Ewing v. Taylor

Filing 33

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 23 Report and Recommendations, granting 21 Motion for Summary Judgment filed by Unknown Miller, Unknown Walker, Druetta Taylor. Ricky Ronnell Ewing's claims are dismissed without prejudice. Signed by District Judge Halil S. Ozerden on 5/17/2017 (wld)

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

PLAINTIFF
CIVIL ACTION NO. 1:16cv93-HSO-JCG

DRUETTA TAYLOR, Case Manager, et al.

DEFENDANTS

ORDER OVERRULING PLAINTIFF’S [25] OBJECTIONS, ADOPTING
MAGISTRATE JUDGE’S [23] REPORT AND RECOMMENDATION, AND
GRANTING DEFENDANTS’ [21] MOTION FOR SUMMARY JUDGMENT
This matter comes before the Court on Plaintiff Ricky Ronnell Ewing’s
Objections [25] to the Report and Recommendation [23] of United States Magistrate
Judge John C. Gargiulo, entered in this case on November 17, 2016, regarding
Defendants’ Motion for Summary Judgment [21]. Based upon his review of
Defendants’ Motion [21], the related pleadings, and relevant legal authority, the
Magistrate Judge determined that Plaintiff had not exhausted his available
administrative remedies and recommended that Defendants’ Motion for Summary
Judgment [21] be granted and that this case be dismissed without prejudice. R. &
R. [23] at 7.
After thoroughly reviewing Plaintiff’s Objections [25], the Magistrate Judge’s
Report and Recommendation [23], Defendants’ Motion for Summary Judgment [21],
the record, and relevant legal authority, the Court finds that Plaintiff’s Objections
[25] should be overruled and that the Magistrate Judge’s Report and
Recommendation [23] should be adopted as the finding of the Court. Defendants’

Motion for Summary Judgment [21] should be granted, and this case dismissed
without prejudice.
I. BACKGROUND
Plaintiff Ricky Ronnell Ewing (“Plaintiff” or “Ewing”) filed a Complaint [1]
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. [1] at 1. The Complaint [1] named
as Defendant Mrs. Taylor, Case Manager. Id. After Plaintiff responded to the
Court’s Order [6] requiring additional information, the Court directed the Clerk to
amend the docket to reflect that the named Defendants were Druetta Taylor, Case
Manager; Officer Miller; and Officer Walker. Order [8] at 1.
Plaintiff alleges that on December 30, 2015, Taylor placed her hands on him,
pushed him away, threatened him, and verbally assaulted him because he was
informing Miller than he needed to “go to medical.” Compl. [1] at 4; Resp. [7] at 1-2;
Aff. [1-2] at 1. Miller allegedly refused to allow Plaintiff to obtain treatment, even
though he was in pain. Compl. [1] at 4; Resp. [7] at 2; Aff. [1-2] at 1. Plaintiff
alleges that on February 9, 2016, Taylor again threatened him and called him
offensive names. Aff. [1-2] at 5. Plaintiff asserts that he requested a mat from
Walker, but that Walker did not provide him one. Id.
In the form Complaint for § 1983 claims, Plaintiff responded affirmatively
when asked whether he had “completed the Administrative Remedy Program
[“ARP”] regarding the claims presented in this complaint?” Compl. [1] at 3.
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Plaintiff stated 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 September 12, 2016, Defendants filed a Motion [21] for Summary
Judgment for Failure to Exhaust available Administrative Remedies. Defendants
argued 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. Defs.’ Mem. [22] at 5-6. Defendants have presented
evidence that Plaintiff’s grievance is in backlog because there are previous
grievances which will be processed before this one. Aff. of Joseph Cooley [21-1] at 1.
Plaintiff did not respond to Defendants’ Motion [21].
On November 17, 2016, the Magistrate Judge entered a Report and
Recommendation [23]. The Magistrate Judge determined that Plaintiff had failed
to exhaust his available administrative remedies and recommended that
Defendants’ Motion [21] for Summary Judgment be granted and that Plaintiff's
claims be dismissed without prejudice. R. & R. [19] at 6-7.
Plaintiff submitted Objections [25] to the Report and Recommendation, again
claiming that he did in fact file an ARP at SMCI and attaching an ARP as an
exhibit. Objs. [26] at 2; ARP [25-1] at 1. Plaintiff argues that his ARP has not been
processed and maintains that he should be permitted to proceed to trial on his
claims. Objs. [25] at 3.
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II. DISCUSSION
A.

