Walker v. Hollaway et al

Filing 168

ORDER granting 139 Motion for Summary Judgment; adopting Report and Recommendations re 157 Report and Recommendations as the opinion of this Court; denying 162 Motion to Review of Magistrate Judge Order Plaintiff's claims against Defendants are dismissed without prejudice for failure to exhaust administrative remedies. Signed by District Judge Louis Guirola, Jr. on 8/10/20. (RLW)

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
DEMARIO DONTEZ WALKER
v.

PLAINTIFF
CAUSE NO. 1:17CV244-LG-RPM

JAMARIO CLARK, ET AL.

DEFENDANTS

ORDER ADOPTING REPORT AND RECOMMENDATION, GRANTING
MOTION FOR SUMMARY JUDGMENT, AND DENYING APPEAL
BEFORE THE COURT is the [157] Report and Recommendation entered by
Magistrate Judge Robert H. Walker on July 13, 2020, as well as Plaintiff’s [161]
Objections and [164] Supplemental Objections thereto. Judge Walker recommends
that the [139] Motion for Summary Judgment filed by Defendants Ronald King and
Pamela Robinson (“Defendants”) be granted. Also before the Court is Plaintiff’s
[162] Appeal of Orders entered by Judge Walker on July 13, 2020. Specifically,
Plaintiff appeals the Judge’s [154] Order Denying Motion to Compel and [155]
Order Denying Motion for Record Replacement, Motion for Additional Legal
Assistance, and Motion to Extend All Deadlines.
I.

Report & Recommendation
A party that files a timely objection is entitled to a de novo determination of

those portions of the report or specified proposed findings or recommendations to
which specific objection is made. United States v. Raddatz, 447 U.S. 667, 673
(1980); 28 U.S.C. § 636(b)(1). The objections must specifically identify those
findings or recommendations to which objections are being made. The district court
need not consider frivolous, conclusive, or general objections. Battle v. U.S. Parole

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Comm’n, 834 F.2d 419, 421 (5th Cir. 1987). Moreover, where the objections are
repetitive of the arguments already made to the magistrate judge and the district
court finds no error, the court need not make new findings or reiterate the findings
of the magistrate judge. Hernandez v. Livingston, 495 F. App’x 414, 416 (5th Cir.
2012); Koetting v. Thompson, 995 F.2d 37, 40 (5th Cir. 1993).
The record indicates that the Court received Plaintiff’s Objections on July 23,
2020. (See Envelope, ECF No. 161-2). By operation of the “mailbox rule,” Plaintiff
filed his Objections when he deposited them in the prison mail system, which took
place on or before July 23, 2020. Dickerson v. Nash, No. 3:17CV779-DCB-LRA,
2020 WL 3840031, at *1 (S.D. Miss. July 8, 2020). Hence, Plaintiff’s Objections
were timely filed within the applicable fourteen-day period. See 28 U.S.C. §
636(b)(1). Plaintiff’s Supplemental Objections were mailed on July 27, 2020, also
within the fourteen-day period. (See Envelope, ECF No. 164-1). The Court must
therefore make a de novo determination of the issues to which Plaintiff objected.
In his Report and Recommendation, the Magistrate Judge observed that
Plaintiff’s lawsuit was filed before he sustained the injuries allegedly caused by
Defendants. (R. & R. 3-5, ECF No. 157). Therefore, Plaintiff could not have
exhausted his administrative remedies prior to filing the Complaint, a conclusion
which is corroborated by a grievance submittal which postdates the Complaint. (Id.
at 5). Plaintiff’s Objections do not surmount these observations or provide any
evidence that he exhausted his administrative remedies with respect to these
claims. See, e.g., Gonzalez v. Seal, 702 F.3d 785, 788 (5th Cir. 2012) (“District

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courts have no discretion to excuse a prisoner’s failure to properly exhaust the
prison grievance process before filing their complaint. It is irrelevant whether
exhaustion is achieved during the federal proceeding. Pre-filing exhaustion is
mandatory, and the case must be dismissed if available administrative remedies
were not exhausted.”). For the reasons stated in Magistrate Judge Walker’s Report
and Recommendation, Defendants’ Motion for Summary Judgment will be granted
and Walker’s claims against them dismissed without prejudice.
II.

Appeal
“A party aggrieved by a magistrate judge’s ruling may appeal the ruling to

the assigned district judge.” L. U. Civ. R. 72(a)(1)(A). The Local Rules provide:
No ruling of a magistrate judge in any matter which he or she is
empowered to hear and determine will be reversed, vacated, or
modified on appeal unless the district judge determines that the
magistrate judge’s findings of fact are clearly erroneous, or that the
magistrate judge’s ruling is clearly erroneous or contrary to law.
L. U. Civ. R. 72(a)(1)(B). Similarly, 28 U.S.C. § 636(b)(1)(A) provides that “[a] judge
of the court may reconsider any pretrial matter under this subparagraph (A) where
it has been shown that the magistrate judge’s order is clearly erroneous or contrary
to law.”
In denying Plaintiff’s Motion to Compel, the Magistrate Judge found that the
Motion was filed after the close of discovery and did not present any reason to
reopen it. (See Order Denying Mot. Compel, ECF No. 154). Plaintiff argues on
appeal that he attempted to communicate with counsel and grant Defendants
additional time to respond to discovery. “However, if the conduct of a respondent to
discovery necessitates a motion to compel, the requester of the discovery must
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protect himself by timely proceeding with the motion to compel. If he fails to do so,
he acts at his own peril.” Wells v. Sears Roebuck & Co., No. 3:01CV35-BN, 203
F.R.D. 240, 241 (S.D. Miss. Oct. 26, 2001). Plaintiff’s courtesies to opposing counsel
cannot excuse his untimely Motion to Compel.
In the other Order, the Magistrate found that Plaintiff had not presented any
compelling need for additional legal assistance and copies of certain legal
documents, nor to extend all deadlines beyond those contained in the scheduling
order. (See Order Denying Mots. 1-2, ECF No. 155). Plaintiff argues on appeal that
he needs these documents and extensions to respond to Defendants’ Motion for
Summary Judgment. However, this Motion has already been briefed, complete with
an opposition by Plaintiff (Pl.’s Resp. Def.’s Mot. Summ. J., ECF No. 146), which
was followed by a brief in support of Plaintiff’s Objections to the Magistrate’s Report
and Recommendation. (Obj. R. & R., ECF No. 161). Plaintiff has not offered any
other compelling reason for the Court to grant the relief he seeks.
IT IS ORDERED AND ADJUDGED that the [157] Report and
Recommendation is ADOPTED as the opinion of this Court.
IT IS, FURTHER, ORDERED AND ADJUDGED that the [139] Motion for
Summary Judgment filed by Defendants Pamela Robinson and Ronald King is
GRANTED. Plaintiff’s claims against Defendants are DISMISSED WITHOUT
PREJUDICE for failure to exhaust administrative remedies.
IT IS ORDERED AND ADJUDGED that Plaintiff’s [162] Appeal of the
Magistrate Judge’s Rulings is DENIED.

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SO ORDERED AND ADJUDGED this the 10th day of August, 2020.
s/

Louis Guirola, Jr.

LOUIS GUIROLA, JR.
UNITED STATES DISTRICT JUDGE

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