Holloway v. Fisher et al
ORDER granting in part and denying in part 44 Motion for Summary Judgment; granting in part and denying in part 47 Motion/Response in Support of Plaintiff's Exhaustion of Remedies. A separate order regarding discovery will be entered. Signed by Magistrate Judge F. Keith Ball on 8/14/17. (YWJ)(Copy mailed to Plaintiff.)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JASON R. HOLLOWAY
CIVIL ACTION NO. 3:16-cv-26-FKB-FKB
MARSHALL FISHER, ET AL.
MEMORANDUM OPINION AND ORDER
Before the Court is the Motion for Summary Judgment  for Failure to Exhaust
Administrative Remedies filed by Defendants Marshall Fisher, Jerry Williams, Gloria Perry, Ron
King, Brian Ladner, James Fillyaw, Supt. Earnest Lee, Warden Sonja Sanciel, Deputy Warden
Simon Lee, Lt. Jamaal Murriel, Lt. Kevin Nunn, Lt. Lorrance Cross, and Richard Pennington in
this action brought pursuant to 42 U.S.C. § 1983. Defendants Dr. Gail Williams and Centurion
of Mississippi, LLC, filed a Joinder  to the Motion for Summary Judgment.1 Plaintiff, Jason
R. Holloway, has responded to the motion. .
The Court 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. Holloway
is proceeding in this matter in forma pauperis and pro se.
For the reasons explained in this opinion, the Court finds that the motion for summary
judgment  should be granted in part and denied in part, and Holloway’s Motion response
 should be granted in part and denied in part.
After filing its Joinder, Centurion of Mississippi, LLC, was subsequently dismissed by an Order  entered on
January 19, 2017.
Holloway alleges that his constitutional rights were violated while he was housed in the
Mississippi Department of Corrections at Central Mississippi Correctional Facility (“CMCF”) in
October 2015, and thereafter when he was transferred to the Mississippi State Penitentiary,
Parchman, Mississippi (“Parchman”), where he was housed in October and November 2015.
Defendants are Dr. Gail Williams, who allegedly failed to provide adequate mental health care
treatment at Unit 42, as well as current and former employees of MDOC: Marshall Fisher, the
former Commissioner of MDOC; Jerry Williams; Gloria Perry; Ron King; Brian Ladner; James
Fillyaw; Supt. Earnest Lee; Warden Sonja Sanciel; Deputy Warden Simon Lee; Lt. Jamaal
Murriel; Lt. Kevin Nunn; and Richard Pennington (“MDOC Defendants).2 In this action,
Plaintiff’s claims may be summarized as follows:
Plaintiff alleges that the MDOC Defendants failed to protect him from harm when
he was raped by another inmate on October 1, 2015, at CMCF.  at 12-13.
Plaintiff alleges that after he underwent treatment at a private hospital, he was
transported to the hospital at Unit 42 of the Mississippi State Penitentiary at
Parchman, Mississippi, on October 14, 2015. He was housed at Unit 42 for
approximately fifteen to seventeen days, after which time he was transferred to the
East Mississippi Correctional Facility (“EMCF”), where he is currently housed.
Plaintiff makes claims regarding his conditions of confinement for the period in
which he was housed at Unit 42. Id. at 13-14, 15-17. More specifically, he claims
that the facilities were filthy, were infested by vermin, had no hot water, had
inadequate ventilation, and had inadequate lighting and plumbing. Id. at 15-17.
Plaintiff dismissed his claims against Lt. Lorrance Cross at the omnibus hearing, and the Court subsequently
Plaintiff alleges that Defendant Dr. Williams denied him adequate medical and
mental health treatment while he was housed at Unit 42. Id. at 17-20.3
In their filings, the MDOC Defendants acknowledge that Holloway did file and exhaust
his administrative remedies on his claim that the MDOC Defendants failed to protect him from
harm on October 1, 2015, when he was allegedly raped by another inmate at CMCF. See  at
2 n.1. The MDOC Defendants argue, however, that Holloway failed to exhaust his
administrative remedies as to his conditions of confinement claim and his denial of adequate
mental health and medical care treatment claims.
II. RELEVANT STANDARDS
Rule 56 of the Federal Rules of Civil Procedure states, in relevant part, that A[t]he court
shall grant summary judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.@ Fed. R. Civ. P. 56(a). An
issue of fact is genuine if the "'evidence is sufficient to permit a reasonable factfinder to return a
verdict for the nonmoving party.'" Lemoine v. New Horizons Ranch and Center, 174 F.3d 629,
633 (5th Cir. 1999)(quoting Colston v. Barnhart, 146 F.3d 282, 284 (5th Cir.), cert. denied, 119
S.Ct. 618 (1998)). Issues of fact are material if Aresolution of the issues might affect the outcome
of the suit under governing law." Lemoine, 174 F.3d at 633. The Court does not, "however, in
the absence of any proof, assume the nonmoving [or opposing] party could or would prove the
necessary facts." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)(en
banc)(emphasis omitted). Moreover, the non-moving party's burden to come forward with
entered a Text Only Order on November 30, 2016, dismissing Cross as a Defendant.
