Ewing v. Richie et al
ORDER ADOPTING REPORT AND RECOMMENDATIONS for 22 Report and Recommendations, finding as moot 25 Motion to Extend Deadline filed by Ricky Ronnell Ewing, granting 18 Motion to Dismiss filed by Denstiny Richie, overruling plaintiff's 26 objections. A separate final judgment will be entered pursuant to Federal Rule of Civil Procedure 58. Signed by District Judge Halil S. Ozerden on 2/23/2017 (wld)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
RICKY RONNELL EWING
DENSTINY RICHIE, Nurse, et al.
Civil No. 1:16cv90-HSO-JCG
ORDER FINDING MOOT PLAINTIFF’S  MOTION TO EXTEND
DEADLINE FOR FILING OBJECTIONS; OVERRULING PLAINTIFF’S
 OBJECTIONS; ADOPTING MAGISTRATE JUDGE’S  REPORT
AND RECOMMENDATION; GRANTING DEFENDANT DENSTINY
RICHIE’S  MOTION TO DISMISS FOR FAILURE TO EXHAUST
ADMINISTRATIVE REMEDIES; AND DISMISSING
PLAINTIFF’S CLAIMS WITHOUT PREJUDICE
BEFORE THE COURT are Plaintiff Ricky Ronnell Ewing’s Motion  to
Extend Deadline for Filing Objections and his Objections  to the Report and
Recommendation  of United States Magistrate Judge John C. Gargiulo, entered
in this case on January 9, 2017, regarding Defendant Denstiny Richie’s Motion 
to Dismiss for Failure to Exhaust Administrative Remedies. Based upon a review
of Plaintiff’s Complaint , Defendant Richie’s Motion , related pleadings, and
relevant legal authority, the Magistrate Judge recommended that Defendant
Richie’s Motion  be granted and that Plaintiff’s claims be dismissed without
prejudice. R. & R.  at 8.
After thoroughly reviewing Plaintiff’s Objections , the Magistrate Judge’s
Report and Recommendation , Defendant Richie’s Motion  to Dismiss, the
record, and relevant legal authority, the Court finds that Plaintiff=s Objections 
should be overruled and that the Magistrate Judge’s Report and Recommendation
 should be adopted as the finding of the Court. Defendant Richie’s Motion 
to Dismiss should be granted, and Plaintiff’s claims should be dismissed without
prejudice. Because the Court has considered Plaintiff’s late-filed Objections ,
Plaintiff’s Motion  to Extend Deadline for Filing Objections is rendered moot.
Plaintiff Ricky Ronnell Ewing (“Plaintiff” or “Ewing”) filed his Complaint 
pursuant to 42 U.S.C. §1983 in this Court on March 10, 2016. At that time,
Plaintiff was incarcerated at the South Mississippi Correctional Institution
(“SMCI”) in Leakesville, Mississippi. See Compl.  at 1. The Complaint 
named as Defendants two correctional officers and Nurse Denstiny Richie
(“Defendant Richie”). Id. The Court previously dismissed Plaintiff’s claims against
the two correctional officers for failure to state a claim, Order  at 1-3, leaving
only Plaintiff’s claims against Defendant Richie for resolution.
Plaintiff asserts that on December 31, 2015,1 Defendant Richie assaulted and
threatened him. Compl.  at 4. Plaintiff asks the Court to grant him timeserved and release him from the custody of the Mississippi Department of
Corrections (“MDOC”) with his “Golden Seal” and $2,700,000.00 damages. Id.
In the form Complaint for § 1983 claims, Plaintiff responded affirmatively
The Complaint states that this incident occurred on December 31, 2016. Compl.  at 4. In light
of the fact that Plaintiff executed the Complaint on February 23, 2016, id., this is obviously an error.
The Administrative Remedy Program form attached to the Complaint states that the incident
occurred on December 31, 2015. ARP  at 5.
when asked whether he had “completed the Administrative Remedy Program
[“ARP”] regarding the claims presented in this complaint?” Compl.  at 3.
