Richards v. Hogans et al
ORDER granting 30 Motion for Partial Summary Judgment. The action is dismissed with prejudice as to Defendants Rice, Hughes-Moore, Rodriguez, Coleman, and Wren. 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 Partial Summary Judgment based on
Plaintiff’s Failure to Exhaust Administrative Remedies filed by Defendants Norris Hogans, Ray
Rice, Simone Jones, Alma Wren, LeShuntae Hughes-Moore, Katrina Coleman, Jeremy Clay, and
Terry Hibbler , and joined by Defendant Jared Miller , 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 Defendants,
who were employees of EMCF at the time of the events on which the action is based.
Defendants argue that they are entitled to partial summary judgment based on Richards’s
failure to exhaust administrative remedies. In short, Defendants acknowledge that Richards has
exhausted his administrative remedies related to his Eighth Amendment claims based on the
living conditions he experienced while housed in Unit 6-D. See [30-1] at 2, 14. However,
Defendants argue that Richards has failed to exhaust his administrative remedies with regard to
certain Rules Violation Reports (“RVRs”), as follows:
1. RVR # 01538913, received on August 6, 2015, for throwing an unknown liquid
substance on Officer Clay with a punishment of loss of all privileges for 30 days.
[30-3] at 1;
2. RVR # 01639634, received on August 6, 2015, for throwing an unknown liquid
substance on Officer Hibbler with a punishment of loss of all privileges for 30
days. [30-3] at 5;
3. RVR # 01639635, received on August 6, 2015, for threatening staff with a
punishment of loss of all privileges for 30 days. [30-3] at 11; and
4. RVR # 01654753, received on August 7, 2015, for throwing an unknown liquid
substance on Officer Clay with a punishment of loss of all privileges for 30 days.
[30-3] at 15.
Defendants argue that Richards failed to exhaust his administrative remedies with regard
to these RVRs when he attempted to appeal the convictions in one administrative grievance,
EMCF-15-2246, but the grievance was rejected as untimely. [30-1] at 2, 27.
Richards was also found guilty on three additional RVRs, as follows:
1. RVR # 01654120, received on August 19, 2015, for refusing to obey an order of
staff by refusing to be housed in general population, with a punishment of a
custody review. [30-3] at 20;
2. RVR # 01654441, received on September 24, 2015, for failing to obey an order
by staff by refusing to move out of segregation back into general population with
a punishment of loss of all privileges for 30 days. [30-3] at 26; and
3. RVR # 01653660, received on October 15, 2015, for failing to obey an order of
staff by refusing to move out of segregation back into general population with a
punishment of possible reclassification. [30-3] at 30.
Plaintiff alleges that his administrative appeal of RVR # 01654120, found in EMCF-15-2245,
was rejected as untimely. [30-1] at 17-18. There is no record of his appeal of RVR # 01654441
and RVR # 01653660. Id. at 3.
Richards has failed to file a written response to this Motion, but the Court heard his
testimony on the RVR appeals process during the omnibus hearing. At the hearing, Plaintiff
asserted that some disciplinary hearings were held, while other hearings were not held as the
records indicated. He maintained that the disciplinary proceedings were biased against him by
asserting that officials had found him guilty before the hearings began. He also testified that he
was given falsified and “bogus” RVRs. In his Complaint, he alleged that it took over two
months to obtain copies from his caseworker of all four of the RVRs he received in August 2015,
therefore his appeal was delayed.  at 10.
Statutory law 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 following:
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 some of his
ARPs had been rejected.  at 6. In a sworn affidavit [28-1], Defendant Pennington averred
that Richards’s ARPs challenging several RVRs were rejected because they were untimely filed.
Mary Dempsey, the ARP Coordinator at EMCF and custodian of the ARP records, presented an
affidavit stating that Richards’s appeals of RVR # 01654120, # 01538913, # 01639634,
#01639635, and # 01654753, were rejected as untimely because the grievances related to these
RVRs, EMCF-15-2245 and EMCF-15-2246, were submitted more than fifteen days from the
date Richards received the RVRs. [30-1] at 2.
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 claim that he exhausted his administrative remedies, and he
admits that his ARPs were rejected. However, Richards alleges in his complaint and he testified
at the omnibus hearing that his caseworker delayed producing copies of his RVRs until October
15, 2015, over two months after he received the RVRs forming the basis of grievances EMCF15-2245 and EMCF-15-2246. According to the Appeal Procedure, the RVR forming the basis of
a grievance must be attached to any appeal. [30-3] at 3.
Despite a seemingly bright line rule regarding exhaustion, the Fifth Circuit has carved out
exceptions. The Fifth Circuit has recognized as an excuse from the exhaustion requirement
Acircumstances where administrative remedies are inadequate because prison officials have
ignored or interfered with a prisoner's pursuit of an administrative remedy.@ Johnson v. Ford,
261 Fed. App=x 752, 755 (5th Cir. Jan. 14, 2008) (citing Holloway v. Gunnell, 685 F.2d 150, 154
(5th Cir. 1982)). A prisoner's failure to exhaust Amay be excused where dismissal would be
inefficient or would not further the interests of justice or the purposes of the exhaustion
requirement.@ Id. (citing Underwood v. Wilson, 151 F.3d 292, 296 (5th Cir. 1998), overruled by
implication on other grounds, Jones, 127 S.Ct. at 920-921); see also, McDonald v. Cain, 426
Fed. App=x 332 (5th Cir. 2011)(vacating dismissal of complaint when prisoner provided
documents to support allegations of inadequacy of prison review process.). Factual disputes
related to exhaustion may be resolved by a judge without resort to a jury. Dillon, 596 F.3d at
According to Richards’s Complaint and his sworn omnibus hearing testimony, he asserts
that his caseworker essentially “interfered” with his timely filing of administrative grievances by
failing to provide copies of his RVRs until after the deadline to appeal had expired.
