Ewing v. Peabody et al

Filing 24

ORDER granting 16 Motion for Summary Judgment; denying 21 Motion and Exhibits and Objections; adopting Report and Recommendations re 22 Report and Recommendations. Ordered that the Plaintiff's claims are dismissed without prejudice. Signed by District Judge Halil S. Ozerden on 5/12/17. (JCH)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
RICKY RONNELL EWING

§
§
§
§
§
§
§
§

v.
MIKEL PEABODY Corrections
Officer at SMCI, et al.

PLAINTIFF
Civil No. 1:16cv52-HSO-JCG

DEFENDANTS

ORDER ADOPTING MAGISTRATE JUDGE’S [22] REPORT
AND RECOMMENDATION; GRANTING DEFENDANTS’ [16] MOTION
FOR SUMMARY JUDGMENT FOR FAILURE TO EXHAUST AVAILABLE
ADMINISTRATIVE REMEDIES; DENYING PLAINTIFF’S
[20] “MOTION AND EXHIBITS AND OBJECTIONS”;
AND DISMISSING PLAINTIFF’S CLAIMS WITHOUT PREJUDICE
This matter comes before the Court on the Report and Recommendation [22]
of United States Magistrate Judge John C. Gargiulo, entered in this case on April 6,
2017, regarding Defendants’ Motion [16] for Summary Judgment for Failure to
Exhaust Available Administrative Remedies and Plaintiff’s “Motion and Exhibits
and Objections” [21]. Based upon his review of the record and relevant legal
authority, the Magistrate Judge recommended that Defendants’ Motion [16] for
Summary Judgment be granted, that Plaintiff’s “Motion and Exhibits and
Objections” [21] be denied, and that Plaintiff’s claims be dismissed without
prejudice. R. & R. [22] at 8. Plaintiff has not filed any objection to the Report and
Recommendation.
For the reasons that follow, the Court finds that the Report and

1

Recommendation [22] should be adopted in its entirety as the finding of this Court,
that Defendants’ Motion [16] for Summary Judgment should be granted, that
Plaintiff’s Motion [21] should be denied, and that Plaintiff’s claims should be
dismissed without prejudice.
I. BACKGROUND
Plaintiff Ricky Ronnell Ewing (“Plaintiff” or “Ewing”) filed a pro se Complaint
[1] in this Court on February 16, 2016, and is proceeding in forma pauperis. The
Complaint asserts claims pursuant to 42 U.S.C. § 1983 against Defendants Mikel
Peabody, Corrections Officer at South Mississippi Correctional Institution (“SMCI”);
Zenia Holicomb, Lieutenant at SMCI; and Shetica Lockhart, Lieutenant at SMCI.
Compl. [1] at 1-2. On January 24, 2017, Defendants filed a Motion [16] for
Summary Judgment for Failure to Exhaust Available Administrative Remedies.
On February 13, 2017, Plaintiff filed an Objection [20] in opposition to Defendants’
Motion [16], as well as a “Motion and Exhibits and Objections” [21], arguing that
the MDOC never processed his ARP.
On January 31, 2017, the Magistrate Judge conducted an omnibus hearing
which functioned as a screening hearing pursuant to Spears v. McCotter, 766 F.2d
179 (5th Cir. 1985). According to the Magistrate Judge, at this hearing “Plaintiff
admitted facts confirming that he did not fully exhaust the Administrative Remedy
Program (“ARP”) adopted by the [Mississippi Department of Correction (“MDOC”)]
before filing this lawsuit.” R. & R. [22] at 1.

2

On April 6, 2017, the Magistrate Judge entered his Report and
Recommendation [22], recommending that Defendants’ Motion [16] for Summary
Judgment be granted, that Plaintiff’s “Motion and Exhibits and Objections” [21] be
denied, and that Plaintiff’s claims be dismissed without prejudice. Id. at 8. The
Report and Recommendation [22] was mailed to Plaintiff on April 6, 2017. Return
[23] at 1. Any objection to the Magistrate Judge’s Report and Recommendation
[22] 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 [22], 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
discretion or contrary to law. The Court will adopt the Magistrate Judge’s Report
and Recommendation [22] as the opinion of this Court, will grant Defendants’

3

Motion [16] for Summary Judgment, and will deny Plaintiff’s “Motion and Exhibits
and Objections” [21]. 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 [22] of United States Magistrate Judge John C. Gargiulo, entered
on April 6, 2017, is ADOPTED in its entirety as the finding of this Court.
IT IS, FURTHER, ORDERED AND ADJUDGED that, Plaintiff Ricky
Ronnell Ewing’s pleading styled as a “Motion and Exhibits and Objections” [21] is
DENIED.
IT IS, FURTHER, ORDERED AND ADJUDGED that, Defendants’
Motion [16] for Summary Judgment for Failure to Exhaust Available
Administrative Remedies is GRANTED, and Plaintiff’s claims are DISMISSED
WITHOUT PREJUDICE for 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 12th day of May, 2017.

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

4