Culbert v. Epps et al

Filing 34

ORDER adopting 25 Report and Recommendation. Signed by District Judge Carlton W. Reeves on 04/10/2015. Copy mailed to plaintiff at address listed on docket sheet. (AC)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
JIMMY CULBERT
V.

PLAINTIFF
CAUSE NO. 3:14-CV-616-CWR-LRA

CHRISTOPHER B. EPPS

DEFENDANT

ORDER ADOPTING REPORT AND RECOMMENDATION
This matter is before the Court pursuant to the Report and Recommendation of United
States Magistrate Judge Linda R. Anderson, Docket No. 25, and petitioner Jimmy Culbert’s
objections to that Report and Recommendation, Docket No. 32.
Having considered the objections, the Court is unpersuaded that the Report and
Recommendation erred. Binding Fifth Circuit law holds that Culbert did not timely institute
proceedings to challenge the revocation of his credits. See Kimbrell v. Cockrell, 311 F.3d 361,
364 (5th Cir. 2002).
It is worth reciting the relevant part of that precedent:
Under 28 U.S.C. § 2244(d)(1)(D), the one-year period commences when “the
factual predicate of the claim or claims presented could have been discovered
through the exercise of due diligence.” Kimbrell knew he was deprived of several
thousand days good-time credit, for possessing paraphernalia that could be used to
escape, when the hearing was held on December 2, 1998. His federal petition was
filed in November, 2000, nearly two years later. While the timely pendency of
prison grievance procedures would have tolled the one-year period, Kimbrell did
not institute them until more than a year after the disciplinary hearing.
Id. at 363-64.
Here, the five-year delay between Culbert’s revocation of credits and his initiation of
prison grievance procedures was simply too long. He was required to initiate the prison
grievance procedures within one year of the revocation of his credits.

Accordingly, this Court adopts the Report and Recommendation as its own findings and
conclusions, and this case is dismissed with prejudice.
SO ORDERED, this the 10th day of April, 2015.

s/ Carlton W. Reeves
UNITED STATES DISTRICT JUDGE

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