Jackson v. Fisher et al
MEMORANDUM OPINION AND ORDER ORDER denying 34 Motion to Amend/Correct; adopting Report and Recommendations re 38 Report and Recommendations.; denying 3 Motion for Preliminary Injunction; granting 23 Motion for Summary Judgment; denying 31 Motion for Joinder. This civil action is Dismissed without prejudice. Signed by District Judge Halil S. Ozerden on 2/6/2017 (wld)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
MARSHALL FISHER in his
individual and official capacities
as Commissioner of MDOC;
JACQUELYN BANKS in her
individual and official capacities
as Superintendent of SMCI; and
CENTURION (Company), Medical
CIVIL NO.: 1:16cv199-HSO-JCG
MEMORANDUM OPINION AND ORDER ADOPTING THE MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION , DENYING
PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION , DENYING
PLAINTIFF’S MOTION FOR JOINDER OF PARTY , DENYING
PLAINTIFF’S MOTION TO AMEND PLEADING , AND GRANTING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 
This matter comes before the Court on pro se Plaintiff David Jackson’s
Objection  and Supplemental Objection  to the Report and Recommendation
 of United States Magistrate Judge John C. Gargiulo, entered in this case on
November 17, 2016, regarding four pending motions: (1) Plaintiff’s Motion for
Preliminary Injunction ; (2) Plaintiff’s Motion for Joinder of Party ; (3)
Plaintiff’s Motion to Amend Pleading ; and (4) Defendants Marshall Fisher’s
and Jacquelyn Banks’ Motion for Summary Judgment . Based upon his review
of Defendants’ Motion , related pleadings, and relevant legal authority, the
Magistrate Judge recommended that Defendants’ Motion for Summary Judgment
 be granted and that this case be dismissed. R. & R.  at 2. Magistrate
Judge Gargiulo also recommended that Plaintiff’s motions should be denied. Id.
Plaintiff filed his Objection  to the Report and Recommendation  on
December 2, 2016, and was permitted to file a Supplemental Objection  on
December 22, 2016. After thoroughly reviewing Plaintiff’s Objections , , the
Magistrate Judge’s Report and Recommendation , the four pending motions, 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.
motions should be denied, Defendants’ Motion for Summary Judgment  should
be granted, and this case should be dismissed without prejudice.
FACTS AND PROCEDURAL HISTORY
Plaintiff is currently in the custody of the Mississippi Department of
Corrections (“MDOC”) and is incarcerated in the South Mississippi Correctional
Institution (“SMCI”). Compl.  at 4. Plaintiff filed a Complaint  in this Court
on June 10, 2016, pursuant to 42 U.S.C. ' 1983, naming Marshall Fisher, the
MDOC Commissioner, Jacquelyn Banks, the SMCI Superintendent, and Centurion,
a medical services provider, as Defendants. Id. at 2. Plaintiff alleges that he is
not receiving any treatment for his medical conditions, including gastroesophageal
reflux disease, degenerative joint disease, major depression, and Hepatitis C, which
Plaintiff claims he was exposed to while incarcerated at SMCI. Id. at 4-7. On the
same date as the Complaint  was filed, Plaintiff filed the Motion for Preliminary
Injunction  requesting an order directing Defendants to provide Plaintiff with
necessary medical care. Mot. Prelim. Inj.  at 3.
Plaintiff subsequently filed the Motion for Joinder of Party , seeking to
add “Dr. Deese,” a physician employed by Centurion, as a Defendant. Plaintiff also
filed the Motion to Amend Pleading , seeking to add a claim regarding the
service of his meals by unsupervised inmates. Defendants have not filed any
response to Plaintiff’s pending motions.
Prior to filing this lawsuit, Plaintiff had previously accumulated three
qualifying dismissals, or “strikes,” for bringing past unsuccessful and frivolous civil
actions under the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. 1915. R. & R.
 at 2. Under the PLRA, Plaintiff is only permitted to proceed in forma pauperis
in future civil actions or appeals if he is “under imminent danger of serious physical
injury.” 28 U.S.C. § 1915(g). Despite having three strikes, Plaintiff was permitted
to proceed in forma pauperis in this suit because the Court “could not definitely
state that Plaintiff did not meet the imminent danger exception to the three-strikes
rule.” R. & R.  at 2; Order  at 1.
Defendants Banks and Fisher filed this Motion for Summary Judgment 
on October 6, 2016, arguing that Plaintiff’s case should be dismissed due to his
failure to exhaust administrative remedies as required by the PLRA.1 Mem. Supp.
Defendant Centurion joined in the Motion for Summary Judgment  and the
Memorandum in Support of the Motion . See Joinder .
Mot. Summ. J.  at 2-3. Defendants point to Plaintiff’s Complaint , in which
he admits that he did not participate in the two-step MDOC Administrative
Remedy Program (“ARP”) regarding his grievances because “[it] would be fruitless
because I have already talked to the medical administrator, and was denied.”