Additionally, Holloway has previously dismissed his claims against two other Centurion employees, Gregory
Johnson and Dr. William Barr. At the omnibus hearing, Holloway dismissed his claim of denial of access to the
courts. See Text Only Order entered November 30, 2016.
"specific facts showing that there is a genuine issue for trial," Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986), is not satisfied by "conclusory allegations" or by "unsubstantiated assertions,"
or by only a "scintilla" of evidence. Little, 37 F.3d at 1075.
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).
The Court is mindful, moreover, that because “exhaustion is an affirmative defense, the
burden is on [the movant] to demonstrate that [a prisoner plaintiff] failed to exhaust available
administrative remedies.” Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir. 2010). Nevertheless,
factual disputes related to exhaustion may be resolved by a judge without resort to a jury. Id. at
In limited circumstances, courts have determined that a prisoner’s ailment which
prohibited him from pursuing administrative remedies excuses exhaustion. See Days v. Johnson,
322 F.3d 863 (5th Cir. 2003)(excusing non-exhaustion of administrative remedies because of
physical injury and subsequent rejection of grievance due to untimeliness). However, in other
cases, courts did not excuse exhaustion when prisoners alleged that physical ailments prevented
them from exhausting their 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.). 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
With these standards in mind, the Court turns to evaluate whether Plaintiff’s failure to
exhaust should be excused.
Defendants have presented authenticated records related to two different grievances that
Holloway filed with the MDOC’s Administrative Remedy Program (“ARP”), MSP-16-700 and
MSP-16-355. MSP-16-700 concerns Holloway’s living conditions at Parchman’s Unit 42 during
October and November 2015. [44-1]. MSP-16-355 contains Holloway’s allegations of denial of
adequate mental health care and medical care while housed at Unit 42 during the same time
The request for administrative remedy MSP-16-700 was originally signed and dated by
Holloway on November 8, 2015, and it was received by the ARP at Parchman on November 20,
2015. [44-1] at 3, 5. MSP-16-700 contained Holloway’s complaints regarding the living
conditions in Unit 42 and asserted allegations of poor lighting and plumbing, vermin
infestations, unsanitary conditions, poor ventilation, cold conditions, and lack of clean bedding.
Id. at 3-4. MSP-16-700 was accepted into the ARP on November 30, 2015. Id. at 2. However,
on December 4, 2015, Defendant Richard Pennington, the Director of the ARP, notified
Holloway that MSP-16-700 was being “set aside for handling in due course” because the
program had previously accepted ARPs from Holloway that were under review. Id. at 2, 6.4 On
May 19, 2016, the ARP issued a First Step Response in MSP-16-700, from which no appeal
exists in Holloway’s inmate file. Id. at 1, 8, 9. Thus, Defendants assert that Holloway did not
proceed to the second step as to MSP-16-700, and, therefore, he did not exhaust his
In the meantime, it appears that Holloway attempted to file another ARP based on the
same conditions of confinement claims as set forth in MSP-16-700. In his Response ,
Holloway attaches a copy of MSP-16-354, originally signed by him on November 19, 2015, and
that was rejected as untimely on February 17, 2016. [47-5] at 1.
Holloway argues that his requests for administrative remedies should not have been
rejected as untimely because he was in the hospital and on suicide watch for almost a month after
the October 1, 2015, event.  at 2. Holloway’s hospitalization and suicide watch in October
and early November 20155 do not excuse his failure to appeal MSP-16-700. The ARP issued a
First Step Response for MSP-16-700 on May 19, 2016, long after he had been released from the
hospital, removed from suicide watch, and moved to EMCF. Accordingly, Plaintiff has failed to
The Fifth Circuit has recognized that a facility’s procedure of “backlogging” ARPs is constitutional and does not
excuse a prisoner’s failure to exhaust. Wilson v. Boise, 262 F.3d 1356 (5th Cir.)(unpublished), cert. denied, 122
S.Ct. 369 (U.S. 2001); see also White v. Epps, 2010 WL 2539659 (S.D. Miss. Mar. 3, 2010)(upholding MDOC’s
ARP backlogging system).
According to his complaint, Holloway was hospitalized at Merit Health’s Central Mississippi Medical Center in
Jackson, Mississippi, from on or about October 1 to 14,  at 13, and he was admitted to the medical unit at
exhaust his administrative remedies as to his conditions of confinement claims at Parchman’s
Unit 42, and those claims are hereby dismissed.
