Tomlin v. Jackson County, Mississippi et al

Filing 38

MEMORANDUM OPINION AND ORDER granting 34 Motion for Summary Judgment, and this case is dismissed for Plaintiff's failure to exhaust administrative remedies before filing suit. Signed by Magistrate Judge Robert H. Walker on 3/31/17. (RLW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
DONALD EDWARD TOMLIN
VS.

PLAINTIFF
CIVIL ACTION: 1:16cv62-RHW

JACKSON COUNTY, MISSISSIPPI, et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
Before the Court is [34], Defendants’ November 17, 2016 motion for summary judgment
on several grounds including Plaintiff’s failure to exhaust administrative remedies prior to filing
this prisoner civil rights lawsuit. Plaintiff filed no response to the motion, and the matter is ripe
for ruling. The parties consented to the exercise of jurisdiction by the U.S. Magistrate Judge
pursuant to 28 U.S.C. § 636(c) and FED.R.CIV.P. 73, and the case was reassigned to the
undersigned for all purposes. [27], [29]
Facts and Procedural History
On February 23, 2016,1 Plaintiff Donald Edward Tomlin, filed this prisoner civil rights
lawsuit alleging violation of his constitutional rights by Captain Mike Wright, Officer Wendy
Nevals, Sheriff Mike Ezell and Jackson County, Mississippi due to conditions in the Jackson
County Adult Detention Center (JCADC), during his confinement there from September 2015
until December 2015. Since he filed his complaint, Tomlin has changed his address several
times: on February 29, 2016 to the Mississippi Department of Corrections facility in Pearl, MS
[5]; on April 6, 2016 to an address in Hattiesburg, MS [12]; on July 22, 2016 to Central
Mississippi Correctional Facility [26]; to Madison County Community Work Center in Canton,
1

Tomlin signed the complaint January 12, 2016. [1, p. 5] The original complaint was filed jointly
by Randall Alan Williams and Donald Edward Tomlin. The Court entered an order on February 23, 2016
requiring that separate complaints be filed. [3]

MS on October 5, 2016 [31]; to a Forest, MS address on November 7, 2016 [32]; to the Hinds
County Restitution Center in Jackson, MS on January 30, 2017 [36]; and to a free-world address
in Pascagoula, MS on March 1, 2017. [37]
At the time of the events of which he complains, Tomlin had been convicted and was an
MDOC inmate. [1, p. 3] He alleges his Eighth Amendment rights were violated by conditions of
confinement in K-E Zone at JCADC where he claims he was confined from September 10, 20152
through December 4, 2015. [34-2, p. 7] According to jail records, Tomlin was housed in K-E
from October 12 until November 2, 2015, and from November 10 to November 30, 2015.3 [34-1,
pp. 10-11] The conditions of which Tomlin complains are that: there were 10-12 prisoners in the
zone which had five two-bed cells, a day room and a shower; there were four people in his cell at
times; he had to sleep on a mattress on the floor; the light fixture in his cell was gone, with
“asbestos coated” wires hanging down from where it had been;4 a water pipe broke in the wall
releasing water onto the floor; there was standing water on the floor; toilets were non-functional,
only two of the five toilets in the zone worked; the entry/exit door to the common area of the
zone was broken; the air conditioner was left on in cold weather; there was no hot water in the
shower; and the sinks in the cells did not work. [34-2, pp. 8-16]
According to Tomlin’s testimony, he sued Jackson County because it owns the jail,
Sheriff Ezell because he has control over the jail, Captain Wright (Director of the jail) because he
sent prisoners to K-E Zone as punishment, and classification officer Wendy Nevals because she

2

Jail records show Tomlin’s arrest/booking date as September 18, 2015. [34-1, p. 8], [34-3, p. 1]

3

Tomlin stated he was placed in K-E on September 10, 2015. [34-2, p. 17], [34-1, pp. 8, 11]

