Richards v. Hogans et al
ORDER granting 28 Motion for Summary Judgment filed by Defendant Pennington. Signed by Magistrate Judge F. Keith Ball on 4/14/17 (YWJ)(Copy mailed to Plaintiff.)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
CIVIL ACTION NO. 3:15cv839-FKB-FKB
NORRIS HOGANS, ET AL.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on the Motion for Summary Judgment  filed by
Defendant Richard Pennington, in this action brought pursuant to 42 U.S.C. § 1983. Plaintiff,
James Richards, has not responded to the motion. The Court has held an Omnibus Hearing in
this matter, at which time the parties consented to proceed before the undersigned United States
Magistrate Judge, and the District Judge subsequently entered an Order of Reference. 28 U.S.C.
§ 636(c); Fed. R. Civ. P. 73. Richards is proceeding in this matter in forma pauperis and pro se.
Richards alleges that the defendants violated his constitutional rights during his
confinement at East Mississippi Correctional Facility (AEMCF@). In his Complaint , Richards
alleges a myriad of claims regarding the conditions of confinement at EMCF against a number of
Defendants. According to the Complaint, Defendant Pennington is the Director of the
Administrative Remedy Program (“ARP”) and Rules Violation Reports (“RVR”) appeals at
EMCF, id. at 4, and is employed by the State of Mississippi. See Answer . Richards has
sued Pennington in his individual and official capacities, but has not specifically alleged claims
against Pennington related to his conditions of confinement. Instead, Richards’s claims against
Pennington relate solely to the ARP and RVR appeals process. In his Complaint, Richards
asserts that Pennington wrongly rejected his appeal of an RVR as untimely, that Pennington and
other Defendants conducted unfair disciplinary procedures, and that Pennington participated in a
conspiracy with other Defendants to write false RVRs. Id. at 11, 14. Plaintiff’s claims against
other Defendants will be addressed by separate order.
Defendant Pennington asserts that he is entitled to dismissal on two bases. First,
Pennington argues that Richards has failed to exhaust his administrative remedies regarding his
claims against him prior to filing this action. Second, Pennington argues that Richards has failed
to state any actionable claim against him. Pennington has supported these arguments with a
sworn affidavit, which recounts that two of Richards’s grievances, EMCF-15-2245 and EMCF15-2246, were rejected as untimely, and that his office has no record of an ARP grievance
against Pennington regarding his rejection of Richards’s ARPs. [28-1].
Richards has failed to file a written response to this Motion, but the Court heard his
testimony regarding the Motion during the omnibus hearing. At the hearing, Plaintiff testified
that he had sued Pennington because he had rejected Richards’s RVRs. Additionally, Richards
acknowledged that Pennington was not personally involved in the alleged constitutional
violations related to his conditions of confinement claims.
Statutory and case law require a prisoner to exhaust administrative remedies, regardless
of the relief sought, before bringing a § 1983 action in federal court. The relevant portion of 42
U.S.C. § 1997e, as amended by the Prison Litigation Reform Act of 1995 (PLRA), states the
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, 121 S.Ct. 1819 (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, 121 S.Ct. at 1825. The United
States Supreme Court further explained 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, 122 S.Ct. 983 (2002); see also Jones v. Bock, 127 S.Ct. 910 (2007)(reaffirming that
exhaustion is mandatory; stating that it is an affirmative defense).
The United States Court of Appeals for the Fifth Circuit has reiterated the principles
found in these cases. In Gonzales v. Seal, 702 F.3d 785 (5th Cir. 2012), the Fifth Circuit
recognized that exhaustion of administrative remedies prior to suit is mandatory, and that district
courts have no discretion to stay ' 1983 prisoner cases when they are filed before prisoners have
exhausted administrative remedies. The Fifth Circuit concluded, as follows:
District courts have no discretion to excuse a prisoner=s failure to properly
exhaust the prison grievance process before filing their complaint. It is irrelevant
whether exhaustion is achieved during the federal proceeding. Pre-filing
exhaustion is mandatory, and the case must be dismissed if available
administrative remedies were not exhausted.