Compl.  at 3. Defendants also submitted the Affidavit [23-1] of Joseph Cooley,
the custodian of the ARP records at SMCI, who states that the program has no
record of Plaintiff’s alleged exposure and contraction of Hepatitis C or his claim of
the denial of medical treatment. Cooley Aff. [23-1] at 1. Plaintiff did not file a
response to the Motion for Summary Judgment . However, Plaintiff did file an
Exhibit List  and an Attachment  “to be offered as evidence in this case.”
Exh. List  at 1.
The Magistrate Judge entered a Report and Recommendation  on
November 17, 2016, recommending that Plaintiff’s conditions-of-confinement case
be dismissed without prejudice.
R. & R.  at 2.
The Magistrate Judge
determined that dismissal of this suit is mandatory under the PLRA because
Plaintiff failed to exhaust the available administrative remedies prior to filing the
Id. at 1. The Magistrate Judge recommended that Defendants’ Motion
for Summary Judgment  be granted and that Plaintiff’s Motion for Preliminary
Injunction  be denied. Id. at 8.
The Magistrate Judge further recommended that Plaintiff’s Motion for
Joinder of Party  be denied as futile because Plaintiff’s § 1983 claims regarding
medical treatment are barred. Id. at 8-9. The Magistrate Judge also
recommended that Plaintiff’s Motion to Amend Pleading  be denied because the
proposed new claim regarding food service does not qualify for the imminent danger
exception to the three-strikes rule and is therefore precluded by the PLRA. Id. at
Plaintiff filed a written Objection  to the Report and Recommendation
 on December 2, 2016. On December 22, 2016, the Court permitted Plaintiff to
file a Supplemental Objection .
Defendants have not responded to the
Objections , .
Standard of Review
Because Plaintiff has filed written Objections ,  to the Magistrate
Judge’s Report and Recommendation , the Court is required to “make 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); see also
Longmire v. Gust, 921 F.2d 620, 623 (5th Cir. 1991) (a party is “entitled to a de novo
review by an Article III Judge as to those issues to which an objection is made”).
“Such review means that this Court will examine the entire record and will make
an independent assessment of the law.” Lambert v. Denmark, No. 2:12cv74-KSMTP, 2013 WL 786356, *1 (S.D. Miss. Mar. 1, 2013). The Court is not required,
however, “to reiterate the findings and conclusions of the magistrate judge,”
Koetting v. Thompson, 995 F.2d 37, 40 (5th Cir. 1993), nor need it consider
objections which are frivolous, conclusive, or general in nature, Battle v. U.S. Parole
Comm’n, 834 F.2d 419, 421 (5th Cir. 1997). Where a party fails to file specific
objections to the Magistrate Judge’s Report and Recommendation , the Court
applies the “clearly erroneous, abuse of discretion and contrary to law” standard of
United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989).
Federal Rule of Civil Procedure 56(a) states that “[t]he court shall grant
summary judgment 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.”
CIV. P. 56(a). Under Rule 56(c), a party asserting that a fact cannot be or is
genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made for
purposes of the motion only), admissions, interrogatory answers,
or other materials; or
(B) showing that the materials cited do not establish the absence
or presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.
FED. R. CIV. P. 56(c).
The PLRA requires prisoners to exhaust available administrative remedies
before filing a conditions-of-confinement lawsuit.
42 U.S.C. § 1997e(a).
“[E]xhaustion is a threshold issue that courts must address to determine whether
litigation is being conducted in the right forum at the right time.”
Dillon v. Rogers,
596 F.3d 260, 272 (5th Cir. 2010).
Dismissal is mandatory where a prisoner fails to
properly exhaust available administrative remedies before filing suit in federal
Gonzalez v. Seal, 702 F.3d 785, 788 (5th Cir. 2012).
“[J]udges may resolve
factual disputes concerning exhaustion without the participation of a jury.”
596 F.3d at 272.
With respect to dismissal for failure to exhaust administrative remedies,
Plaintiff objects that summary judgment is inappropriate on two grounds. First,
Plaintiff argues that he did in fact complete the MDOC ARP.
argues that his failure to complete the MDOC ARP before filing suit was justified
because there were no administrative remedies truly available to him.
reviewing the record, the Court finds that Plaintiff’s Objections ,  should be
overruled and his claims must be dismissed pursuant to the PLRA.
In his Supplemental Objection , Plaintiff disputes the Magistrate Judge’s
finding that Plaintiff did not complete the ARP program with respect to the claims
that he has been denied treatment for gastroesophageal reflux disease,
degenerative joint disease, major depression, and Hepatitis C. Supp. Obj.  at 8.