4

Tomlin testified it had to be asbestos because “the jail was built back in the early ‘40s and
‘50s,” and the wires had some coating on them he had never seen before. [34-2, pp. 12-13] [34-3, p. 1]

knew of the conditions in K-E Zone and did nothing about it. [34-2, pp. 20-22]. In response to
the Court’s inquiry as to what injury he suffered from Defendants’ actions, Tomlin stated that
living in the stated conditions was “mentally and physically disturbing.” [13]
Tomlin initially stated in the August 16, 2016 screening hearing that he never filed an
administrative remedy for the conditions of which he complains; that he simply made verbal
maintenance requests to staff members. He later testified he filed a written grievance sometime
in October but never received a response. [34-2, pp. 18-19] JCADC records contain no written
grievance from Tomlin regarding the conditions in K-E. [34-3] Of the 13 Inmate Requests he
submitted at JCADC, four are Grievances – one is about food service [34-3, p. 25], and three
concern medical problems which are not at issue in this lawsuit. [34-3, pp. 30-32] The only
request he directed to the JCADC Administration was to use the telephone up front to call and
check on his mother. [34-3, p. 29] His remaining Inmate Requests are directed to Classification
and are about housing and work assignments [34, pp. 21-23, 24, 26-27-28, 33]; none request that
he be moved from K-E; in fact, two request that he be moved to K-E. [34, pp. 24, 26]
By Order [30] entered October 4, 2016, the Court dismissed Tomlin’s official capacity
claims against Defendants Ezell, Nevals and Wright, as those claims are actually claims against
the governmental entity the individuals represent, i.e., Jackson County, Mississippi, which is
already a named defendant in the case. All Defendants now seek summary judgment on
Tomlin’s remaining claims. Defendants assert that Tomlin failed to exhaust his administrative
remedies prior to filing his lawsuit; he has failed to establish an Eighth Amendment violation; he
has not established the requisite elements of a municipal liability claim against Jackson County;
and that the individual Defendants have qualified immunity. In support of their motion,
Defendants have presented the November 15, 2016 affidavit of JCADC director Michael D.

Wright, accompanied by JCADC policies and procedures and the Inmate Handbook, Tomlin’s
booking sheet and activity sheet from JCADC, his hearing testimony, and jail records for
September 18 through December 4, 2015 regarding his claims. [34-1], [34-2], [34-3]
Summary Judgment Standard
Rule 56, FED.R.CIV.P., requires that a motion for summary judgment be granted “if the
movant shows there is no genuine dispute as to any material fact and that the movant is entitled
to a judgment as a matter of law.” A material fact is one that might affect the outcome of the suit
under the governing law; a genuine dispute exists when the evidence is such that a reasonable
jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). On a motion for summary judgment, the Court views the evidence and draws
reasonable inferences most favorable to the non-moving party. Abarca v. Metropolitan Transit
Authority, 404 F.3d 938, 940 (5th Cir. 2005). The party who bears the burden of proof at trial
also bears the burden of proof at the summary judgment stage. Celotex Corp. v. Catrett, 477
U.S. 317, 322-323 (1986).
One seeking summary judgment must identify those portions of the pleadings and
discovery on file and any affidavits which he believes demonstrate the absence of a genuine issue
of material fact. Id., at 325. If the movant fails to show the absence of a genuine issue
concerning any material fact, summary judgment must be denied, even if the non-movant has not
responded to the motion. John v. State of Louisiana, 757 F.2d 698, 708 (5th Cir. 1985).
However, once the movant carries his burden, the burden shifts to the non-movant to show
summary judgment should not be granted. The non-movant may not rest upon mere allegations
or denials, but must set forth specific facts showing there is a genuine issue for trial by either
submitting opposing evidentiary documents or referring to evidentiary documents already in the

record which show the existence of a genuine issue of material fact. Celotex, 477 U.S. at 324325; Reese v. Anderson, 926 F.2d 494, 498 (5th Cir. 1991); Howard v. City of Greenwood, 783
F.2d 1311, 1315 (5th Cir. 1986) (non-movant “must counter factual allegations by the moving
party with specific, factual disputes; mere general allegations are not a sufficient response.”).
Conclusory allegations, unsubstantiated assertions or the presence of a scintilla of evidence, will
not suffice to create a real controversy regarding material facts. Lujan v. National Wildlife
Federation, 497 U.S. 871, 888-89 (1990); Hopper v. Frank, 16 F.3d 92, 97-98 (5th Cir. 1994);
Davis v. Chevron U.S.A., Inc., 14 F.3d 1082, 1086 (5th Cir. 1994).
Law and Analysis
The Prison Litigation Reform Act (PLRA) requires a prisoner to exhaust all available
administrative remedies through the prison grievance system before filing a lawsuit pursuant to
42 U.S.C. § 1983:
No action shall be brought with respect to prison conditions under section 1983 of
this title, or any other Federal law, by a prisoner confined in any jail, prison, or
other correctional facility until such administrative remedies as are available are
exhausted.
42 U.S.C. § 1997e(a); Woodford v. Ngo, 548 U.S. 81, 83-84 (2006) (“proper exhaustion of
administrative remedies is necessary”). The Fifth Circuit takes “a strict approach” to the
exhaustion requirement. Nottingham v. Richardson, 499 Fed.Appx. 368, 373 (5th Cir. 2012);
Johnson, v. Ford, 261 Fed.Appx. 752, 755 (5th Cir. 2008) (citing Days v. Johnson, 322 F.3d
863, 866 (5th Cir. 2003). Exhaustion is mandatory for “all inmate suits about prison life,
whether they involve general circumstances or particular episodes, and whether they allege
excessive force or some other wrong.” Alexander v. Tippah County, Miss., 351 F.3d 626, 630
(5th Cir. 2003), quoting Porter v. Nussle, 534 U.S. 516, 532 (2002). Dismissal is appropriate

