Horton v. Mosley

Filing 29

ORDER ADOPTING 27 REPORT AND RECOMMENDATIONS, granting 21 Motion to Dismiss and 20 Motion for Summary Judgment. A separate judgment will be entered. Signed by District Judge Tom S. Lee on 6/25/15 (LWE) (copy mailed to plaintiff at #57578-112, YAZOO CITY LOW - C-2, FEDERAL CORRECTIONAL INSTITUTION, Inmate Mail/Parcels, P.O. BOX 5000, YAZOO CITY, MS 39194)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION

SAMUEL LEE HORTON, III
VS.

PLAINTIFF
CIVIL ACTION NO. 3:14CV713TSL-RHW

WARDEN BONITA MOSLEY AND
CASE MANAGER T. HARDY

DEFENDANTS

ORDER
This cause is before the court on the report and
recommendation of Magistrate Judge Robert H. Walker entered on May
28, 2015, recommending that defendants’ motion for summary
judgment be granted.

Alternatively, it is recommended that

defendants’ motion to dismiss for failure to state a claim be
granted.

Plaintiff Samuel Lee Horton, III failed to file an

objection and the time for doing so has since expired.

Having

reviewed the report and recommendation, the court concludes that
the motions are well taken and hereby adopts, as its own opinion,
the magistrate judge’s report and recommendation.
Based on the foregoing, it is ordered that the report
and recommendation of United States Magistrate Judge Robert H.
Walker entered on May 15, 2015, be, and the same is hereby,
adopted as the finding of this court, such that defendants’ motion
for summary judgment on the issue of exhaustion is granted.1
1

Horton has not demonstrated that he should be excused from
his failure to exhaust. Although in his opposition to defendants’
motion for summary judgment, he did maintain that prison officials

Alternatively, the court grants defendants’ motion to dismiss for
failure to state a claim upon which relief may be granted.2
A separate judgment will be entered in accordance with Rule
58 of the Federal Rules of Civil Procedure.
SO ORDERED this 25th day of June, 2015.

/s/Tom S. Lee
UNITED STATES DISTRICT JUDGE

advised him to file multiple grievances over the same issue, he
did not further contend that he was unaware of the deadlines and
other pertinent requirements of the BOP’s Administrative Remedy
Program. On this point, a declaration offered in support of
defendants’ motion recites that Horton had been made aware of and
had access to Program Statement § 1330.17 which sets forth the
rules and procedures regarding the administrative procedure
process. Cf. Huff v. Neal, 555 Fed. Appx. 289, 295-96 (5th Cir.
Jan. 27, 2014) (rejecting plaintiff’s argument that exhaustion
should be excused because prison official allegedly advised him to
delay in filing his administrative grievance where plaintiff had
knowledge of applicable procedures and deadlines).
2

To the extent that Horton’s response to defendants’
motion can be viewed as a motion to amend his complaint to add a
claim of retaliation, it is denied as futile. The court is not
persuaded that he has “allege[d] a chronology of events from which
retaliation may plausibly be inferred.” Woods v. Smith, 60 F.3d
1161, 1165 (5th Cir. 1995) (internal citations and quotations
omitted).
2