Jackson v. Blackman et al

Filing 30

ORDER - The Court adopts the R&R 28 as the opinion of the Court. A separate judgment will be entered consistent with Federal Rule of Civil Procedure 58. Signed by Chief District Judge Daniel P. Jordan, III on 2/13/2018 (ND)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
JESSE JACKSON
V.

PLAINTIFF
CIVIL ACTION NO. 3:16-CV-752-DPJ-FKB

B.E. BLACKMAN, WARDEN, ET AL.

DEFENDANTS
ORDER

Petitioner Jesse Jackson is a federal inmate currently incarcerated at the Federal
Correctional Complex in Yazoo City, Mississippi (“FCC-Yazoo”). Jackson complains about the
conditions of his confinement, pursuing his claims under Bivens v. Six Unknown Named Agents
of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), and 28 U.S.C. § 1331. After
Defendants filed their Motion to Dismiss, or, in the Alternative, Motion for Summary Judgment
[22], the Court referred the matter to United States Magistrate Judge F. Keith Ball. Judge Ball
thereafter entered a January 16, 2018 Report and Recommendation [28] (“R&R”) in which he
concluded that Defendants’ motion should be granted and the case dismissed without prejudice
for failure to exhaust administrative remedies. Jackson filed no objection to the R&R, but he did
file a subsequent Motion for Summary Judgment [29]. The bulk of that motion addresses the
exhaustion issue, and the Court will liberally construe it as an objection. Moreover, the Court
has reviewed the record as a whole, including the exhibits Jackson submitted in response to
Defendants’ Motion. See Pl.’s Resp. [24]. Based on this record, the Court concludes that the
R&R should be adopted as the Court’s opinion.
In basic terms, Jackson complained about conditions at FCC-Yazoo, including conditions
following a power outage in June 2014. Under the Prison Litigation Reform Act of 1996:
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
exhausted.
42 U.S.C. §1997e(a) (Supp. 2000). These remedies include an informal presentation of the issue
to staff, 28 C.F.R. § 542.13, an official Administrative Remedy Request (“ARR”), id. §
542.14(a), and a two-level appellate process, id. § 542.15(a). These exhaustion requirements
apply to Bivens suits brought by federal prisoners. Porter v. Nussle, 534 U.S. 516, 524 (2002).
Jackson attempted to follow this process to some extent, but his ARR and subsequent
appeals were rejected at each level on procedural grounds, including his failure to limit the ARR
to a single issue. Each time the Bureau of Prisons rejected his submission, it instructed Jackson
to follow the filing directions provided in prior rejection notices. See, e.g., Rejection Notice [241] at 21. Instead of following those instructions, Jackson simply moved up to the next level of
review stating that he was bypassing the earlier rounds because they incorrectly rejected his
grievances. See, e.g., id. at 17.
As Judge Ball observed, “A prisoner cannot satisfy the exhaustion requirement ‘by filing
an untimely or otherwise procedurally defective administrative grievance or appeal’ because
‘proper exhaustion of administrative remedies is necessary.’” R&R [28] at 5 (quoting Woodford
v. Ngo, 548 U.S. 81, 83–84 (2006)). Judge Ball therefore concluded that Jackson failed to
exhaust. Id. at 5–6.
Jackson addresses the exhaustion issue in his post-R&R Motion for Summary Judgment,
repeating themes he asserted in response to Defendants’ dispositive motion. Primarily, he says
Defendant Christopher Curry obstructed or denied his grievances. Pl.’s Mot. [29] at 3. But the
records Jackson produces explain that he simply filed another grievance after Curry allegedly sat
on the first, and Jackson has not shown that the delay prejudiced his case. See Letter [24-1] at
17.
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Jackson was no doubt frustrated with the process, but he should have followed the advice
he received and submitted a procedurally correct grievance. The Fifth Circuit Court of Appeals
“takes a strict approach to the exhaustion requirement,” under which “mere substantial
compliance with administrative remedy procedures does not satisfy exhaustion.” Dillon v.
Rogers, 596 F.3d 260, 268 (5th Cir. 2010) (citations and internal quotation marks omitted). For
this reason, the Fifth Circuit affirmed dismissal in Abbott v. Babin, where, like here,
the [state Administrative Remedy Program (“ARP”)] screening officer rejected
Abbott’s ARP because it contained references to more than the single incident
upon which he sought relief. . . . After his ARP was rejected, Abbott resubmitted
the exact complaint already rejected. Because of the failure to submit a
procedurally-acceptable ARP complaint, the merits of his allegations were never
considered under the First Step of the ARP. Consequently, Abbott failed properly
to exhaust his administrative remedies.
587 F. App’x 116, 118 (5th Cir. 2014).
For these reasons, the Court agrees that Jackson did not exhaust his administrative
remedies and that his case must be dismissed without prejudice to refiling after he properly
exhausts. The Court therefore adopts the R&R [28] as the opinion of the Court. A separate
judgment will be entered consistent with Federal Rule of Civil Procedure 58.
SO ORDERED AND ADJUDGED this the 13th day of February, 2018.
s/ Daniel P. Jordan III
CHIEF UNITED STATES DISTRICT JUDGE

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