McCormick v. Krouse et al

Filing 31

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 29 Report and Recommendations as the finding of this Court. This action is dismissed without prejudice. Signed by District Judge Halil S. Ozerden on 11/19/20. (RLW)

Case 1:19-cv-00976-HSO-JCG Document 31 Filed 11/19/20 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
MASON MONTRELL
MCCORMICK
v.
UNKNOWN KROUSE, et al.

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PLAINTIFF

Civil No. 1:19-cv-976-HSO-JCG
DEFENDANTS

ORDER ADOPTING MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION [29] AND DISMISSING CASE WITHOUT
PREJUDICE
BEFORE THE COURT is United States Magistrate Judge John C. Gargiulo’s
Report and Recommendation [29], which recommends dismissing this action
without prejudice. After due consideration of the Report and Recommendation [29],
the record, and relevant legal authority, the Court finds that the Magistrate Judge’s
Report and Recommendation [29] should be adopted and that this action should be
dismissed without prejudice.
I. BACKGROUND
Plaintiff Mason Montrell McCormick (“Plaintiff”) filed suit against Deputy
Unknown Krouse, Sheriff Troy Peterson, Harrison County Board of Supervisors,
and Harrison County Adult Detention Center on December 18, 2019, alleging that
on September 9, 2017, while he was handcuffed and shackled, Defendant Krouse
slammed him into a table, placed a pair of “sizers” on his neck, cut him, slammed

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him onto the floor, and put his knee on Plaintiff’s neck. Compl. [1] at 5. Plaintiff
later added Earl Leonard as a Defendant, Order [11] at 1, and his claims against
Sheriff Peterson, the Board of Supervisors, and the Detention Center have been
dismissed, Order [12] at 6-7. Defendants Krouse and Leonard raised Plaintiff’s
failure to exhaust administrative remedies as an affirmative defense in their
Answer [17], at which time the Court set a deadline of July 7, 2020, for Defendants
to file any motions based on failure to exhaust administrative remedies. Order [19]
at 2. On June 22, 2020, Plaintiff filed an unsigned “Motion that ARP Remedies was
Done” contending that he had exhausted administrative remedies, but providing no
evidence to support his claims. Mot. [20] at 1.
Defendants filed a Motion [23] for Summary Judgment on July 21, 2020, for
Plaintiff’s failure to exhaust administrative remedies, maintaining that Plaintiff
never pursued his grievances beyond the initial filing, taking no further steps in his
administrative appeal. Mem. [23] at 4. Plaintiff failed to respond to Defendants’
Motion, prompting the Court to enter an Order [25] to Show Cause on August 17,
2020, which was mailed to Plaintiff’s address of record. Plaintiff’s response was due
on September 10, 2020, Order [25] at 2, but he failed to respond to the Order. The
Court therefore entered a Second Order [27] to Show Cause on September 17, 2020,
directing Plaintiff to respond by October 9, 2020. Order [27] at 2. The Order [27]
was mailed to Plaintiff’s address of record and, to date, Plaintiff has not responded

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to either of the Court’s Orders [25], [27] or Defendants’ Motion [23] for Summary
Judgment.
On October 22, 2020, the Magistrate Judge entered a Report and
Recommendation [29], recommending that the Court dismiss this action without
prejudice for failure to prosecute under Federal Rule of Civil Procedure 41(b). R. &
R. [29] at 2. The Report and Recommendation concluded that there is “a clear record
of delay and contumacious conduct by Plaintiff,” having not responded to either of
the Court’s Orders [25], [27] to Show Cause, and noted that mail sent to Plaintiff
has been returned as undeliverable three times, No. [22], [26], [28]. R. & R. [29] at
3. The Report and Recommendation found that “[l]esser sanctions than dismissal
would not prompt diligent prosecution.” Id. Plaintiff has not filed an Objection to
the Report and Recommendation, and the time for doing so has passed.
II.
A.

DISCUSSION

Standard of Review
Because Plaintiff has not objected to the Magistrate Judge’s Report and

Recommendation [29], the Court need not conduct a de novo review of it. 28 U.S.C.
§ 636(b)(1). The Court need only review the Report and Recommendation [29] and
determine whether it is either clearly erroneous or contrary to law. United States v.
Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989).

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B.

Analysis
Having conducted the required review, the Court finds that the Report and

Recommendation [29] is neither clearly erroneous nor contrary to law and that it
should be adopted as the finding of the Court. Plaintiff’s claims should be dismissed
without prejudice for failure to prosecute.
The Court further finds that Plaintiff has failed to exhaust administrative
remedies under the Prison Litigation Reform Act (“PLRA”). 42 U.S.C. § 1997e(a). The
PLRA requires that, before a prisoner may file an action pursuant to 42 U.S.C. § 1983,
he must properly exhaust administrative remedies. Id.; Dillon v. Rogers, 596 F.3d
260, 265 (5th Cir. 2010). The prison grievance process is mandatory and a district
court lacks discretion to excuse a prisoner’s failure to exhaust the prison grievance
process before filing a complaint in federal court. Gonzales v. Seal, 702 F.3d 785, 788
(5th Cir. 2012).
The Harrison County Adult Detention Center’s (“HCADC”) Inmate Handbook
establishes a three-level written grievance process and requires inmates to use that
process before filing a complaint and initiating a lawsuit. Ex. [23-4] at 20-21. If an
inmate is not satisfied with the Level I response, he or she may proceed to Level II,
and then to Level III (the final step). Id. at 20. According to evidence provided by
Defendants in support of their Motion [23] for Summary Judgment, Plaintiff filed
multiple Level I grievances pursuant to the grievance process, but never pursued a
Level II grievance after receiving a response in accordance with the HCADC policies
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and procedures. Ex. [23-2] at 2; Ex. [23-3]. Plaintiff has acknowledged submitting the
initial grievances but offers no evidence that he pursued the grievances beyond Level
I. Mot. [20]. Based on the Court’s review of the record, Plaintiff plainly failed to
exhaust his administrative remedies, in addition to failing to prosecute.
III. CONCLUSION
The Court finds that the Magistrate Judge’s Report and Recommendation
[29] should be adopted and that this action should be dismissed without prejudice.
IT IS, THEREFORE, ORDERED AND ADJUDGED that, the Magistrate
Judge’s Report and Recommendation [29], entered in this case on October 22, 2020,
is ADOPTED as the finding of this Court.
IT IS, FURTHER, ORDERED AND ADJUDGED that, this action is
DISMISSED WITHOUT PREJUDICE.
SO ORDERED AND ADJUDGED, this the 19th day of November, 2020.

s/ Halil Suleyman Ozerden

HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE

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