Wilson v. Epps et al
ORDER granting 136 Motion to Dismiss; denying 142 Motion regarding exhaustion ; finding as moot 150 Motion for Settlement. This case should be dismissed as frivolous. Signed by Magistrate Judge F. Keith Ball on 7/31/13. (Copy mailed to Plaintiff at address listed on docket sheet.) (YWJ)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
CIVIL ACTION NO. 3:10-CV-518-FKB
CHRISTOPHER EPPS, ET AL.
MEMORANDUM OPINION AND ORDER
The Court held an omnibus hearing1 in this matter, at which time it conferred with
Plaintiff and counsel for Defendants in this suit founded upon 42 U.S.C. § 1983. At that hearing,
the parties consented to have a United States Magistrate Judge conduct any and all further
proceedings in the case and order the entry of final judgment, and the District Judge
subsequently entered an order of reference. 28 U.S.C. § 636(c); Fed. R. Civ. P. 73. Wilson is
proceeding in this matter in forma pauperis and pro se.
Pending before the Court are Defendants’ Motion to Dismiss for Failure to Exhaust
Available Administrative Remedies (Docket No. 136), a memorandum in support thereof, and
related exhibits. Plaintiff has filed what the Court construes as a cross-Motion Regarding
Exhaustion (Docket No. 142). For the reasons explained in this Memorandum Opinion and
Order, the Court grants the Motion to Dismiss in favor of Defendants and denies Plaintiff’s
cross-Motion Regarding Exhaustion. Plaintiff’s Motion for Settlement (Docket No. 150),
furthermore, is denied as moot. Accordingly, this matter is dismissed, and a separate judgment
will be entered in accordance with Federal Rule of Civil Procedure 58.
See Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
I. Plaintiff’s Claims
Plaintiff is a convicted inmate who, at all times relevant to the claims in this action, was
housed at Central Mississippi Correctional Facility (“CMCF”). From the filings, it appears that
Plaintiff first became incarcerated at CMCF on or about July 12, 2010, and he was subsequently
transferred to another facility on August 31, 2010 (Docket Nos. 136-3 at 34, 57).
The Court has issued process for Defendants employed by the Mississippi Department of
Corrections (“MDOC”), as follows: Christopher Epps, Commissioner of MDOC; James
Holman, Warden at CMCF; Margarett Bingham, Superintendent at CMCF; and Eddie Cates,
Classification and Moving Supervisor at CMCF. In his voluminous filings, including his
complaint, amended complaint, various supplements, and motions to amend, Plaintiff alleges that
Defendants denied his constitutional rights on a number of separate occasions related to
conditions of his confinement.
In his lengthy initial complaint, Plaintiff alleges a multitude of claims against officials at
CMCF. Most of his claims allege unconstitutional conditions of confinement which offend him,
such as forced haircuts, second hand smoke, placement on a top bunk, inadequate toilet tissue,
issuance of a plastic spoon with which to eat, stolen canteen items, unprofessional officers, no
call button, denial of his alleged right to watch the news or purchase a radio, bad meals, and poor
At the omnibus hearing held in this matter, Plaintiff admitted that he has not completed
the Administrative Remedy Process (“ARP”) as to any of these claims before filing this action in
federal court. He argues that he circumvented the ARP process to file this action because
officials never responded to his ARPs. He asserted that he sued Epps because Epps is in charge
of the MDOC, and he admitted that he did not sue him for any alleged personal acts by Epps.
Defendants have filed a Motion to Dismiss on the basis that Plaintiff admits that he failed
to exhaust administrative remedies. Because exhaustion is an affirmative defense, the burden is
on Defendants to demonstrate that Wilson failed to exhaust available administrative remedies.
Jones v. Bock, 549 U.S. 199, 216 (2007); Dillon v. Rogers, 596 F.3d 260 (5th Cir. 2010).
Moreover, because Defendants have submitted matters outside the pleadings with their Motion
to Dismiss, the motion should be characterized as a motion for summary judgment. See
Fed.R.Civ.P. 12(b); Young v. Biggers, 938 F.2d 565, 568 (5th Cir. 1991).
Rule 56 of the Federal Rules of Civil Procedure states, in relevant part, that summary
judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no genuine issue as
to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.
R. Civ. P. 56(c). An issue of fact is genuine if the "'evidence is sufficient to permit a reasonable
factfinder to return a verdict for the nonmoving party.'" Lemoine v. New Horizons Ranch and
Center, 174 F.3d 269, 633 (5th Cir. 1999)(quoting Colston v. Barnhart, 146 F.3d 282, 284 (5th
Cir.), cert. denied, 119 S.Ct. 618 (1998)). The Court does not, "however, in the absence of any
proof, assume the nonmoving [or opposing] party could or would prove the necessary facts."
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)(en banc)(emphasis omitted). The
non-moving party's burden to come forward with "specific facts showing that there is a genuine
issue for trial," Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), is not satisfied by
"conclusory allegations" or by "unsubstantiated assertions," or by only a "scintilla" of evidence.
Little, 37 F.3d at 1075.