Turning to MSP-16-355, Defendants have presented the authenticated records related to
this request for administrative remedy, which was originally dated November 18, 2015, and
recounts Holloway’s allegations of denial of adequate mental health care and medical care while
housed at Unit 42 in October 2015. [44-2]. Plaintiff has also submitted a copy of the same
request for administrative remedy in response to the motion for summary judgment. [47-6]. On
February 17, 2016, the ARP director rejected MSP-16-355 as untimely when he determined that
the incident about which Holloway complained had occurred on October 15, 2015, and more
than thirty (30) days had passed between the event and the receipt of the initial request. [44-2] at
2; [47-6] at 1.6
In his request for administrative remedy, Holloway recounts events occurring between
October 14 and October 27, 2015. He asserts that a nurse discontinued his mental health care
medications when he arrived at Parchman on October 14, 2015. [44-2] at 3; [47-6] at 2. He also
asserts that on October 15, 2015, Defendant Dr. Gail Williams initially examined him, refused to
restart the medications, and ridiculed him. Id. Holloway complains that on October 19, 2015, he
talked to Nurse Johnson after being upset by nightmares. Id. at 4. Immediately thereafter, an
officer returned him to suicide watch. Id. On October 23, 2015, Holloway relates that he saw
Parchman from October 14 to November 10, 2015. Id. at 13-14.
Even so, the director’s description of the receipt date of the initial request for administrative remedy is confusing,
at best, due to a handwritten date and a line marked through the original type face date, thereby indicating receipt on
either January 22, 2016, February 12, 2016, or December 22, 2016. Id. Furthermore, the date stamp of receipt on
Holloway’s request for administrative remedy indicates the month of December 2015, without an exact date. [44-2]
at 3; [47-6] at 2.
Dr. Williams, to whom he complained that he needed mental health medication. Id. Holloway
asserts that Dr. Williams offered to start him on Paxil and Tegretol, but after Holloway informed
the doctor that he could not mix Tegratol with his seizure medication, the doctor walked out of
his cell. Id. Holloway complains that on or about October 27, 2015, he saw Dr. Williams again
and informed him that he was not taking the medications prescribed to him by Dr. Williams, so
Dr. Williams stopped all of the medications and “didn’t even try to put me on anything else.” Id.
at 4-5. Holloway also relates thereafter that Dr. Williams took everyone else, but him, off
suicide watch, would not explain his reasoning behind his actions, and refused to provide
Holloway with counseling or treatment. Id. at 5.
Holloway’s original request for administrative remedy is dated November 18, 2015,
which is the date the Court presumes that Holloway submitted his request for administrative
remedy.7 Under the ARP program established by the MDOC, inmates are required to submit the
requests for administrative remedies within thirty days of an incident. Howard v. Epps, 2013
WL 2367880, at *2 (S.D. Miss. May 29, 2013). Because many of the incidents about which
Holloway complains occurred within thirty days of his November 18, 2015, request for
administrative remedy, the ARP director erred when he rejected MSP-16-355 as untimely, in its
entirety. As the record stands, when the ARP director wrongly rejected MSP-16-355, Holloway
no longer had an available administrative remedy. See Dillon v. Rogers, 596 F.3d 260, 267 (5th
Cir. 2010); see also Berry v. Wexford Health Sources, 2016 WL 4030934 (S.D. Miss. July 26,
2016). Because the rejection removed Holloway’s “available” administrative remedy,
Under the mailbox rule, pro se prisoner filings are deemed filed as soon as they are deposited into the prison mail
system. See Medley v. Thaler, 660 F.3d 833, 835 (5th Cir. 2011) (citing Houston v. Lack, 487 U.S. 266 (1988)); see,
e.g., Spotville v. Cain, 149 F.3d 374, 378 (5th Cir. 1998) (holding § 2254 applications deemed filed on date inmate
tenders petition to prison officials for mailing).
exhaustion is not required. See Berry, 2016 WL 4030934 at *1. Accordingly, Defendants’
Motion  and the related Joinder  are hereby denied with regard to claims based on MSP16-355.
For these reasons, the Court finds that the Motion for Summary Judgment Based on
Failure to Exhaust Administrative Remedies , and the related Joinder , should be granted
in part and denied in part. Likewise, Holloway’s Motion response  is granted in part and
denied in part. Accordingly, Plaintiff’s claims regarding his conditions of confinement at Unit
42, as found in MSP-16-700, are hereby dismissed without prejudice. Therefore, the following
Defendants, named by Plaintiff as employees of MDOC at Parchman, are dismissed without
prejudice: Supt. Earnest Lee, Warden Sonja Sanciel, and Deputy Warden Simon Lee. The
Motion  and Joinder  are denied as to Plaintiff’s claims of denial of adequate mental
health care and medical care at Parchman’s Unit 42, as found in MSP-16-355.
By separate order, the Court will establish scheduling and discovery deadlines governing
Holloway’s remaining claims alleging: (1) failure to protect him based upon an alleged rape that
occurred on October 1, 2015, while he was housed at CMCF, and (2) denial of adequate mental
health care and medical care at Parchman’s Unit 42.
SO ORDERED, this the 14th day of August, 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?