Robinson v. Fisher et al
ORDER adopting Report and Recommendations re 28 Report and Recommendations.; granting 31 Motion for Summary Judgment; granting 19 Motion to Dismiss. Signed by District Judge Halil S. Ozerden on 3/1/17. (JCH)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JONATHAN M. ROBINSON
MARSHALL FISHER, et al.
Civil No. 1:16cv103-HSO-JCG
ORDER ADOPTING MAGISTRATE JUDGE’S  REPORT
AND RECOMMENDATION; GRANTING DEFENDANT RONALD
WOODALL’S  MOTION TO DISMISS FOR FAILURE
TO EXHAUST AVAILABLE ADMINISTRATIVE REMEDIES; AND
GRANTING DEFENDANTS MARSHALL FISHER AND UNKNOWN
CRAWSON’S  MOTION FOR SUMMARY JUDGMENT
FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES
BEFORE THE COURT is the Report and Recommendation  of United
States Magistrate Judge John C. Gargiulo, entered in this case on November 15,
2016, on the Motion  to Dismiss for Failure to Exhaust Available Administrative
Remedies filed by Defendant Ronald Woodall. Based upon his review of Plaintiff’s
Complaint , Defendant Woodall’s Motion , related pleadings, and relevant
legal authority, the Magistrate Judge recommended that Defendant Woodall’s
Motion  be granted and that Plaintiff’s claims against Defendant Woodall be
dismissed without prejudice for Plaintiff’s failure to exhaust administrative
remedies. R. & R.  at 9. Plaintiff has not filed any objection to the Report and
Recommendation. After thoroughly reviewing the Magistrate Judge’s Report and
Recommendation , Defendant Woodall’s Motion  to Dismiss, the record, and
relevant legal authority, the Court finds that the Magistrate Judge’s Report and
Recommendation  should be adopted as the finding of the Court. Defendant
Woodall’s Motion  to Dismiss should be granted, and Plaintiff’s claims against
Defendant Woodall should be dismissed without prejudice.
Also before the Court is the Motion  for Summary Judgment for Failure to
Exhaust Administrative Remedies filed by Defendants Marshall Fisher and Judy
Clawson (incorrectly identified as “Unknown Crawson”). Plaintiff has not
responded to Defendants Fisher and Clawson’s Motion .
Plaintiffs’ Complaint , Defendants Fisher and Clawson’s Motion , the record
as a whole, and relevant legal authority, the Court is of the opinion that Defendants
Fisher and Clawson’s Motion  should also be granted. Plaintiff’s claims against
Defendants Fisher and Clawson should also be dismissed without prejudice.
At the time he filed the Complaint  on March 24, 2016, Plaintiff Jonathan
M. Robinson (“Plaintiff” or “Robinson”) was incarcerated at the South Mississippi
Correctional Institution (“SMCI”) in Leakesville, Mississippi. See Compl.  at 1.
Plaintiff alleges that in 2014 he was being held at the George County Community
Work Center (“CWC”), where he was assigned to clean the lagoon at the waste
treatment plant without the proper personal protective equipment. Id. at 4.
In November 2014, Plaintiff was moved to Beat 3 Road Maintenance in
George County, and on February 8, 2015, Plaintiff was reassigned to Beat 4 Road
Maintenance in the County. Id. at 5. Plaintiff alleges that on February 8, 2015, a
County worker named Jason Unknown (“Jason”) ordered Plaintiff to ride on a oneperson tractor with him. Id. “Jason hit a bump on the road, and [Plaintiff] fell off
the tractor.” Id. “Jason ran over [Plaintiff] with the tractor – breaking
[Plaintiff’s] left leg in several places, detaching [his] calf muscle from the bone, and
crushing [his] left foot.” Id. at 5-6. Plaintiff was transported to a hospital where
he remained until mid-March 2015, when he returned to the SMCI infirmary. Id.
at 6-7. While in the infirmary, Plaintiff was under the care of Defendant Dr.