Standard of review
Because Plaintiff has filed written Objections [25] 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-74-KS-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).
B.

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.” Id.
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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) (quotation omitted).
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, sec. IV.]
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Id.
“MDOC employs a ‘backlogging’ policy under which only one ARP is
considered active at a time, while the rest are maintained in ‘backlog.’” Wilson, 776
F.3d at 300. The Fifth Circuit has “recognized that backlogging is not
unconstitutional, nor does it abrogate § 1997e’s exhaustion requirement.” Id. at
301.
C.

Plaintiff’s claims should be dismissed without prejudice for failure to exhaust
administrative remedies.
Plaintiff has been a frequent-filer in this Court. Since October 2011, Plaintiff

has filed 14 lawsuits under 42 U.S.C. § 1983 in this Court, including four in 2015,
eight in 2016,1 and one petition for writ of habeas corpus in 2015.2 Plaintiff has now
accumulated three strikes under 28 U.S.C. § 1915(g). See Ewing v. Jone, et al., No.
1:15cv254-HSO-JCG, Order [15] (S.D. Miss. Feb. 1, 2016); Ewing v. Cooley, et al.,
No. 1:15cv277-HSO-JCG, Order [9] (S.D. Miss. Apr. 11, 2016); Ewing v. Richie, et
al., No. 1:16cv90-HSO-JCG, Order [11] (S.D. Miss. May 17, 2016).
Defendants have presented evidence that, while Plaintiff has filed a
grievance, it is in backlog due to his previously-filed grievances which will be
1

See Ewing v. Davis, et al., No. 4:11cv176-HTW-LRA; Ewing v. May, et al.,
3:14cv474-LRA; Ewing v. Woodall, et al., No. 1:15cv253-LG-RHW; Ewing v. Jone, et al.,
1:15cv254-HSO-JCG; Ewing v. Cooley, et al., No. 1:15cv277-HSO-JCG; Ewing v. Banks, et
al., No. 1:15cv298-RHW; Ewing v. Peabody, et al., No. 1:16cv46-HSO-JCG; Ewing v.
Peabody, et al., 1:16cv52-HSO-JCG; Ewing v. Sanford, No. 1:16cv56-HSO-JCG; Ewing v.
William, No. 1:16cv76-LG-RHW; Ewing v. Richie, et al., 1:16cv90-HSO-JCG; Ewing v.
Taylor, et al., No. 1:16cv93-HSO-JCG; Ewing v. Frost, No. 1:16cv121-LG-RHW; Ewing v.
Horn, et al., No. 1:16cv122-LG-RHW.
2

See Ewing v. Cooley, et al., No. 1:15cv381-HSO-JCG.

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processed before this one. Aff. of Joseph Cooley [21-1] at 1. Plaintiff did not
respond to Defendants’ Motion [21], nor did he offer any competent summary
judgment evidence to contradict Defendants’ evidence of this backlog. Instead,
Plaintiff asserts that he has filed an ARP every time an “incident happen bad to
me.” Obj. [25] at 3.
Having conducted a de novo review of the record, the Court agrees with the
conclusions reached by the Magistrate Judge. There can be no genuine dispute that
Plaintiff has failed to properly exhaust his available administrative remedies prior
to filing this action, as his ARP remains in backlog as a result of his own filings.
Because of Plaintiff’s failure to exhaust, dismissal is appropriate. See Gonzalez v.
Seal, 702 F.3d 785, 788 (5th Cir. 2012). Defendants’ Motion [21] for Summary
Judgment should be granted, and Plaintiff’s claims should be dismissed without
prejudice.
III. CONCLUSION
Plaintiff’s Objections [25] will be overruled, and the Magistrate Judge’s
Report and Recommendation [23] will be adopted as the finding of this Court.
Defendants’ Motion for Summary Judgment [21] will be granted, and Plaintiff’s
claims will be dismissed without prejudice.
IT IS, THEREFORE, ORDERED AND ADJUDGED that, Plaintiff Ricky
Ronnell Ewing’s Objections [25] are OVERRULED, and the Report and
Recommendation [23] of United States Magistrate Judge John C. Gargiulo, entered

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in this case on November 17, 2016, is adopted in its entirety as the finding of this
Court.
IT IS, FURTHER, ORDERED AND ADJUDGED that, Defendants’
Motion for Summary Judgment [21] 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 17th day of May, 2017.

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

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