Hinton v. Martin et al
OPINION AND ORDER: adopting 35 Report and Recommendations. IT IS FURTHER ORDERED that the Motion of Defendants for ummary Judgment [Docket No. 22] is hereby granted. IT IS FURTHER ORDERED that Plaintiffs Motions to Certify lass and for Partial Su mmary Judgment [Docket Nos. 24 and 29, andthe Motions of Defendants to Strike [Docket Nos. 31 and 34] are all hereby dismissed as moot. A Final Judgment dismissing this case with prejudice shall be entered this day. Signed by District Judge William H. Barbour, Jr on 7/6/2017 (Copy mailed to plaintiff) (cwl)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
HENRY HINTON, JR.
CIVIL ACTION NO. 3:16-cv-616-WHB-JCG
DENNIS MARTIN and
PREMIER SUPPLY, LLC
OPINION AND ORDER
This cause is before the Court on Plaintiff’s Objection to the
Report and Recommendation entered by United States Magistrate Judge
John C. Gargiulo.
As Plaintiff is proceeding in this case pro se,
the allegations in his pleadings have been liberally construed. See
United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994).
considered the pleadings, the underlying Report and Recommendation,
as well as supporting and opposing authorities, the Court finds
Plaintiff’s Objection is not well taken and should be overruled.
At all times relevant to this case, Henry Hinton, Jr.,
(“Hinton”), was incarcerated at the Central Mississippi Correction
In 2016, Hinton filed a lawsuit against Premier Supply,
LLC, and its Chief Operating Officer/Owner, Dennis Martin.1 In his
Premier Supply, LLC, and Dennis Martin will be collectively
referred to as “Defendants”.
Complaint, Hinton complains, among other things, that Defendants
have violated his constitutional and other rights.
representation” because he was forced to pay state and local sales
tax on goods purchased from the prison commissary even though he,
as an incarcerated “ward” of the state, is no longer represented by
the state/municipal governments.
Second, Hinton alleges that
Defendants have violated his constitutional rights by “stealing”
money from him, and that the alleged thievery also violates the
codified at 18 U.S.C. § 1962, et seq.
allegations are based on claims that he and other inmates do not
receive notice that Defendants charge fees, which are automatically
withdrawn from their inmate accounts, at the time deposits are made
to their accounts and/or when they check their account balances.
During the course of litigation, Defendants moved for summary
judgment on the grounds that Hinton failed to exhaust his available
administrative remedies before filing his lawsuit.
As to this
issue, the record shows that Hinton filed two grievances with the
Mississippi Department of Corrections Administrative Remedy Program
(“MDOC”) relevant to the claims alleged in this lawsuit. The first
grievance, which was filed on or about May 23, 2016, relates to
Hinton’s “taxation without representation” complaints. The second,
which was filed on or about May 30, 2016, relates to Hinton’s
Both grievances were rejected on the grounds
they raised multiple complaints that needed to be filed separately.
Although Hinton was granted five days from the dates on which his
grievances were rejected to correct and re-file them, he chose to
not do so.
Additionally, Hinton did not appeal or otherwise
administratively challenge the rejection of his initial grievances.
Based on Hinton’s failure to correct and re-submit his initial
Defendants argued that he had failed to exhaust his available
administrative remedies as required by the Prison Litigation Reform
Act (“PLRA”), codified at 42 U.S.C. § 1997e(a), to bring suit
In response, Hinton did not dispute that he had neither
corrected and re-filed his initial grievances, nor appealed or
pursued any other administrative challenges with respect to the
rejection of those grievances.
Instead, Hinton argued that his
grievance only contained one complaint, and he could not determine
either how to correct the initial grievances or appeal their having
Hinton further argued that because he did not know
how to proceed with respect to the grievance procedure, any
potential administrative remedies had been rendered unavailable to
him and, therefore, the exhaustion requirement was not applicable.
The matter came before United States Magistrate Judge John C.