Woodall. Plaintiff states that Dr. Woodall released him from his care in May 2015,
at which point Plaintiff was placed back in general population. Id. at 7.
While Plaintiff was in the SMCI infirmary, he claims that he “repeatedly
requested to [Inmate Legal Assistance Program (“ILAP”)] to pick up a ARP. But
either the staff [he] was giving it to did not drop the forms in the right box, or the
forms were ignored, or during ILAP [Plaintiff] would be at a DR appointment.” Id.
Plaintiff asserts that he “repeatedly tried to follow MDOC procedures to file this
ARP but through no fault of [his] own it never happened.” Id.
Plaintiff attaches to the Complaint a handwritten copy of what he alleges is
the ARP he drafted in the infirmary, but that was never picked up. See Ex. “A”  at 1-9. The date above Plaintiff’s signature on this document is March 24, 2015.
Id. at 9. The “Statement of Claim” in the ARP mentions Plaintiff’s work at the
George County CWC, his leg injury and treatment, and his attempts to submit an
ARP. Id. at 3-6.
Plaintiff filed the Complaint  in this case on March 24, 2016, pursuant to
42 U.S.C. §1983, naming as Defendants Marshall Fisher (“Fisher”); Unknown
Crawson, later identified as Judy Clawson (“Clawson”);1 and Jason Unknown
(“Jason”). Id. at 1-2. Pursuant to Orders ,  entered on June 2 and 10,
2016, the Magistrate Judge directed the Clerk to add John and Jane Does, Dr.
Woodall, Nurse Patterson, and Nurse Brown as Defendants. Order  at 1; Order
 at 1. On June 14, 2016, the Court dismissed Nurses Patterson and Brown.
Order  at 5.
Plaintiff claims that Fisher is liable on a theory of respondeat superior
because “it is his duty to properly train and provide proper equipment for the
officers under him.” Pl.’s Answers to the Court  at 1. Plaintiff asserts that
Clawson “violated [his] constitutional rights because as the individual in charge at
the George County Community Work Center she should have made sure that
[Plaintiff] had the necessary safety equipment.” Id.
Plaintiff alleges that Dr. Woodall “failed to follow Dr. Gregg’s (a specialist)
orders, which were to walk about for 30 minutes every day to prevent a blood clot
and stiffness. Further I did not continue the physical therapy which was started at
Forest [sic] General Hospital.” Id. at 2.
On June 22, 2016, Defendant Woodall filed a Motion  to Dismiss for
Failure to Exhaust Available Administrative Remedies under the Prison Litigation
Fisher and Clawson’s Answer  identified “Unknown Crawson” as Judy Clawson.
However, no Motion has been filed to correct her name on the docket.
Reform Act, 42 U.S.C. § 1997e(a) (the “PLRA”). Woodall’s Mot.  at 1-2.
Woodall argues that the ARP Plaintiff allegedly attempted to submit does not
mention any claims against him, such that Plaintiff’s attempts to justify his failure
to exhaust administrative remedies fail as to Woodall. Id. at 2.
Plaintiff responded that “[r]emedies for plaintiff are no longer available due
to inability to avail to them [sic] prior as mention [sic] in 9(23).” Pl.’s Resp.  at
1. Based upon the address on the envelope provided by Plaintiff with his Response
, the Clerk of Court updated Plaintiff’s address on the docket to be Central
Mississippi Correctional Facility in Pearl, Mississippi.
On November 15, 2016, the Magistrate Judge entered a Report and
Recommendation . The Magistrate Judge determined that Plaintiff failed to
exhaust his administrative remedies as to his claim against Woodall, R. & R.  at
7, and recommended that Defendant Woodall’s Motion  to Dismiss be granted,
On November 21, 2016, the Court received an acknowledgement  of
receipt, indicating that Plaintiff had received the Report and Recommendation .