Plaintiff asserted that he had completed an ARP form, which he attached as an
exhibit to his Complaint, but that a J. Cooley and R. Pennington had not processed
his ARP. Id. Plaintiff had not “heard anything yet” and was “still waiting.” Id.
According to Plaintiff, his “ARP [has] been tempted [sic] with.” Id.
On July 18, 2016, Defendant Richie filed a Motion  to Dismiss for Failure
to Exhaust Administrative Remedies. Defendant contends that Plaintiff failed to
exhaust his available administrative remedies under the Prison Litigation Reform
Act, 42 U.S.C. § 1997e(a) (the “PLRA”), mandating dismissal of his claims. Def.’s
Mem.  at 3-6. Defendant alternatively argues that, even if Plaintiff’s
allegations were considered on their merits, Plaintiff has failed to state a deliberate
indifference claim against Defendant Richie. Plaintiff filed Responses ,  in
opposition to Defendant Richie’s Motion , maintaining that he has filed an ARP
regarding this claim, but that the ARP has not been processed.
On January 9, 2017, the Magistrate Judge entered a Report and
Recommendation . The Magistrate Judge determined that Plaintiff had failed
to exhaust his administrative remedies because, even if Plaintiff had filed an ARP
concerning the claims in this lawsuit, “[t]he law is clear that backlogging of
Plaintiff’s grievance does not excuse his failure to exhaust available administrative
remedies.” R. & R.  at 8. The Magistrate Judge recommended that Defendant
Richie’s Motion  to Dismiss be granted and that Plaintiff’s claims be dismissed
without prejudice. Id.
Plaintiff submitted Objections  to the Report and Recommendation, again
claiming that he did in fact file an ARP at SMCI and attaching an ARP as an
Objs.  at 2; ARP [26-1] at 1.
did not process [his] ARP.”
Plaintiff argues that “SMCI and MDOC
Objs.  at 2.
According to Plaintiff, “J. Cooley and
R. Pennington is [sic] not processing them,” id., and “I don’t have nothing [sic] to do
with backlog. All that I no [sic] that I file each one of them,” id.
Standard of review
Because Plaintiff has submitted written Objections  to the Magistrate
Judge=s Report and Recommendation , the Court “make[s] a de novo
determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.”
28 U.S.C. § 636(b)(1); Rule 8(b) of
Rules Governing Section 2254 Cases in the United States District Courts. “Such
review means that this Court will examine the entire record and will make an
independent assessment of the law.” Lambert v. Denmark, Civil No. 2:12-cv-74KS-MTP, 2013 WL 786356, *1 (S.D. Miss. Mar. 1, 2013).
In conducting a de novo
review, the Court is not “required to reiterate the findings and conclusions of the
magistrate judge.” Koetting v. Thompson, 995 F.2d 37, 40 (5th Cir. 1993).
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)).
Exhaustion is an affirmative defense, and the burden is on a defendant to prove a
plaintiff failed to exhaust available administrative remedies. Id.
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
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.
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 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, MDOC, ch. VIII,
According to the MDOC Inmate Handbook,
[u]nless an extension has been granted, no more than 90 days shall
elapse from beginning the process to ending the process. Absent such
an extension, expiration of response time limits without receipt of a
written response shall entitle the inmate to move on to the next step in
Inmate Handbook, MDOC, ch. VIII, sec. VIII (2016), http://www.mdoc.ms.gov/
Inmate-Info/Documents/CHAPTER_VIII.pdf (last visited Feb. 17, 2017).