Accordingly, in an abundance of caution, the Court declines to grant summary judgment on the
basis of Richards’s failure to exhaust.
Even so, while Richards’s claims of falsified RVRs and hearings are disturbing to the
Court, his claims against Defendants regarding his RVRs do not rise to the level of a
constitutional violation. At most, Richards suffered a loss of all privileges and possible
reclassification.1 Pursuant to Sandin v. Conner, liberty interests protected by the Due Process
Clause Awill be generally limited to freedom from restraint which . . . imposes atypical and
significant hardship on the inmate in relation to the ordinary incidents of prison life.@ Sandin,
515 U.S. 472, 483-484 (1995). A loss of privileges for thirty days does not constitute a
constitutional violation. See Smith v. Anderson, 2013 WL 1182995 (S.D. Miss. Feb. 13, 2013),
adopted, Smith v. Anderson, 2013 WL 1182984 (S.D. Miss. Mar. 21, 2013)(finding that denial of
privileges for three months and placement in administrative segregation for twenty days did not
constitute a restraint which imposed an atypical and significant hardship under Sandin).
does not complain regarding the length of time for which he lost his privileges, nor
does he allege that he was eventually reclassified. Instead, his Complaint focuses on the
condition of his cells.
Neither does reclassification rise to the level of a constitutional violation. AUnder Wilson v.
Budney, 976 F.2d 957 (5th Cir. 1992), a prison inmate does not have a protectable liberty or
property interest in his custodial classification and an inmate=s disagreement with a classification
is insufficient to establish a constitutional violation.@ Neals v. Norwood, 59 F.3d 530, 533 (5th
Cir. 1995). Because the plaintiff relies on a "legally nonexistent interest, any alleged due
process or other constitutional violation arising from his classification is indisputably meritless."
Harper v. Showers, 174 F.3d 716, 719 (5th Cir. 1999) (a Mississippi case).
Accordingly, Defendants’ Motion for Partial Summary Judgment is hereby granted, and
Plaintiff’s claims regarding denial of due process related to RVR # 01538913, RVR # 01639634,
RVR # 01639635, RVR # 01654753, RVR # 01654120, RVR # 01654441, and RVR # 01653660
are hereby dismissed. Furthermore, because Richards’s claims against Defendants Rice,
Hughes-Moore, Rodriguez, Coleman, and Wren are based solely on his allegations of denial of
due process related to the aforementioned RVRs, this action is dismissed with prejudice as to
Defendants Rice, Hughes Moore, Rodriguez,2 Coleman, and Wren.
In addition, the Court observes that Defendant Roberts remains unserved. According to
defense counsel for Management & Training Corporation (“MTC”), Roberts is no longer
employed by MTC. . Defense counsel provided Roberts’s last known address for service.
Id.. However, a Deputy United States Marshal attempted service on Roberts at his last known
address, but was informed that he no longer resided at the address. See . Accordingly,
Plaintiff is given thirty (30) days from the date of this Order to provide a current address for
Roberts. See Fed. R. Civ. P. 4(m)(requiring service within 90 days after the complaint is filed).
has failed to serve Defendant Rodriguez.
Furthermore, Richards’s claims against all Defendants in their official capacities are
hereby dismissed. In short, claims against § 1983 defendants in their official capacities are the
equivalent of suit against a governmental entity as a defendant. Brandon v. Holt, 469 U.S. 464,
471-472 (1985). Defendants’ employer, MTC, is not a governmental entity and has not been
named as a defendant, therefore Richards’s claims against Defendants in their official capacities
cannot stand. Additionally, Richards has failed to allege the existence of an official custom or
policy of MTC that was the “moving force” behind his alleged constitutional violations. See
Pacheco v. Corrections Corp. of Am. 2016 WL 6811623, *1-2 (S.D. Miss. Oct. 13, 2016),
adopted, 2016 WL 6808159 (S.D. Miss. Nov. 17, 2016).
Accordingly, for the reasons discussed in this Memorandum Opinion and Order, the
Motion  for Partial Summary Judgment based on Plaintiff’s Failure to Exhaust
Administrative Remedies and the Joinder  are hereby granted. Therefore, Plaintiff’s claims
regarding denial of due process related to RVR # 01538913, RVR # 01639634, RVR #
01639635, RVR # 01654753, RVR # 01654120, RVR # 01654441, and RVR # 01653660 are
hereby dismissed. Furthermore, because Richards’s claims against Defendants Rice, HughesMoore, Rodriguez, Coleman, and Wren are based solely on his allegations of denial of due
process related to the aforementioned RVRs, this action is dismissed with prejudice as to
Defendants Rice, Hughes-Moore, Rodriguez, Coleman, and Wren.
Plaintiff is given thirty (30) days from the date of this Memorandum Opinion and Order
to provide an address for service of process as to Joshua Roberts. Should Plaintiff fail to meet
this deadline, Plaintiff’s claims against Roberts will be dismissed.
Plaintiff’s official capacity claims against all Defendants are hereby dismissed.
By separate Order, the Court will address discovery and set a motion filing deadline as to
Plaintiff’s remaining claims against Defendants Norris Hogans, Simone Jones, Jeremy Clay,
Terry Hibbler, and Jared Miller.
SO ORDERED, this the 14th day of April, 2017.
/s/ F. Keith Ball
UNITED STATES MAGISTRATE JUDGE
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