Ewing v. Sanford
ORDER adopting Report and Recommendations re 35 Report and Recommendations.; granting 28 Motion for Judgment on the Pleadings. Signed by District Judge Halil S. Ozerden on 6/20/17. (JCH)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
RICKY RONNELL EWING
CIVIL NO. 1:16cv56-HSO-JCG
ORDER OVERRULING PLAINTIFF’S OBJECTION ,
ADOPTING MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION , AND GRANTING DEFENDANT’S
MOTION FOR JUDGMENT ON THE PLEADINGS 
This matter comes before the Court on Plaintiff Ricky Ronnell Ewing’s
Objection  to the Report and Recommendation  of United States Magistrate
Judge John C. Gargiulo, entered in this case on April 7, 2017, regarding
Defendant’s Motion for Judgment on the Pleadings . Based upon his review of
Defendant’s Motion , the related pleadings, and relevant legal authority, the
Magistrate Judge determined that Plaintiff had not exhausted his available
administrative remedies and recommended that Defendant’s Motion  be granted
under the Federal Rule of Civil Procedure 56 standard, and that this case be
dismissed without prejudice. R. & R.  at 4-7.
After thoroughly reviewing Plaintiff’s Objection , the Magistrate Judge’s
Report and Recommendation , Defendant’s Motion , the record, and relevant
legal authority, the Court finds that Plaintiff’s Objection  should be overruled,
that the Magistrate Judge’s Report and Recommendation  should be adopted as
the finding of the Court, that Defendant’s Motion for Judgment on the Pleadings
 should be granted, and that this case should be dismissed without prejudice.1
Pro se Plaintiff Ricky Ronnell Ewing (“Plaintiff”), proceeding in forma
pauperis, filed a Complaint  pursuant to 42 U.S.C. '1983 in this Court on
February 19, 2016.
At that time, Plaintiff was incarcerated at the South
Mississippi Correctional Institution (“SMCI”) in Leakesville, Mississippi. Compl.
 at 1. The Complaint  named as Defendant Kaity Sanford. Id.
Subsequently, a Waiver of Service of Summons  and an Answer  was filed by
Defendant Kaity Sanford, which reflected that her correct name is Kathy PadgettSanford (“Defendant”).
Ans.  at 1.
Plaintiff alleges that on February 2, 2016, Defendant refused to give him an
“alcohol pad” after having given a “white guy” two alcohol pads, and that her reason
for refusing Plaintiff’s request was because she was “races (sic).”
Obj.  at 4-5; Ex. [37-3] at 1.
Compl.  at 3-5;
Plaintiff appears to assert claims for conspiracy,
racial discrimination, and harassment. Compl.  at 3.
In the form Complaint
for ' 1983 claims, Plaintiff responded affirmatively when asked whether he had
Although it appears that Defendant’s Motion requested that Plaintiff’s Complaint
be dismissed with prejudice and that Plaintiff be assessed a strike, the Court
concurs with the Magistrate Judge’s recommendation that this case be dismissed
without prejudice due to Plaintiff’s failure to exhaust his administrative remedies.
Defendant’s request for relief other than dismissal without prejudice is implicitly
denied in the Report and Recommendation.
“completed the Administrative Remedy Program [“ARP”] regarding the claims
presented in this complaint?”
Compl.  at 3.
Plaintiff then admits that he
“having (sic) heard anything yet” in response to the question seeking the results of
the ARP procedure. Id.
On January 24, 2017, Defendant filed a Motion for Judgment on the
Pleadings  asserting that Plaintiff failed to file an ARP grievance let alone
exhaust his available administrative remedies under the Prison Litigation Reform
Act, 42 U.S.C. ' 1997e(a) (the APLRA@), therefore mandating dismissal of his claims.
Mot.  at 1-2; Aff. Joseph Cooley [28-2] at 1; Mem. in Supp.  at 3-5.
Defendant further argues that Plaintiff fails to assert a “viable claim of inadequate
medical treatment” or to even “allege facts sufficient to support a plausible claim
that Nurse Sanford acted with deliberate indifference to the treatment of his
serious medical condition.”
Mem. in Supp.  at 5-8. Defendant seeks the
dismissal with prejudice of Plaintiff’s frivolous claims, and asks that the dismissal
be adjudged as a strike against Plaintiff under the PLRA.
Mot.  at 2; Mem. in
Supp.  at 8.
Plaintiff’s response in opposition, styled as an “Objection” , maintains
that Plaintiff did file an ARP claim and refers to several alleged “Exhibits” although
there are no exhibits attached to the responsive pleading.2
Obj.  at 1-7.
Plaintiff did file “Exhibits” in support of his response in opposition to Defendant’s
Rebuttal  styled “Motion to Rebuttal” . Exhibit “C” is an ARP form dated “2/9/16”
asserting that Plaintiff’s request for an alcohol pad on “2/2/16” was denied by Defendant as
Plaintiff also appears to admit that he has not received a response to the alleged
ARP claim. Id.
On April 7, 2017, the Magistrate Judge entered a Report and
The Magistrate Judge determined that even if Plaintiff had
filed an ARP claim concerning the February 2, 2016 incident, he failed to exhaust
his available administrative remedies prior to filing the Complaint in this case on
February 19, 2016.