Plaintiff claims to have submitted evidence in an Exhibit List  of “grievances
regarding hepatitis and other conditions.”
However, the Court has reviewed
the record and is not persuaded that the evidence supports a finding that Plaintiff
has completed MDOC’s ARP regarding the denial of treatment for these conditions.
On the contrary, Plaintiff’s submissions contradict his claim that he has “filed
numerous ARPs requesting medical treatment but to no avail.”2 Exh. List  at
An ARP Second Step Response Form from 2010 demonstrates that Plaintiff
complained of, and was treated for, lower back pain and that he requested an HIV
test, which he received.
Id. at 6.
Plaintiff submitted two other Second Step
Response Forms from 2013 which both state: “2nd step invalid as no new issues
raised from 1st step with treatment provided.”
Id. at 9, 11.
The Court is unable
to discern from this single sentence what grievances were being addressed or
whether the concerns were related to the claims in this lawsuit. The only other
ARP documentation submitted by Plaintiff is a First Step Response Form from
October 2013 which describes the treatment Plaintiff received for arthralgia and
dermatitis.3 Id. at 10.
In sum, the Court finds that Plaintiff’s Objections ,
Plaintiff has filed numerous lawsuits since obtaining three strikes. See R. & R.  at 35. In several of these suits, Plaintiff alleged similar claims to those in this case, including
denial of medical treatment and inadequate treatment for Hepatitis C. The Court notes
that on several occasions courts have found that Plaintiff was not deprived of medical
treatment, but rather was provided with medical treatment with which he disagreed. See
Jackson v. Wexford Health Sources, Inc., No. 2:13cv19-KS-MTP (S.D. Miss. Feb. 20, 2013)
(ECF. No. 13, at 3) (“Plaintiff’s use of the phrase imminent danger in his complaint is
simply an effort to craft his pleadings in a manner which would circumvent the § 1915(g)
bar.”); Jackson v. Johnson, No. 4:10mc2-JAD (N.D. Miss. Oct. 5, 2010) (ECF No. 6, at 2)
(Plaintiff’s “disagreement with the treatment he received does not state a cognizable claim
under § 1983”); Jackson v. Epps, No. 4:07cv26-MPM-EMB (N.D. Miss. Feb. 7, 2007) (ECF
No. 7, at 2) (“It is clear from the pleadings that Plaintiff has received medical treatment.”).
3 The remaining submissions appear to be wholly irrelevant to the issue of whether
Plaintiff sought administrative remedies for his grievances because they do not
demonstrate that any ARP was ever filed regarding his instant § 1983 claims. See Exh.
List  at 7 (a Medical Service Request Form from 2013 requesting ointment for a rash
Plaintiff had on his leg); id. at 8 (correspondence from 2013 indicating that Plaintiff was
treated on the same day his letter expressing concern about medical care was written); id.
at 12 (letter informing Plaintiff that the “lab drawn on 3.28.16 will be discussed with
[Plaintiff] at [his] next visit”). The Attachment  filed by Plaintiff on November 23,
 should be overruled because Plaintiff has not submitted competent evidence
that he completed the ARP with respect to the claims alleged in this lawsuit.
Plaintiff also argues that, even if he did not complete the ARP with respect to
his denial of treatment claims, the failure was justified because there was no
administrative remedy available to him from individual Defendants Fisher and
Supp. Obj.  at 3-4.
Plaintiff contends that “Mr. Fisher and Ms. Banks
are asking the [C]ourt to require a process that they know will never reach their
office,” because any medical grievances submitted through the ARP are addressed
by the SMCI Medical Director, rather than by the MDOC Commissioner or the
Obj.  at 6. Plaintiff also argues that administrative
remedies were unavailable to him because he was allegedly told that MDOC would
not pay for Hepatitis C treatment.
Supp. Obj.  at 5.
maintains that the availability of administrative remedies is a disputed fact which
warrants discovery and an evidentiary hearing such that his claims should not be
Id. at 4-7, 9-10.
Plaintiff’s Objections ,  that Defendants are not entitled to summary
judgment on exhaustion grounds because the ARP does “not extend to the
Commissioner Mr. Fisher’s office” and “the Superintendent Ms. Banks, as a policy
[does] not answer any medical grievances” will be overruled.
Obj.  at 6.
2016, consists of a rehashing of the facts and arguments presented in the Complaint  as
well as a 2008 newspaper article from the Clarion Ledger entitled “Prison health-care
provider under fire.” See Newspaper Article [40-1].
fact that a separate party, such as the SMCI Medical Director, aside from the
individual Defendants Fisher and Banks, may be the person who actually answers
grievances related to medical treatment does not render the administrative remedy
It is also irrelevant that Plaintiff believes that participation in the ARP
“would be fruitless because [Plaintiff] ha[s] already talked to the medical
administrator, and was denied.”
Compl.  at 3.