Id. at 788. Moreover, A[i]t is not enough to merely initiate the grievance process or to put prison
officials on notice of a complaint; the grievance process must be carried through to its
conclusion.@ Walker v. East Miss. Corr. Facility, 2013 WL 4833901 (S.D. Miss. Sept. 11,
2013)(citing Wright v. Hollingsworth, 260 F.3d 357, 358 (5th Cir. 2001)(finding that filing an
initial grievance, without more, did not equate to exhaustion)); see also Tompkins v. Holman,
2013 WL 1305580 (S.D. Miss. Mar. 26, 2013)(dismissing ' 1983 complaint for failure to
exhaust administrative remedies when prisoner filed a grievance, but did not complete the ARP
before filing his lawsuit).
In this case, Richards does not allege that he suffered from any ailment which prohibited
him from pursuing administrative remedies. See Ferrington v. Louisiana Dep=t of Corr., 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 nonexhaustion of administrative remedies because of physical injury and subsequent rejection of
grievance due to untimeliness). Exhaustion is mandatory, Airrespective of the forms of relief
sought and offered through administrative avenues.@ Booth v. Churner, 532 U.S. 731, 739
(2001). Put another way, A[t]he requirement of exhaustion applies regardless of Plaintiff=s
opinion on the efficacy of the institution=s administrative remedy program.@ Nealy v. Moore,
2013 WL 6230107, *3 (S.D. Miss. Nov. 30, 2013)(citing Alexander v. Tippah Co., 351 F.3d 626,
630 (5th Cir. 2003)).
Richards asserted in his Complaint that he had completed the ARP with regard to his
claims. However, in his Complaint and at the omnibus hearing, he admitted that his ARPs had
been rejected.  at 6. In a sworn affidavit [28-1], Pennington averred that Richards’s ARPs
challenging several RVRs were rejected because they were untimely filed. Moreover,
Pennington’s office had no record of any ARP filed by Richards challenging Pennington’s
rejection of the ARPs as untimely. Id. In fact, Richards admits as much, as he did not assert in
his Complaint or at the hearing that he had filed a separate ARP against Pennington based on
Pennington’s rejection of his ARPs.
Bare, unsubstantiated allegations of exhaustion simply are not enough to withstand a
properly supported motion for summary judgment. Id.; see also Ryan v. Phillips, 558 Fed. Appx.
477, 478 (5th Cir. 2014)(Prisoner=s Aconclusory and unsubstantiated assertion that he initiated the
applicable grievance procedure is insufficient to refute the lack of evidence that he filed any
informal or formal grievances.@). Richards has failed to come forward with any credible
evidence supporting his initial assertion that he exhausted his administrative remedies, and he
admits that his ARPs regarding his RVRs were rejected. Richards also admitted at the omnibus
hearing that his claims against Pennington were based solely on Pennington’s rejection of his
ARPs. Pennington points out, and Richards does not refute, that Richards failed to file a
separate ARP against Pennington for rejecting his ARPs. Accordingly, Pennington is entitled to
summary judgment on the basis of Richards’s failure to exhaust administrative remedies.
Furthermore, Richards’s claims against Pennington for rejecting his ARPs do not rise to
the level of a constitutional violation. At the omnibus hearing, Richards admitted that his claims
against Pennington were based solely on Pennington’s rejection of the ARPs, and that
Pennington was not personally involved in the alleged constitutional violations about which
Richards complains. Richards “does not have a federally protected liberty interest in having
these grievances resolved to his satisfaction.” Geiger v. Jowers, 404 F.3d 371, 374 (5th Cir.
2005). As Richards relies on a legally nonexistent interest, any alleged due process violation
arising from the alleged failure to resolve his grievances in his favor is indisputably meritless.
Finally, although Pennington did not move for summary judgment on Richards’s claims
brought against him in his official capacity, it is well-established that a suit against a state
official in his or her official capacity is a suit against the state, and the state generally cannot be
sued under Section 1983. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989).
Accordingly, Pennington is entitled to summary judgment with respect to Richards’s claims
against him in his official capacity.
Accordingly, for these reasons, the undersigned hereby grants the Motion for Summary
Judgment Based on Failure to Exhaust Administrative Remedies filed by Defendant Pennington.
SO ORDERED, this the 14th day of April, 2017.
/s/ F. Keith Ball
UNITED STATES MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?