The Magistrate Judge recommended that, because Defendant
filed an Affidavit in support of her Motion, the Defendant’s Motion for Judgment on
the Pleadings  be granted under the summary judgment standard of Federal
Rule of Civil Procedure 56, and that Plaintiff's claims be dismissed without
prejudice. R. & R.  at 1-7.
Plaintiff filed an “Objection”  to the Report and Recommendation on April
24, 2017, maintaining that he exhausted the ARP process because he filed an ARP
grievance although MDOC never processed it. Obj.  at 2.
Standard of Review
Because Plaintiff has objected to the Magistrate Judge’s Report and
Recommendation, this Court is required to make a de novo determination of ‘“those
portions of the [magistrate’s] report or specified proposed findings or
set forth in his Complaint. Exh. “3” [34-3] at 1. Exhibit “C” is date stamped “FEB 24
2016” by the Circuit Clerk of Green County, Mississippi. Id.
recommendations to which objection is made.’” Funeral Consumers All. Inc. v.
Serv. Corp Int’l, 695 F.3d 330, 347 (5th Cir. 2012) (quoting Hernandez v. Estelle, 711
F.2d 619, 620 (5th Cir. 1983) (quoting 28 U.S.C. § 636(b)(1)); see also Longmire v.
Guste, 921 F.2d 620, 623 (5th Cir. 1991) (noting parties are entitled to a de novo
review by an Article III Judge as to those issues to which an objection is made).
A court is not required, however, to make new findings of fact independent of
those made by a magistrate. Warren v. Miles, 230 F.3d 688, 694-95 (5th Cir. 2000).
Nor is a court required to reiterate the findings and conclusions of a magistrate
judge. Koetting v. Thompson, 995 F.2d 37, 40 (5th Cir. 1993).
Also, a court need
not consider objections which are frivolous, conclusive, or general in nature. Battle
v. United States Parole Commission, 834 F.2d 419, 421 (5th Cir. 1987); see also
Nettles v. Wainwright, 677 F.2d 404, 410 n. 8 (5th Cir.1982) (“Parties filing
objections must specifically identify those findings objected to. Frivolous, conclusive
or general objections need not be considered by the district court.”).
Plaintiff was required to exhaust his available administrative remedies prior
to filing suit.
“The PLRA requires prisoners to exhaust ‘such administrative remedies as
are available’ prior to filing a § 1983 action regarding prison conditions.” Cowart v.
Erwin, 837 F.3d 444, 451 (5th Cir. 2016) (quoting 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 discretion.”
The United States Court of Appeals for the Fifth Circuit has explained that
“[t]he prison’s grievance procedures, and not the PLRA, define the remedies that are
available and must thus be exhausted.” Cowart, 837 F.3d at 451. 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 remedies properly.” Id. (emphasis in original)
The 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 ARPB1. [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 ARPB1 and provides a “first-step response” to the request via Form
ARPB2. 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 ARPB2. At the second step, another appropriate MDOC official,
such as a warden, provides the “second-step response” via Form ARPB3.
If unsatisfied with the second-step response, the inmate may then bring
a claim in court. [See Inmate Handbook, MDOC, ch. VIII, sec. IV.]
Plaintiff’s claims should be dismissed without prejudice for failure to exhaust
Having conducted a de novo review of the record, the Court agrees with the
conclusions reached by the Magistrate Judge. Whether or not Plaintiff filed an
ARP grievance, Plaintiff admitted on the face of his Complaint that he had not
received a response to his grievance. Compl.  at 3. Although Plaintiff’s
Objection to the Report and Recommendation maintains that Plaintiff completed
the ARP process, Obj.  at 3, the only evidence provided to support this allegation
is Plaintiff’s ARP grievance he dated “2/9/16” which was date stamped as received
on February 24, 2016, by the Circuit Clerk of Greene County, Mississippi. Ex.  at 1. Plaintiff has failed to produce any evidence that he completed the ARP
process or otherwise exhausted his administrative remedies prior to filing his
Complaint  or his Objection .
Because of Plaintiff’s failure to exhaust, dismissal is appropriate. See
Gonzalez v. Seal, 702 F.3d 785, 788 (5th Cir. 2012). Defendant’s Motion for
Judgment on the Pleadings  should be granted, and Plaintiff’s claims should be
dismissed without prejudice. To the extent Defendant’s Motion requests any
further relief, that relief was implicitly denied in the Magistrate Judge’s Report and
Plaintiff=s Objection  will be overruled, and the Magistrate Judge=s Report
and Recommendation  will be adopted as the finding of this Court. Defendant’s
Motion for Judgment on the Pleadings  will be granted, and Plaintiff=s claims
will be dismissed without prejudice.
IT IS, THEREFORE, ORDERED AND ADJUDGED that Plaintiff Ricky
Ronnell Ewing=s Objection  is OVERRULED, and the Report and
Recommendation  of United States Magistrate Judge John C. Gargiulo, entered
in this case on April 7, 2017, is adopted in its entirety as the finding of this Court.
IT IS, FURTHER, ORDERED AND ADJUDGED that Defendant’s Motion
for Judgment on the Pleadings  is GRANTED, and Plaintiff Ricky Ronnell
Ewing=s claims are DISMISSED WITHOUT PREJUDICE. A separate final
judgment will be entered in accordance with Federal Rule of Civil Procedure 58.
SO ORDERED AND ADJUDGED, this the 20th day of June, 2017.
s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE
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