However, on December 5, 2016, the envelope containing the Report and
Recommendation  was returned as undelivered. The envelope was marked
“RETURN TO SENDER” and “Parole.” Returned Envelope  at 1.
Over three months have passed since the Magistrate Judge entered his
Report and Recommendation , and Plaintiff has not updated his mailing address
with the Clerk of Court. Nor has Plaintiff filed any objections to the Report and
Recommendation, and the time for doing so has passed. Plaintiff has not filed
anything in this case since he submitted his Response  to Woodall’s Motion 
to Dismiss on August 24, 2016, nearly six months ago.
On November 17, 2016, Defendants Fisher and Clawson filed a Motion 
for Summary Judgment for Failure to Exhaust Administrative Remedies. Plaintiff
has not responded to Fisher and Clawson’s Motion .
The Court will adopt the Magistrate Judge’s Report and Recommendation
 and grant Woodall’s Motion  to Dismiss.
Where no party has objected to a 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 or recommendations to which objection
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. Even if the Court conducted a de novo review, the
result would be the same. Assuming Plaintiff drafted the “Request for
Administrative Remedy” on March 24, 2015, while he was in the infirmary and was
somehow prevented from submitting it, as he alleges, the “Request for
Administrative Remedy” does not mention any claims against Woodall. The
Request only mentions Dr. Woodall in passing, stating that “since I was released
from Dr. Woodall in May of 2014 [sic], I have been denied legal services because I
have been moved through the system so much.” Ex. “A” [1-1] at 6. The Request
itself does not appear to charge Dr. Woodall with any type of wrongful conduct. See
Plaintiff has not exhausted his administrative remedies as to his claim
against Woodall. See Cowart v. Erwin, 837 F.3d 444, 451 (5th Cir. 2016) (“The
PLRA requires prisoners to exhaust ‘such administrative remedies as are available’
prior to filing a § 1983 action regarding prison conditions.”) (quoting 42 U.S.C. §
1997e(a)). The Court will therefore adopt the Magistrate Judge’s Report and
Recommendation , grant Woodall’s Motion  to Dismiss, and dismiss
Plaintiff’s claims against Woodall without prejudice.
Defendants Fisher and Clawson’s Motion for Summary Judgment should be
Relevant legal standards
Rule 56(a) provides that summary judgment is appropriate “if the movant
shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). If the movant
carries this burden, “the nonmovant must go beyond the pleadings and designate
specific facts showing that there is a genuine issue for trial.” Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc).
To rebut a properly supported motion for summary judgment, the opposing
party must show, with “significant probative evidence,” that there exists a genuine
issue of material fact. Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th
Cir. 2000). “A genuine dispute of material fact means that evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Royal v. CCC&R
Tres Arboles, L.L.C., 736 F.3d 396, 400 (5th Cir. 2013) (quotation omitted). If the
evidence is merely colorable, or is not significantly probative, summary judgment is
appropriate. Cutting Underwater Techs. USA, Inc. v. ENI U.S. Operating Co., 671
F.3d 512, 516 (5th Cir. 2012) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249 (1986)). In deciding whether summary judgment is appropriate, the Court
views facts and inferences in the light most favorable to the nonmoving party.
RSR Corp. v. Int’l Ins. Co., 612 F.3d 851, 858 (5th Cir. 2010).
“The PLRA requires prisoners to exhaust ‘such administrative remedies as
are available’ prior to filing a § 1983 action regarding prison conditions.” Cowart,
837 F.3d at 451 (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 has 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)). “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)). When faced with a motion for summary
judgment based upon failure to exhaust, the Fifth Circuit has held that “judges may
resolve factual disputes concerning exhaustion without the participation of a jury.”
Dillon v. Rogers, 596 F.3d 260, 272 (5th Cir. 2010); see also Hanna v. Anderson, 624
F. App’x 186, 187 (5th Cir. 2015).
Defendants Fisher and Clawson have demonstrated that they are
entitled to summary judgment.
