Cathey v. Natal et al

Filing 57

ORDER adopting Magistrate Judge's 55 Report and Recommendation; granting Defendants Norma Natal and Unknown Pennington's 42 Motion for Summary Judgment; and dismissing Plaintiff's claims against all individual Defendants for failure to exhaust administrative remedies. Signed by District Judge Halil S. Ozerden on January 8, 2018. (ENW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
CARLOS LAJUAN CATHEY,
#16609-075

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v.
NORMA NATAL, et al.

PLAINTIFF

Civil No. 3:16cv852-HSO-JCG
DEFENDANTS

ORDER ADOPTING MAGISTRATE JUDGE’S [55] REPORT
AND RECOMMENDATION; GRANTING DEFENDANTS NORMA NATAL
AND UNKNOWN PENNINGTON’S [42] MOTION FOR SUMMARY
JUDGMENT; AND DISMISSING PLAINTIFF’S CLAIMS
AGAINST ALL INDIVIDUAL DEFENDANTS FOR FAILURE
TO EXHAUST ADMINISTRATIVE REMEDIES
This matter comes before the Court on the Report and Recommendation [55]
of United States Magistrate Judge John C. Gargiulo, entered in this case on
December 8, 2017, and the Motion for Summary Judgment [42] filed by Defendants
Norma Natal and Unknown Pennington1 on August 10, 2017. Based upon the
Magistrate Judge’s review of the pleadings and relevant legal authority, he
recommended that the Motion for Summary Judgment [42] be granted and that
Plaintiff’s claims against all individual Defendants be dismissed without prejudice
pursuant to 42 U.S.C. § 1997e(a) for failure to exhaust administrative remedies. R.
& R. [55] at 10-11.

In the Motion for Summary Judgment [42], Unknown Pennington is identified as
Angela Pennington. Mot. [42] at 1. Pennington’s first name has not been updated on the
docket.
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For the reasons that follow, the Court finds that the Report and
Recommendation [55] should adopted in its entirety as the finding of this Court,
that the Motion for Summary Judgment [42] should be granted, and that Plaintiff’s
claims against all individual Defendants should be dismissed without prejudice for
failure to exhaust administrative remedies.

Plaintiff’s claims against the United

States of America under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346
and 2671, et seq., will proceed.
I. BACKGROUND
A.

Factual Background
Plaintiff Carlos Lajuan Cathey (“Plaintiff”) claims that in October 2014, while

he was incarcerated at the Federal Correctional Institution in Yazoo City,
Mississippi, he was struck with a lock while watching television in his unit. Am.
Compl. [10] at 1-2. A month later, Plaintiff was released from the “SHU,” but he
maintains that he continued to complain to medical personnel about headaches and
floaters and blurriness in his vision. Id. at 2. Plaintiff contends that medical staff
did not send him to a specialist until March 2016, and at that time, the specialist
informed Plaintiff that he had a tumor and blindness from a delay in treatment.
Id. Plaintiff alleges that the medical staff was deliberately indifferent to his head
injury and that this delay in treatment caused him permanent blindness. Id.
In his Complaint, Plaintiff states that he had not completed the grievance
procedure related to these claims. Compl. [1] at 2. Plaintiff maintains that “[t]he
counselor failed to turn in my BP-8 to start the remedy process but it is pending.”

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Id. at 3.2
B.

Procedural History
Plaintiff filed a pro se Complaint [1] pursuant to 42 U.S.C. § 1983 in this

Court on October 31, 2016, seeking monetary damages from Defendants Norma
Natal, Bureau of Prisons, the United States of America, Unknown Pendleton,
Sharon Baymon, E. Burkhalter, and Retired Counselor B. Smith. Compl. [1] at 16. Plaintiff is proceeding in forma pauperis.
On March 23, 2017, Plaintiff filed an Amended Complaint [10], naming as
Defendants the United States of America, Norma Natal, Unknown Pennington,
Unknown Fernanders, Sharon Baymon, E. Burkhalter, Counselor B. Smith, and the
Bureau of Prisons (“BOP”). In addition to 42 U.S.C. § 1983 claims, the Amended
Complaint [10] advances claims pursuant to Bivens v. Six Unknown Fed. Narcotics
Agents, 403 U.S. 388 (1971), and the FTCA. Am. Compl. [10] at 1-14.
On May 4, 2017, the Court dismissed Defendant BOP and Plaintiff’s claims
under 42 U.S.C. § 1983. See Order [13] at 3. Plaintiff’s Bivens claims against
individual Defendants Norma Natal, Unknown Pennington, Sharon Baymon, E.
Burkhalter, Counselor B. Smith, and FTCA claims against the United States of
America remain.
On August 10, 2017, Defendants Norma Natal and Unknown Pennington
filed a Motion for Summary Judgment [55] based upon failure to exhaust