The Magistrate Judge correctly
found that “[t]here is no futility exception to the PLRA’s exhaustion requirement.”
R. & R.  at 8 (citing Booth v. Churner, 532 U.S. 731, 741 n.6 (2001)).
conversations with medical personnel, or any other informal means of complaint he
may have undertaken, do not constitute “proper exhaustion” within the meaning of
Woodford v. Ngo, 548 U.S. 81, 90 (2006); see also Zebrowski v. U.S. Fed.
Bureau of Prisons, 558 F. App’x 355, 360 (5th Cir. 2014).
The remainder of Plaintiff’s Objections ,  do not address the
dispositive issue of Plaintiff’s failure to exhaust the available administrative
remedies before bringing his § 1983 claims in this Court.
For example, Plaintiff
argues that summary judgment is inappropriate because his claims that he is not
receiving adequate medical care have merit and are supported by evidence.
 at 1-5.
Similarly, Plaintiff objects to the recommended denial of his Motion for
Joinder of Party  because the party he seeks to add, Dr. Deese, is “partly the
bases [sic] of my denial of medical treatment claim.”
Id. at 9. These objections
will be overruled for the reason that the Court does not reach the merits of
Plaintiff’s Complaint  as his claims are barred by the PLRA.
Plaintiff further contends that the Magistrate Judge lacked jurisdiction to
rule on his three Motions as well as Defendants’ Motion for Summary Judgment
Supp. Obj.  at 1-2.
This Objection  will be overruled because the
Magistrate Judge did not in fact rule on the instant motions, but only recommended
a disposition of the motions in the Report and Recommendation  pursuant to 28
Plaintiff also objects to the Magistrate Judge’s Order  of August 24, 2016,
denying Plaintiff’s Motion to Appoint Counsel , an issue which is not addressed
by the Magistrate Judge’s Report and Recommendation .
Supp. Obj.  at 2-
This Objection  will be overruled because it is not pertinent to the
instant motions and because it was within the Magistrate Judge’s discretion to
refuse to appoint Plaintiff counsel.
See Ulmer v. Chancellor, 691 F.2d 209, 213 (5th
Plaintiff objects to the Magistrate Judge’s recommendation that the Motion
to Amend Pleading  be denied, arguing that the proposed new claim regarding
the service of food by inmates who are not screened constitutes an imminent danger
exception to the three-strikes rule.
Obj.  at 7.
Plaintiff claims, without
explanation, that “[t]hese conditions have led to the spread of infectious diseases.”
Id. at 8.
Plaintiff further alleges that he “never ha[s] regular size portions” and
“[t]hey are putting flies in trays and other things.”
Mot. to Amend  at 3-4.
The Court finds that Plaintiff’s proposed claim regarding food service does not
satisfy the imminent danger exception to the three-strikes rule under the PLRA.
Moreover, even if the conditions did qualify for the exception, the proposed claim
appears to be barred for failure to exhaust administrative remedies just as
Plaintiff’s other § 1983 claims are barred.
Having conducted a de novo review of the record, the Court agrees with the
conclusions reached by the Magistrate Judge.
Plaintiff has not supplied competent
summary judgment evidence sufficient to demonstrate that he has exhausted the
available administrative remedies before filing this lawsuit as required by the
To the extent that Plaintiff’s Objections ,  raise new or additional
factual allegations, they are insufficient to overcome this dispositive issue and will
The Magistrate Judge’s Report and Recommendation  will be
adopted as the finding of this Court, and this case will be dismissed without
Defendants’ Motion for Summary Judgment  will be granted, and
Plaintiff’s Motion for Preliminary Injunction , Motion for Joinder of Party ,
and Motion to Amend Pleading  will be denied.
IT IS, THEREFORE, ORDERED AND ADJUDGED that, Plaintiff David
Jackson’s Objection  and Supplemental Objection  filed to the Magistrate
Judge’s Report and Recommendation  are OVERRULED.
IT IS, FURTHER, ORDERED AND ADJUDGED that, the Report and
Recommendation  of United States Magistrate Judge John C. Gargiulo, entered
in this case on November 17, 2016, is adopted in its entirety as the finding of this
IT IS, FURTHER, ORDERED AND ADJUDGED that, Plaintiff’s Motion
for Preliminary Injunction , Motion for Joinder of Party , and Motion to
Amend Pleading  are DENIED.
IT IS, FURTHER, ORDERED AND ADJUDGED that, the Motion for
Summary Judgment  filed by Defendants Marshall Fisher and Jacquelyn Bank
is GRANTED, and this civil action is DISMISSED WITHOUT PREJUDICE. A
separate judgment will be entered in accordance with this Order as required by
Federal Rule of Civil Procedure 58.
SO ORDERED AND ADJUDGED, this the 6th day of February, 2017.
s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE
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