Defendants Fisher and Clawson argue that Plaintiff failed to exhaust
available administrative remedies as to his claims against them.
Fisher and Clawson have presented competent summary judgment evidence
indicating that Plaintiff “has not filed a grievance through the Administrative
Remedy Program at SMCI regarding breaking his leg in February 2015 while
working on road maintenance detail with the county.”
Aff. of Joseph Cooley [31-1]
Plaintiff has not responded to the Motion for Summary Judgment or
otherwise submitted any competent summary judgment evidence in opposition to
dispute Defendants Fisher and Clawson’s assertions.
In Plaintiff’s form Complaint , he marked “No” when asked whether he
had “present[ed] to the grievance system the same facts and issues you allege in
Compl.  at 1.
Plaintiff attached an ARP which he allegedly
“prepared while in the infirmary in March 2014 [sic] that was never picked up by
Ex. “A” [1-1] at 1.
The Complaint attempts to explain Plaintiff’s failure to
file an ARP:
During the specified time frame for the grievance system in MDOC, I
was in the hospital at Forrest General as a result of the injuries that I
am complaining about in this lawsuit. I spent more than 1 month in
traction and severe pain. As set forth in the State of Claim section in
this lawsuit, and a [sic] exhibit that I am also attaching, I tried to file
this ARP while I was in the infirmary.
But seeing how I had a shattered left leg I could not physically put the
form in the box, so I had to rely on staff to do this. Either the staff did
not drop the form or it was ignored by the ILAP staff. Now I am time
barred from filing it and the time limit for being able to file this . . . .
I tried in good faith [to use the grievance procedures], but I was in the
hospital at Forrest General in traction, then I was at the infirmary at
SMCI in a [sic] observation cell for 3 months from March to May of 2015.
Compl.  at 3-4.
Plaintiff’s Complaint was signed under penalty of perjury. Id. at 12.
However, there is some discrepancy between the dates and facts contained in the
Complaint and those in the “Request for Administrative Remedy” which Plaintiff
allegedly “prepared while in the infirmary in March 2014 [sic] . . . .” Ex. “A” [1-1]
at 1. The “Request for Administrative Remedy” was purportedly drafted on March
24, 2015, Ex. “A” [1-1] at 2 & 9, while Plaintiff was in the SMCI infirmary, see
Compl.  at 3, but the exhibit itself claims that Plaintiff had been denied legal
services “since [he] was released from Dr. Woodall in May of 2014 [sic],” Ex. “A”  at 6; see also Compl.  at 7 (“I was transported to SMCI infirmary where I
remained until May of 2015, until released by Dr. Woodall back to general
The “Request for Administrative Remedy” also states that Plaintiff “was
housed in the infirmary for March, April and May of 2015, to heal up, completely
isolated except for contact with the medical staff.” Id. at 6. This appears to be
inconsistent with Plaintiff’s assertion that he drafted this document while in the
infirmary on March 24, 2015. Compare id. at 6, with id. at 9; Compl.  at 3. It is
clear from the text of the “Request for Administrative Remedy” itself that this
document was prepared at some point after May 2015, rather than in March 2015.
Regardless of when the “Request for Administrative Remedy” was actually
drafted, Plaintiff has not alleged that he ever actually submitted or attempted to
submit the “Request for Administrative Remedy” after he was released from the
infirmary and placed back into the general population of the prison. The Fifth
Circuit has held that administrative remedies are deemed unavailable for a
temporary injury only when “(1) an inmate’s untimely filing of a grievance is
because of a physical injury and (2) the grievance system rejects the inmate’s
subsequent attempt to exhaust his remedies based on the untimely filing of a
grievance.” Days v. Johnson, 322 F.3d 863, 867-68 (5th Cir. 2003), overruled by
implication on other grounds by Jones v. Bock, 549 U.S. 199, 216 (2007).
