Russell v. Magee et al
ORDER ADOPTING 73 REPORT AND RECOMMENDATION granting 61 Motion for Summary Judgment filed by Dustin Gibson, Billy McGee, Jerome Wolfe, and Marcus Madden. Signed by District Judge Taylor B. McNeel on 2/18/2021. (BCC)
Case 2:19-cv-00039-TBM-MTP Document 78 Filed 02/18/21 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
ALLEN MONTEZ RUSSELL
CIVIL ACTION NO. 2:19-CV-39-TBM-MTP
BILLY MCGEE, MARCUS MADDEN,
JEROME WOLFE, DUSTIN GIBSON, ET AL.
ORDER ADOPTING REPORT AND RECOMMENDATION
AND GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
BEFORE THE COURT is the Report and Recommendation  entered by
United States Magistrate Judge Michael T. Parker on August 17, 2020. Judge Parker
recommends that the Motion for Summary Judgment  filed by Defendants Sheriff
Billy McGee, Marcus Madden, Jerome Wolfe, and Dustin Gibson (“Forrest County
Defendants”) be granted because all of Plaintiff’s claims against them, which are
pursuant to 42 U.S.C. § 1983, are procedurally improper.
In his Report and
Recommendation, Judge Parker identifies the following dispositive, procedural
defects: (1) Plaintiff failed to exhaust administrative remedies1 for his conditions-ofconfinement claims; (2) Plaintiff’s false imprisonment claim is barred by the Heck
“Under the Prison Litigation Reform Act (“PLRA”), prisoners must properly exhaust ‘such
administrative remedies as are available’ prior to filing a section 1983 action concerning prison
conditions.” Dillon v. Rogers, 596 F.3d 260, 265 (5th Cir. 2010) (internal citation omitted). “When the
defendant raises exhaustion as an affirmative defense, the judge should usually resolve disputes
concerning exhaustion prior to allowing the case to proceed to the merits.” Id. at 273.
Case 2:19-cv-00039-TBM-MTP Document 78 Filed 02/18/21 Page 2 of 3
doctrine 2; and (3) Plaintiff’s defamation allegations do not state a claim under Section
Plaintiff has not filed an objection to the Report and Recommendation, and the
time for filing an objection has expired. “When a party fails timely to file written
recommendation, that party is barred from attacking on appeal the unobjected-to
proposed findings and conclusions which the district court accepted, except for plain
error.” Casas v. Aduddell, 404 F. App'x 879, 881 (5th Cir. 2010); see also Thomas v.
Arn, 474 U.S. 140, 152 (1985) (“There is no indication that Congress, in enacting §
636(b)(1)(C), intended to require a district judge to review a magistrate’s report to
which no objections are filed.”). Having conducted the required review, the Court
finds that Judge Parker’s Report and Recommendation is neither clearly erroneous
nor contrary to law.
The Forrest County Defendants’ Motion for Summary Judgment  is
granted. In accordance, Plaintiff’s conditions-of-confinement claims are dismissed
without prejudice, and his false imprisonment and denial of right-to-speedy-trial
claims are dismissed with prejudice to their being asserted again until
“[W]hen a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a
judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence;
if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction
or sentence has already been invalidated. . . . Even a prisoner who has fully exhausted available
state remedies has no cause of action under § 1983 unless and until the conviction or sentence is
reversed, expunged, invalidated, or impugned by the grant of a writ of habeas corpus.” Heck v.
Humphrey, 512 U.S. 477, 487-89, 114 S. Ct. 2364, 2372-373, 129 L. Ed. 2d 383 (1994).
Case 2:19-cv-00039-TBM-MTP Document 78 Filed 02/18/21 Page 3 of 3
the Heck conditions are met. 3 The Forrest County Defendants are dismissed from
this action, and the action continues against the remaining defendants.
IT IS, THEREFORE, ORDERED AND ADJUDGED the Report and
Recommendation  entered by United States Magistrate Michael T. Parker is
ADOPTED as the opinion of the Court.
IT IS, FURTHER, ORDERED AND ADJUDGED that the Motion for
Summary Judgment  filed by the Forrest County Defendants is GRANTED.
DISMISSED WITHOUT PREJUDICE. Plaintiff’s false imprisonment and denial
of right-to-speedy-trial claims against said Defendants are DISMISSED WITH
PREJUDICE to their being asserted again until the Heck conditions are met.
SO ORDERED AND ADJUDGED, this the 18th day of February, 2021.
TAYLOR B. MCNEEL
UNITED STATES DISTRICT JUDGE
“A preferred order of dismissal in Heck cases decrees, ‘Plaintiffs claims are dismissed with prejudice
to their being asserted again until the Heck conditions are met.’” DeLeon v. City of Corpus Christi, 488
F.3d 649, 657 (5th Cir. 2007) (emphasis added) (quoting Johnson v. McElveen, 101 F.3d 423, 424 (5th
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