In response to the Motion to Dismiss, Plaintiff argues that the ARP system of the MDOC
is inadequate, even though he admits that it replaced stolen canteen items, the occurrence of
which was the subject of one of his many ARPs. Docket No. 141. He argues that the ARP
system did not address multiple (at least ten) other ARPs pending against officials at CMCF
when officials held the ARPs in abeyance pending completion of his previously filed ARPs, thus
he should be excused from complying with the ARP process.2
The relevant portion of 42 U.S.C.§ 1997e, as amended by the Prison Litigation Reform
Act of 1995 (PLRA) states, as follows:
No action shall be brought with respect to prison conditions under section 1983 of
this title, or any other Federal law, by a prisoner confined in any jail, prison, or
other correctional facility until such administrative remedies as are available are
42 U.S.C. § 1997e(a)(Supp. 2000).
In Booth v. Churner, 532 U.S. 731 (2001), the Supreme Court held that 42 U.S.C. §
1997e, revised as a part of the PLRA, requires an inmate to exhaust administrative remedies
before bringing an action with respect to prison conditions, regardless of the relief offered
through administrative procedures. Booth, 532 U.S. at 741. The United States Supreme Court
has also held that the PLRA's exhaustion requirement is mandatory and applies to all inmate
suits about prison life, whether they involve general circumstances or particular episodes, and
whether they allege excessive force or some other wrong. See Porter v. Nussle, 534 U.S. 516
According to a memo to Plaintiff in Plaintiff’s ARP file, MDOC policy allows an
offender to have one active ARP and up to ten ARP complaints in backlog. Docket No. 136-4 at
(2002); see also Jones v. Bock, 549 U.S. 199 (2007)(reaffirming that exhaustion is mandatory;
stating that it is an affirmative defense).
The Court has reviewed the many voluminous filings presented by Plaintiff, as well as
over three hundred pages of Plaintiff’s ARPs presented by the State, see Docket No. 136, and
finds no evidence that Plaintiff exhausted his administrative remedies with regard to any of his
claims against officials at CMCF. More to the point, Plaintiff admits that he has not exhausted
his administrative remedies prior to bringing this suit, as is required by the PLRA. Plaintiff
ignores statutory and case law which requires a prisoner to exhaust administrative remedies,
regardless of the relief sought.
Furthermore, Plaintiff has failed to allege that he suffered from any ailment which
prohibited him from pursuing administrative remedies. See Ferrington v. Louisiana Department
of Corrections, 315 F.3d 529 (5th Cir. 2002)(Plaintiff-inmate’s blindness did not excuse him from
exhausting administrative remedies.); see also Days v. Johnson, 322 F.3d 863 (5th Cir.
2003)(excusing non-exhaustion of administrative remedies because of physical injury and
subsequent rejection of grievance due to untimeliness). Further, his request for monetary
damages is not exempt from exhaustion. Porter v. Nussle, 534 U.S. at 524 (“Even when the
prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion
is a prerequisite to suit.”). Exhaustion is now mandatory, “irrespective of the forms of relief
sought and offered through administrative avenues.” Booth v. Churner, 532 U.S. at 739.
The Fifth Circuit has taken a “strict” approach to the PLRA’s exhaustion requirement.
Dillon, 596 F.3d at 268. Under the Fifth Circuit’s “strict approach, [it] has found that mere
‘substantial compliance’ with administrative remedy procedures does not satisfy exhaustion;
instead, [the Court has] required prisoners to exhaust available remedies properly.” Id.
Nevertheless, Plaintiff argues that because, in his estimation, officials at CMCF failed to
process his ARPs in a timely fashion, he should be allowed to circumvent the ARP system and
file for relief in this Court. However, based on the record, Defendants have neither ignored
Plaintiff’s multiple ARPs, nor failed to handle them in a timely fashion.
According to a memo in his ARP file, MDOC policy allowed for an offender to pursue
one active ARP and maintain up to ten in “backlog.” Docket No. 136-4 at 20. As shown by the
memo, MDOC made an exception for Plaintiff and allowed him, at various times, to maintain a
greater number of active ARPs than was allowed by policy. Because the Fifth Circuit has
recognized that a facility’s procedure of “backlogging” ARPs is constitutional and does not
excuse a prisoner’s failure to exhaust, Plaintiff’s allegations regarding the ARP system do not
provide a basis for him to circumvent the ARP system. Wilson v. Boise, 262 F.3d 1356 (5th
Cir.)(unpublished), cert. denied, 122 S.Ct. 369 (U.S. 2001); see also White v. Epps, 2010 WL
2539659 (S.D. Miss. Mar. 3, 2010)(upholding MDOC’s ARP backlogging system).
Because the Plaintiff did not complete the administrative review process for his ARPs, he
has failed to exhaust his administrative remedies as to any of his claims. Accordingly,
Defendants’ Motion to Dismiss is hereby granted, and this action will be dismissed without
prejudice for Plaintiff’s failure to exhaust.
Thus, for the reasons stated above, the Court finds that Defendants are entitled to
summary judgment on the basis that Plaintiff failed to exhaust administrative remedies.
Accordingly, as set forth in this Opinion, Plaintiff’s claims against Defendants are dismissed
Furthermore, the Court finds that Plaintiff’s claims should be dismissed as “frivolous.”3
In accordance with Rule 58 of the Federal Rules of Civil Procedure, a separate judgment will be
SO ORDERED, this the 31st day of July, 2013.
/s/ F. Keith Ball
UNITED STATES MAGISTRATE JUDGE
The term "frivolous" in the context of 28 U.S.C. § 1915(e) does not mean that the
plaintiff has failed to state a claim, "but it is to be equated with the raising of a wholly
insubstantial federal claim." Wilson v. Barrientos, 926 F.2d 480, 482 (5th Cir. 1991). In other
words, the action may be dismissed if it has no arguable basis for relief either in law or fact.
Eason v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994). Thus, a case may be found to be legally
"frivolous" where it seeks to assert a "right" or address a "wrong" clearly not recognized by
federal law. See, e.g., Neitzke v. Williams, 490 U.S. 319 (1989).
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