“Section 1997e’s exhaustion requirement is satisfied only if the prisoner
‘pursue[s] the grievance remedy to conclusion.’” Wilson, 776 F.3d at 301 (quoting
Wright v. Hollingsworth, 260 F.3d 357, 358 (5th Cir. 2001)). According to the Fifth
[t]his requirement does not fall by the wayside in the event that the
prison fails to respond to the prisoner’s grievance at some preliminary
step in the grievance process. Instead, the prison’s failure to timely
respond simply entitles the prisoner to move on to the next step in the
process. Thus, it is only if the prison fails to respond at the last step of
the grievance process that the prisoner becomes entitled to sue, because
then there is no next step (save filing a lawsuit) to which the prisoner
Id. (emphasis in original).
A prisoner therefore “cannot maintain a suit founded on
any claim that he presented to the prison in only a step-one ARP, irrespective of
whether the prison responded within the time allotted for rendering step-one
Plaintiff’s claims should be dismissed without prejudice for failure to exhaust
Plaintiff has attached to his Complaint an ARP form addressed to the Legal
Claims Adjudicator involving the December 31, 2015, incident with Defendant
Richie, which appears to have been executed by Plaintiff on January 5, 2016. See
ARP  at 5.
Plaintiff maintains that he submitted the ARP, but that it was never
processed. See Compl.  at 3.
Defendant Richie argues that Plaintiff is barred from filing suit because he
did not exhaust the ARP process, and notes in her Memorandum  that her
conferred with prison officials prior to filing this motion, and despite the
fact that Ewing purport [sic] to attach a copy of a request for an
administrative remedy (attached to Doc. 1 at 5), there is no record of
Ewing ever filing an ARP request related to the allegations in his
Def.’s Mem.  at 6 n.4.
While Defendant maintains that Plaintiff never began the ARP process for
this particular claim, whether he did or not is not dispositive here.
essentially confesses in his Complaint and other pleadings that he only began the
first step of the two-step MDOC ARP process.
Assuming he did in fact submit the
initial ARP form that was attached to his Complaint, Plaintiff was “still waiting” for
a response when he filed his Complaint, over a year after the ARP was purportedly
See Compl.  at 3.
Plaintiff clearly has not pursued the grievance remedy to its conclusion, see
Wilson, 776 F.3d at 301, and any delay in the prison’s response before the last step
of the grievance process “simply entitle[d Plaintiff] to move to the next step of the
According to the Fifth Circuit, Plaintiff cannot maintain this suit
because he only presented to the prison a step-one ARP, “irrespective of whether the
prison responded within the time allotted for rendering step-one responses.” Id.
Having conducted a de novo review of the record, the Court agrees with the
conclusions reached by the Magistrate Judge.
Plaintiff has not exhausted his
administrative remedies, and Defendant Richie’s Motion  to Dismiss should be
For the reasons stated herein, Plaintiff=s Objections  will be overruled,
and the Magistrate Judge’s Report and Recommendation  will be adopted as the
finding of this Court. Defendant Richie’s Motion  to Dismiss will be granted,
and Plaintiff’s claims will be dismissed without prejudice. Plaintiff’s Motion  to
Extend Deadline for Filing Objections is rendered moot.
IT IS, THEREFORE, ORDERED AND ADJUDGED that, Plaintiff Ricky
Ronnell Ewing’s Objections  to the Report and Recommendation  of United
States Magistrate Judge John C. Gargiulo are OVERRULED, and the Report and
Recommendation  of United States Magistrate Judge John C. Gargiulo, entered
in this case on January 9, 2017, is adopted in its entirety as the finding of this
IT IS, FURTHER, ORDERED AND ADJUDGED that, Plaintiff Ricky
Ronnell Ewing’s Motion  to Extend Deadline for Filing Objections is MOOT.
IT IS, FURTHER, ORDERED AND ADJUDGED that, Defendant
Denstiny Richie’s Motion  to Dismiss for Failure to Exhaust Administrative
Remedies is GRANTED, and Plaintiff Ricky Ronnell Ewing’s claims are
DISMISSED WITHOUT PREJUDICE. A separate final judgment will be
entered pursuant to Federal Rule of Civil Procedure 58.
SO ORDERED AND ADJUDGED, this the 23rd day of February, 2017.
s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE
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