Gargiulo who, after considering the pleadings, found (1) there did
not exist a genuine issue of material fact that Hinton had not
exhausted his administrative remedies, and (2) there was no basis
for finding that he was excused from the exhaustion requirement.
See R and R [Docket No. 35].
Upon those findings, Judge Gargiulo
prejudice. Hinton timely objected to the Report and Recommendation
(“R and R”).
Under Rule 72(b) of the Federal Rules of Civil
magistrate judge’s report and recommendation and, upon the filing
of a proper, timely objection, must conduct a de novo review.
Koetting v. Thompson, 995 F.2d 37, 40 (5th Cir. 1993)(citations
omitted). After review, the district judge “may accept, reject, or
modify the recommended disposition; receive further evidence; or
return the matter to the magistrate judge with instructions.”
R. CIV. P. 72(b)(3).
In his objection, Hinton first challenges Judge Gargiulo’s asa-matter of law finding that a court does not have discretion to
excuse an inmate’s failure to exhaust administrative remedies. See
Obj. [Docket No. 37], 2 (arguing that Judge Gargiulo noted that
“District Courts have no discretion to excuse a prisoner’s failure
to properly exhaust” and that “the Magistrate’s conclusion was
supported by federal law. See Woodford v. Ngo, 548 U.S. 81, 85
(2006) (explaining that the exhaustion of administrative remedies
requirement of the PLRA “is no longer left to the discretion of the
district court, but is mandatory”).
Second, Hinton objects to the R and R by arguing that there
exists a fact issue as to whether the exhaustion requirement should
apply to him because the MDOC “frustrated and impeded” his ability
to exhaust his administrative remedies by improperly rejecting his
The Court finds no support for this argument in the
exhaustion of administrative remedies ... means using all steps
that the agency holds out, and doing so properly (so that the
agency addresses the issues on the merits).” Woodford, 548 U.S. at
90 (citations omitted).
Here, there are no issues of fact with
respect to whether Hinton availed himself to all of the steps
discussed above, the two grievances filed by Hinton were rejected
by the MDOC on the grounds that each contained multiple complaints.
After they were rejected, Hinton had an opportunity to correct and
re-file the grievances within a five-day period.
He did not.
Instead, Hinton simply decided (1) there was nothing wrong with the
initial grievances and, therefore, there was no requirement on his
part to attempt to correct them, and (2) there was no avenue for
him to challenge the allegedly improper rejection of his grievances
by the MDOC and, therefore, he was not required to pursue any
additional administrative actions.
The Court finds that as there is no dispute that Hinton did
not correct and re-file his grievances, and there is no dispute
that Hinton made no further attemp and/or took no additional action
to try to exhaust his administrative remedies, it must agree with
Judge Gargiulo’s finding that there does not exist a genuine issue
of material fact with respect to whether Hinton satisfied the
exhaustion requirement of the PLRA. Accordingly, after conducting
a de novo review of the portions of the R and R to which Hinton
objected, the Court finds the R and R is well reasoned and
supported by applicable law. Accordingly, the Court will adopt the
R and R over Hinton’s objections.
For the foregoing reasons:
IT IS THEREFORE ORDERED that the Report and Recommendation of
the Magistrate Judge [Docket No. 35] is hereby accepted and adopted
over Plaintiff’s Objection.
IT IS FURTHER ORDERED that the Motion of Defendants for
Summary Judgment [Docket No. 22] is hereby granted.
IT IS FURTHER ORDERED that Plaintiff’s Motions to Certify
Class and for Partial Summary Judgment [Docket Nos. 24 and 29, and
the Motions of Defendants to Strike [Docket Nos. 31 and 34] are all
hereby dismissed as moot.
A Final Judgment dismissing this case with prejudice shall be
entered this day.
SO ORDERED this the 6th day of July, 2017.
s/William H. Barbour, Jr.
UNITED STATES DISTRICT JUDGE
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