The BP-8 form is the first step of the BOP grievance procedure, which is informal
resolution of the issue with prison staff. See Butts v. Martin, 877 F.3d 571, 582 (5th Cir.
2017).
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administrative remedies. Defendants presented evidence that administrative
remedies were available to Plaintiff, yet he failed to exhaust them prior to filing the
present case. Plaintiff filed a Response [47] in opposition to the Motion, and
Defendants filed a Rebuttal [49].
On December 8, 2017, the Magistrate Judge entered his Report and
Recommendation [55], recommending that Defendants’ Motion for Summary
Judgment [55] be granted and that Plaintiff’s claims against all individual
Defendants be dismissed without prejudice pursuant to 42 U.S.C. § 1997e(a) for
failure to exhaust administrative remedies. R. & R. [55] at 10-11. The Report and
Recommendation [55] was mailed to Plaintiff on December 8, 2017, via certified
mail return receipt requested, and was received [56] on December 13, 2017.
Any objection to the Magistrate Judge’s Report and Recommendation [55]
was due within fourteen (14) days of service. L.U. Civ. R. 72(a)(3). To date,
Plaintiff has not filed any objection to the Magistrate Judge’s Report and
Recommendation [55], and the time to do so has passed.
II. DISCUSSION
Where no party has objected to the Magistrate Judge’s Report and
Recommendation, the Court need not conduct a de novo review of it.

28 U.S.C. '

636(b)(1) (“a judge of the court shall make a de novo determination of those portions
of the report or specified proposed findings and recommendations to which objection
is made”). In such cases, the Court applies the “clearly erroneous, abuse of
discretion and contrary to law” standard of review. United States v. Wilson, 864

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F.2d 1219, 1221 (5th Cir. 1989).
Having conducted the required review, the Court concludes that the
Magistrate Judge’s findings are not clearly erroneous, nor are they an abuse of
discretion or contrary to law. The Court will adopt the Magistrate Judge’s Report
and Recommendation [55] as the opinion of this Court, will grant the Motion for
Summary Judgment [42], and will dismiss Plaintiff’s claims against all individual
Defendants for Plaintiff’s failure to exhaust available administrative remedies.3
Plaintiff’s remaining claim against the United States under the FTCA will proceed.
III.

CONCLUSION

IT IS, THEREFORE, ORDERED AND ADJUDGED that, the Report and
Recommendation [55] of United States Magistrate Judge John C. Gargiulo, entered
in this case on December 8, 2017, is ADOPTED in its entirety as the finding of this
Court.
IT IS, FURTHER, ORDERED AND ADJUDGED that, the Motion for
Summary Judgment [42] filed by Defendants Norma Natal and Unknown
Pennington on August 10, 2017, is GRANTED.
IT IS, FURTHER, ORDERED AND ADJUDGED that, Plaintiff’s claims
against Defendants Norma Natal, Unknown Pennington, Unknown Fernanders,
Sharon Baymon, E. Burkhalter, and Counselor B. Smith are DISMISSED

3 The Court could also dismiss unserved Defendants Unknown Fernanders, Sharon

Bayman, E. Burkhalter, and B. Smith pursuant to Federal Rule of Civil Procedure 4(m).
Plaintiff received an extension of time until September 29, 2017, to serve any unserved
parties, see Aug. 9, 2017, Text Order, but it does not appear from the record that he has
done so.

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WITHOUT PREJUDICE for Plaintiff’s failure to exhaust available administrative
remedies.
SO ORDERED AND ADJUDGED, this the 8th day of January, 2018.

s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE

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