“WCCF”) in Woodville, Mississippi, but at the time of the events complained of in
the Complaint, Plaintiff was housed at SMCI in Leakesville, Mississippi. Id.
On October 13, 2016, Defendants Marshall Fisher, Marshall Turner, Sarah
Jones, Mark Davis, Faytonia Johnson, Debbie Cooley, and Anthony Beasley filed a
Motion for Summary Judgment for Failure to Exhaust Available Administrative
Remedies [31]. To date, Plaintiff has not responded to this Motion [31], and the
time for doing so has passed.
On December 9, 2016, the Magistrate Judge conducted an omnibus hearing,
which served “as a Spears1 hearing and a case management hearing.” Order [29]
at 1. According to the Magistrate Judge, Plaintiff clarified his allegations at that
hearing. R. & R. [36] at 2. Plaintiff claims that, during the shakedown at SMCI,
he asked Defendant Unknown Beffaurd to use the restroom, but in response
Beffaurd and three other unidentified K-9 officers ripped Plaintiff off his bunk and
beat him. Id.
On April 14, 2017, the Magistrate Judge entered a Report and

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Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).

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Recommendation [36] finding that Plaintiff’s claims are barred by 42 U.S.C. §
1997e(a) because he failed to exhaust administrative remedies prior to filing suit.
The Magistrate Judge recommended that the Motion for Summary Judgment [31]
be granted and that all of Plaintiff’s remaining claims be dismissed sua sponte,
without prejudice, for Plaintiff’s failure to exhaust available administrative
remedies. R. & R. [36] at 10.
The Report and Recommendation [36] was mailed to Plaintiff on April 14,
2017, via certified mail return receipt requested. Any objection to the Magistrate
Judge’s Report and Recommendation [36] was due within fourteen (14) days of
service. L.U. Civ. R. 72(a)(3). To date, Plaintiff has not filed any objection to the
Magistrate Judge’s Report and Recommendation [36], and the time for doing so has
passed.
II. DISCUSSION
Where no party has objected to the Magistrate Judge’s Report and
Recommendation, the Court need not conduct a de novo review of it.

28 U.S.C. '

636(b)(1) (“a judge of the court shall make a de novo determination of those portions
of the report or specified proposed findings and recommendations to which objection
is made”). In such cases, the Court applies the “clearly erroneous, abuse of
discretion and contrary to law” standard of review. United States v. Wilson, 864
F.2d 1219, 1221 (5th Cir. 1989).
Having conducted the required review, the Court concludes that the
Magistrate Judge’s findings are not clearly erroneous, nor are they an abuse of

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discretion or contrary to law. The Court will adopt the Magistrate Judge’s Report
and Recommendation [36] as the opinion of this Court. The Motion for Summary
Judgment [31] will be granted, and this civil action will be dismissed without
prejudice for Plaintiff’s failure to exhaust available administrative remedies.
IT IS, THEREFORE, ORDERED AND ADJUDGED that, the Report and
Recommendation [36] of United States Magistrate Judge John C. Gargiulo, entered
on April 14, 2017, is ADOPTED in its entirety as the finding of this Court.
IT IS, FURTHER, ORDERED AND ADJUDGED that, the Motion for
Summary Judgment for Failure to Exhaust Available Administrative Remedies [31]
filed by Defendants Marshall Fisher, Marshall Turner, Sarah Jones, Mark Davis,
Faytonia Johnson, Debbie Cooley, and Anthony Beasley is GRANTED.
IT IS, FURTHER, ORDERED AND ADJUDGED that, Plaintiff’s claims
are DISMISSED WITHOUT PREJUDICE for Plaintiff’s failure to exhaust
available administrative remedies. A separate final judgment will be entered
pursuant to Federal Rule of Civil Procedure 58.
SO ORDERED AND ADJUDGED, this the 22nd day of May, 2017.

s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE

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