Tolbert, Jr. v. Federal Bureau of Prisons et al

Filing 37

ORDER ADOPTING IN PART AND REJECTING IN PART REPORT AND RECOMMENDATION AND GRANTING MOTION FOR SUMMARY JUDGMENT. Signed by District Judge Louis Guirola, Jr on 3/2/19 (LAT)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
RICKY WAYNE TOLBERT, JR.
v.

PLAINTIFF
CAUSE NO. 3:17CV1010-LG-LRA

LIEUTENANT UNKNOWN MARTINEZ;
et al.

DEFENDANTS

ORDER ADOPTING IN PART AND REJECTING IN PART REPORT AND
RECOMMENDATION AND GRANTING MOTION FOR SUMMARY
JUDGMENT
This cause comes before the Court on the [33] Report and Recommendation of
United States Magistrate Judge Linda R. Anderson, entered in this cause on
January 24, 2019. The defendants in this prisoner civil rights case filed a [23]
Motion to Dismiss or, in the Alternative, for Summary Judgment arguing that the
plaintiff, Ricky Wayne Tolbert, Jr., failed to exhaust available administrative
remedies before filing his Bivens 1 action. Magistrate Judge Anderson determined
that Tolbert had failed to exhaust his claims through the four-step Bureau of
Prisons (“BOP”) administrative remedy process before filing this lawsuit. Judge
Anderson therefore recommends that summary judgment be entered in Defendants’
favor and that Tolbert’s claims be dismissed. Tolbert filed an [36] Objection to
Judge Anderson’s Report and Recommendation.
A party that files a timely objection is entitled to a de novo determination of
those portions of the report or specified proposed findings or recommendations to

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.
388 (1971).
1

which specific objection is made. United States v. Raddatz, 447 U.S. 667, 673
(1980); 28 U.S.C. § 636(b)(1). The objections must specifically identify those
findings or recommendations to which objections are being made. The district court
need not consider frivolous, conclusive, or general objections. Battle v. U.S. Parole
Comm’n, 834 F.2d 419, 421 (5th Cir. 1987). Moreover, where the objections are
repetitive of the arguments already made to the magistrate judge and the district
court finds no error, the court need not make new findings or reiterate the findings
of the magistrate judge. Hernandez v. Livingston, 495 F. App’x 414, 416 (5th Cir.
2012); Koetting v. Thompson, 995 F.2d 37, 40 (5th Cir. 1993).
Tolbert’s Objection does not raise any new arguments. He does not challenge
Magistrate Judge Anderson’s conclusion that he failed to exhaust administrative
remedies. Rather, he reasserts that he did not need to exhaust administrative
remedies because his complaint alleges a life-threatening situation that states an
arguable Eighth Amendment Claim. To be clear, Tolbert does not assert or
otherwise articulate that the administrative remedy process was unavailable to
him. 2 See Ross v. Blake, 136 S. Ct. 1850, 1858-60 (2016); Hinton v. Martin, 742 F.
App’x 14, 15 (5th Cir. 2018). His arguments regarding the merits of his Eighth
Amendment claim need not be considered because he has failed to exhaust available
administrative remedies.

Tolbert makes several bald assertions about the “futility” of completing the
administrative process, but he does not even begin to explain how or why it would
be futile to attempt completion of the BOP’s process.

2

–2–

The Court has conducted a de novo review of Tolbert’s objections to the
magistrate judge’s findings, the record in this case, and relevant law. For the
reasons stated in Magistrate Judge Anderson’s Report and Recommendation, the
defendants’ Motion to Dismiss or, in the Alternative, for Summary Judgment will be
granted and Tolbert’s claims will be dismissed for failure to exhaust administrative
remedies. However, such a dismissal should be without prejudice rather than with
prejudice. See Taylor v. Jones, 749 F. App’x 305, 305 (5th Cir. 2019); Clifford v.
Gibbs, 298 F.3d 328, 333 (5th Cir. 2002).
IT IS THEREFORE ORDERED AND ADJUDGED that the [33] Report
and Recommendation of United States Magistrate Judge Linda R. Anderson,
entered in this cause on January 24, 2019, should be, and the same hereby is,
adopted as the finding of this Court. Except that Plaintiff’s claims will be dismissed
without prejudice for failure to exhaust administrative remedies. Plaintiff Ricky
Wayne Tolbert, Jr.’s [36] Objections are OVERRULED.
IT IS FURTHER ORDERED AND ADJUDGED that the defendants’ [23]
Motion to Dismiss or, in the Alternative, for Summary Judgment – which this Court
construes as a motion for summary judgment – is GRANTED. The plaintiff’s
claims brought pursuant to 42 U.S.C. § 1983 are DISMISSED without prejudice
for failure to exhaust administrative remedies.
SO ORDERED AND ADJUDGED this the 2nd day of March, 2019.
s/

Louis Guirola, Jr.

LOUIS GUIROLA, JR.
UNITED STATES DISTRICT JUDGE
–3–