According to the Complaint, Plaintiff’s injury occurred on February 8, 2015,
Compl.  at 5, and Plaintiff was released from the infirmary in May 2015, id., but
he did not execute his Complaint  until March 8, 2016, id. at 12. Assuming for
the sake of argument that Plaintiff was unable to file an ARP because of his
physical injury until he was released from the infirmary, there is no indication in
the record that Plaintiff’s ARP was rejected as untimely, or that Plaintiff ever
attempted to submit an ARP after he was released by Dr. Woodall. See Days, 322
F.3d at 867-68.
Even if Plaintiff was unable to submit an ARP while he was
undergoing medical treatment, this did not obviate the need to attempt to exhaust
his available administrative remedies before filing this lawsuit.
Based upon the record as a whole and relevant legal authority, the Court
finds that Plaintiff has not exhausted his available administrative remedies.
Defendants Fisher and Clawson’s Motion for Summary Judgment should be
granted, and Plaintiff’s claims against Fisher and Clawson will be dismissed
Plaintiff’s claims should also be dismissed without prejudice for failure to
This Court has the authority to dismiss an action for a plaintiff’s failure to
prosecute under Federal Rule of Civil Procedure 41(b), and under its inherent
authority to dismiss the action sua sponte. See Link v. Wabash Railroad, 370 U.S.
626, 630-31 (1962); McCullough v Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988).
The Court must be able to clear its calendars of cases that remain dormant because
of the inaction or dilatoriness of the parties seeking relief, so as to achieve the
orderly and expeditious disposition of cases. Such a sanction is necessary in order
to prevent undue delays in the disposition of pending cases and to avoid congestion
in the calendars of the Court. See Link, 370 U.S. at 629-30.
Plaintiff has not kept the Court apprised of his mailing address, even after
being warned numerous times that failure to do so would be deemed a purposeful
delay and contumacious act and may result in the dismissal of his case. See, e.g.,
Order  at 2; Order  at 2; Order  at 3; Order  at 2-3; Order  at 2.
Plaintiff has filed nothing in this case in over six months, since he responded  to
Defendant Woodall’s Motion to Dismiss  on August 24, 2016.
Nor has Plaintiff
updated his address in the time since the Magistrate Judge’s Report and
Recommendation was entered and mailed to him on November 15, 2016, three and
a half months ago. Such inaction represents a clear record of delay or
contumacious conduct by Plaintiff.
longer wishes to pursue this case.
It is apparent to the Court that Plaintiff no
Dismissal is also warranted on this basis.
The Magistrate Judge’s Report and Recommendation  is neither clearly
erroneous or contrary to law, and will be adopted as the finding of the Court.
Further, Defendants Fisher and Clawson are entitled to summary judgment based
upon Plaintiff’s failure to exhaust administrative remedies as to his claims against
Defendant Woodall’s Motion  to Dismiss and Defendants Fisher and
Clawson’s Motion  for Summary Judgment will both be granted. Plaintiff’s
claims against Defendants Woodall, Fisher, and Clawson will be dismissed without
IT IS, THEREFORE, ORDERED AND ADJUDGED that, the Report and
Recommendation  of United States Magistrate Judge John C. Gargiulo, entered
in this case on November 15, 2016, is adopted in its entirety as the finding of this
IT IS, FURTHER, ORDERED AND ADJUDGED that, the Motion  to
Dismiss for Failure to Exhaust Available Administrative Remedies filed by
Defendant Ronald Woodall is GRANTED.
IT IS, FURTHER, ORDERED AND ADJUDGED that, the Motion  for
Summary Judgment for Failure to Exhaust Administrative Remedies filed by
Defendants Marshall Fisher and Unknown Crawson is GRANTED.
IT IS, FURTHER, ORDERED AND ADJUDGED that, Plaintiff Jonathan
M. Robinson’s claims against Defendants Ronald Woodall, Marshall Fisher, and
Unknown Crawson 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 1st day of March, 2017.
s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE
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