Marcoon v. Rankin County Circuit Court and Jail et al
ORDER denying 39 Motion for Summary Judgment; adopting 45 Report and Recommendations for the reasons set out in the Order. Judge Ball is directed to set the matter for an Omnibus Hearing. Because this denial is without prejudice, Defendants are not precluded from moving for summary judgment in the future, if appropriate. Signed by District Judge Daniel P. Jordan III on January 3, 2017.(SP)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
WALTER DON MARCOON
CIVIL ACTION NO. 3:15CV662-DPJ-FKB
SHERIFF BRYAN BAILEY, ET AL.
This § 1983 action is before the Court on the Report and Recommendations  of
Magistrate Judge F. Keith Ball. Judge Ball recommended denying Defendants’ Motion for
Summary Judgment  based upon failure to exhaust administrative remedies.
Plaintiff Walter Don Marcoon alleged in his September 11, 2015 Complaint that
Defendants failed to provide access to legal materials, including a notary public, and that
conditions of confinement at RCJ are dangerous and negligent ripe with acts of
inmate on inmate violence, staff on inmate violence, improper medical services
restricted by cost to jail, improper treatment of inmates by keeping cells
excessively cold, not allowed to use blankets during daylight hours, food service
issues of vendors not wearing hairnets and gloves continually, and tampering with
Compl.  at 5. Defendants moved for summary judgment, pointing out that Marcoon “did not
submit the first grievance to Rankin County until two (2) months after he filed his Complaint.”
Defs.’ Mem.  at 6 (emphasis in original). Judge Ball recommended denying the motion,
concluding that jail official Lt. James Rutland’s affidavit did not unambiguously state that
Plaintiff’s November 10, 2015 grievance concerning denial of access to medical treatment “was
the only one filed by Marcoon while he was at the detention center.” R&R  at 2.
In response, Defendants filed an Objection , accompanied by a supplemental
affidavit. In it, Lt. Rutland clarifies that the November 15, 2015 grievance “was the only
grievance submitted by Marcoon to the Rankin County Jail.” Rutland Supp. Aff. [47-1] at 1. In
addition, Defendants addressed Marcoon’s claim that he attempted to obtain a grievance form
from Lt. Rutland, but that Rutland did not respond. Marcoon Obj. ; see also Marcoon
Answer to Obj. .1 Specifically, Marcoon asserts:
2. I hearby solemnly swear that during the months of July and August of 2015 I
tried on 3 sep[a]rate occasions to obtain a grievance form from Lt. James Rutland
by written request as stipulated by Policy Number 12-3 of Policies and
Procedures of the Rankin County Adult Detention Center to no avail. Lt. Rutland
repeatedly ignored my written request and several verbal request [sic] I sent by
detention officers on his staff.
4. I reported these grievances to Sheriff Bailey in writing. There are no middle
steps to a grievance if you are not allowed to file one!
Marcoon Aff. [51-1] (emphasis in original).
Defendants submit that “the failure of prison officials to respond to a grievance does not
constitute a valid excuse for failure to exhaust administrative remedies.” Snellgrove v. Lappin,
No. 5:10cv54-DCB-MTP, 2011 WL 1099906, at *6 (S.D. Miss. Jan. 4, 2011) (internal
punctuation and citations omitted.). As explained by the Fifth Circuit Court of Appeals,
Section 1997e’s exhaustion requirement is satisfied only if the prisoner “pursue[s]
the grievance remedy to conclusion.” Wright v. Hollingsworth, 260 F.3d 357, 358
(5th Cir. 2001). This requirement does not fall by the wayside in the event that
the prison fails to respond to the prisoner’s grievance at some preliminary step in
the grievance process. Instead, the prison’s failure to timely respond simply
entitles the prisoner to move on to the next step in the process. Thus, it is only if
the prison fails to respond at the last step of the grievance process that the
prisoner becomes entitled to sue, because then there is no next step (save filing a
lawsuit) to which the prisoner can advance.
Marcoon initially filed an Objection  to a now-withdrawn Report and
Recommendations  granting Defendants’ motion for summary judgment. After the new
Report and Recommendations  was entered, Defendants objected , and Marcoon filed an
Answer to Defendants’ Objection . The Court reviewed all filings.
Wilson v. Epps, 776 F.3d 296, 301 (5th Cir. 2015) (emphasis omitted).
The Rankin County Adult Detention Center requires inmates to first request an Inmate
Grievance Form by writing a letter requesting such from the Jail Administrator. Procedures  at 3. The inmate completes the form and turns it over to the Jail Administrator, who reviews
the grievance, formulates a response, and provides the inmate a Grievance Hearing Report Form.
Id. at 3–4. If dissatisfied, the inmate can appeal the decision to an Appeal Hearing Officer by
submitting an appeal in writing to the Jail Administrator. Id. at 4. And if the inmate disagrees
with the decision of the Appeal Hearing Officer, he may effect a final appeal directly to the
Sheriff. Id. at 4–5.
According to Defendants, “[t]here is no indication that Plaintiff attempted to complete the
middle steps of the grievance procedure.” Defs.’ Obj.  at 4. But the “middle steps” involve
appealing the decision of the Jail Administrator by submitting the appeal in writing to the Jail
Administrator. Procedures [39-3] at 4. Here, there was no decision to appeal, and Marcoon
alleges that his written submissions to the Jail Administrator were a dead end. He further
contends that he unsuccessfully attempted to take his grievance to the last step by writing Sheriff
Bailey. See Wilson, 776 F.3d at 301.
Construing the evidence in the light most favorable to Plaintiff, as the Court must do at
this stage, the Court finds that summary judgment is inappropriate. The Report and
Recommendations  is adopted; Defendants’ motion  is denied without prejudice.
Judge Ball is directed to set the matter for an Omnibus Hearing. See Nov. 28, 2016 Text
Order (continuing Omnibus Hearing pending a ruling on the motion for summary judgment).
Because this denial is without prejudice, Defendants are not precluded from moving for
summary judgment in the future, if appropriate.
SO ORDERED AND ADJUDGED this the 3rd day of January, 2017.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE
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