Winding v. Boyd et al

Filing 70

ORDER dismissing without prejudice. A separate judgment will be entered. Signed by Magistrate Judge F. Keith Ball on 1/15/13 (dfk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION

JAMES WINDING
VS.

PLAINTIFF
CIVIL ACTION NO. 4:12cv41-FKB

K. BOYD, et al.

DEFENDANTS

OPINION AND ORDER
James Winding is a state prisoner incarcerated at East Mississippi Correctional
Facility (EMCF). He brought this action pursuant to § 1983 alleging that Mississippi
Department of Corrections (MDOC) officials violated his rights by failing to protect him
from an assault by another inmate on February 18, 2102. A Spears1 hearing has been
held, and the parties have consented to jurisdiction by the undersigned.
The Prison Litigation Reform Act (PLRA) requires an inmate to exhaust
administrative remedies before bringing an action with respect to prison conditions. 42
U.S.C. § 1997(e). The PLRA’s exhaustion requirement is mandatory and “applies to all
inmate suits about prison life, whether they involve general circumstances or particular
episodes.” Porter v. Nussle, 534 U.S. 516, 532 (2002). Defendants have filed a motion to
dismiss because of Winding’s failure to complete the Administrative Remedies Program
process regarding this claim.
Winding previously filed a grievance concerning this incident. However, he
withdrew the grievance in connection with the settlement of his claims against officials at
East Mississippi Correctional Facility (EMCF). When he submitted a subsequent

1

See Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).

grievance, MDOC officials apparently informed him that he was barred from doing so
because of his withdrawal of his prior grievance. Based upon the position of MDOC
officials, Winding argued that he has in fact exhausted his administrative remedies
because no further remedies are available to him. However, at the Spears hearing,
counsel for Defendants represented that Winding would be allowed to complete the ARP
process regarding this claim. Thus, because Winding now has a method of seeking
administrative relief, his claim remains unexhausted.
Dismissal is appropriate where an inmate has failed to meet the exhaustion
requirement. Alexander v. Tippah Cnty., Miss., 351 F.3d 626, 630 (5th Cir. 2003). For this
reason, this action is dismissed without prejudice so that Plaintiff may be pursue his
administrative remedies. A separate judgment will be entered.
SO ORDERED this the 15th day of January, 2013.
/s/ F. Keith Ball
________________________________
UNITED STATES MAGISTRATE JUDGE