Kirkwood v. Fisher et al

Filing 65

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 62 Report and Recommendations, granting 52 Motion for Summary Judgment filed by Lisa Herndon, Marshal Turner, Jaqueline Banks, Faytonia Johnson, Ron King, Latasha Clay, Brenda Sims, Marsha ll Fisher, Lekenya Cobb, Roderick Evans, Sheniece Evans, Mark Davis. Plaintiff's claims of failure to protect and destruction of legal paperwork are Dismissed without prejudice for failure to exhaust. Plaintiff's claim of retaliation is Dismissed with prejudice. Signed by Chief District Judge Louis Guirola, Jr. on 8/31/2017 (wld)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
THURMAN KIRKWOOD

PLAINTIFF

v.

CAUSE NO. 1:16CV119-LG-RHW

MARSHALL FISHER, ET AL.

DEFENDANTS

ORDER ADOPTING REPORT AND RECOMMENDATION,
AND GRANTING MOTION FOR SUMMARY JUDGMENT
This cause comes before the Court on the Proposed Findings of Fact and
Recommendation [62] of United States Magistrate Judge Robert H. Walker entered
in this cause on July 31, 2017. Plaintiff Kirkwood filed this lawsuit pursuant to 42
U.S.C. § 1983 complaining of events that allegedly occurred while he was confined in
the South Mississippi Correctional Institution. He alleges 1) failure to protect from
assault; 2) destruction of legal paperwork; and 3) retaliation in the form of falsified
Rule Violation Reports (“RVRs”). The defendants filed a motion for summary
judgment asserting that Kirkwood had failed to exhaust the first two claims, and the
third claim was barred by the statute of limitations in part and lacking factual
support in part. Kirkwood then filed documents which the Magistrate Judge
construed as a response. After reviewing the submissions of the parties and the
relevant law, Magistrate Judge Walker recommended that the defendants’ summary
judgment motion be granted and the plaintiff’s claims dismissed.
THE LEGAL STANDARD
Kirkwood filed an objection to the Magistrate Judge’s findings and
conclusions. The Court must review any objected-to portions de novo. See

Kreimerman v. Casa Veerkamp, S.A. de C.V., 22 F.3d 634, 646 (5th Cir. 1994);
Longmire v. Guste, 921 F.2d 620, 623 (5th Cir. 1991). Such a review means that the
Court will consider the record which has been developed before the Magistrate
Judge and make its own determination on the basis of that record. United States v.
Raddatz, 447 U.S. 667, 675 (1980). The Court need not, however, conduct a de novo
review when the objections are frivolous, conclusive, or general in nature. Battle v.
U. S. Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987). No factual objection is
raised when a petitioner merely re-urges arguments contained in the original
petition. Edmond v. Collins, 8 F.3d 290, 293 (5th Cir. 1993).
DISCUSSION
Kirkwood’s objection goes to his first two claims. He states that his rights
were violated, and that he “did exhaust said matters by and through the prison
grievance system” but that “his grievance of the matter was destroyed by the
defendants” and “the filing of the grievance was the root of the retaliation.” (Pl. Obj.
1, ECF No. 64). It is unclear which grievance Kirkwood refers to, but there was
uncontradicted evidence that Kirkwood had not filed grievances concerning the
matters the Magistrate Judge found to be unexhausted. (Cooley Aff. 1, ECF No. 521). Kirkwood’s objection is without merit because it is contradicted by the record.
The Magistrate Judge was correct to conclude that Kirkwood had failed to show a
question of material fact regarding whether he had exhausted his administrative
remedies.
Having reviewed the remainder of the Proposed Findings of Fact and
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Recommendation, the Court finds it neither clearly erroneous nor contrary to law.
The Magistrate Judge properly concluded that the summary judgment motion
should be granted and this case dismissed. The Proposed Findings of Fact and
Recommendation will be adopted as the findings and conclusions of this Court.
IT IS THEREFORE ORDERED AND ADJUDGED that the Proposed
Findings of Fact and Recommendation [62] of United States Magistrate Judge
Robert H. Walker entered in this cause on July 31, 2017, should be, and the same
hereby is, adopted as the findings of this Court.
IT IS FURTHER ORDERED AND ADJUDGED that the defendants’
Motion [52] for Summary Judgment is GRANTED. Plaintiff’s claims of failure to
protect and destruction of legal paperwork are DISMISSED without prejudice for
failure to exhaust. Plaintiff’s claim of retaliation is DISMISSED with prejudice.
SO ORDERED AND ADJUDGED this the 31st day of August, 2017.
s\

Louis Guirola, Jr.

Louis Guirola, Jr.
Chief U.S. District Judge

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