where an inmate has failed to properly exhaust the administrative grievance procedure before
filing his complaint in court. Gonzalez v. Seal, 702 F.3d 785, 788 (5th Cir. 2012).
Although Tomlin claims the MDOC Administrative Remedy Program (ARP) “is not
applicable” because his claims are from a county jail, the JCADC Inmate Handbook refutes that
contention. [1, p. 3], [34-1, p. 14] As a convicted MDOC inmate housed at JCADC, Tomlin had
available to him both the JCADC grievance procedure and the ARP. The JCADC Inmate
Grievance Procedure provides:
•Inmates may file a grievance when subject to ... a violation of civil rights...
•Inmates should file these grievances by directing an inmate request form to ADC
Administration.
•The form should clearly state the problem and include a detailed account of the
circumstances which led to the grievance.
•ADC Administration will review the form and decide what action, if any, should
be taken.
•Inmates who have been sentenced to the Mississippi Department of Corrections
also have access to the Administrative Remedy Program. Instructions for filing a
grievance through this program will be provided upon grievance request. This
should be used only after the inmate utilizes the normal grievance procedure.
[34-1, p. 14] The MDOC has a two-step ARP to address inmates’ complaints regarding their
incarceration. Howard v. Epps, 2013 WL 2367880, at *2 (S.D. Miss. May 29, 2013). The ARP
requires an inmate to submit a written grievance, and if he is not satisfied with the response to it,
he may continue to the second step by submitting the appropriate ARP form. The second step
response completes the ARP process, and if the inmate remains unsatisfied, he may then file suit
in federal court. Id.; see also, MDOC Inmate Handbook, Chapter VIII, Administrative Remedy
Program. Merely initiating the grievance process or putting prison officials on notice of a
complaint is insufficient to meet the exhaustion requirement – the grievance process must be
carried through to its conclusion before suit can be filed under the Prison Litigation Reform Act.
Tompkins v. Holman, 2013 WL 1305580, *2 (S.D. Miss. March 26, 2013); Wright v.

Hollingsworth, 260 F.3d 357, 358 (5th Cir. 2001). Tomlin’s assertion that he submitted a written
grievance regarding the conditions of which he complains in this lawsuit is belied by the JCADC
jail records. [34-3]
The PLRA further provides, “No Federal civil action may be brought by a prisoner
confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered
while in custody without a prior showing of physical injury...” 42 U.S.C. § 1997e(e). Tomlin
has neither alleged, nor presented evidence of, any physical injury; he stated only that living in
the conditions described in his complaint was “mentally and physically disturbing.” [13] Tomlin
has likewise failed to present evidence to establish a municipal liability claim. See, Piotrowski v.
City of Houston, 237 F.3d 567, 578 (5th Cir. 2001) (citing Monell v. Dep’t. of Social Services,
436 U.S. 658, 694 (1978)).
Because the evidence before the Court shows Tomlin failed to exhaust the administrative
remedies available to him before filing suit, dismissal of this action is warranted, obviating the
need to address Defendants’ alternative grounds for summary judgment. It is therefore,
ORDERED AND ADJUDGED that Defendants’ motion for summary is granted, and
this case is dismissed for Plaintiff’s failure to exhaust administrative remedies before filing suit.
A separate judgment will be entered.
SO ORDERED this the 31st day of March, 2017.

/s/

Robert H. Walker

ROBERT H. WALKER
UNITED STATES MAGISTRATE JUDGE