Walker v. Burke et al
ORDER ADOPTING REPORT AND RECOMMENDATIONS for 56 Report and Recommendations, 37 Motion for Summary Judgment filed by defendants Gabrial Walker, Drucilla Jenkins, Velisha Jones, and Management and Training Corporation (joined by defendants James Burke, Centurion of MS, LLC, and Larry Parker (docket entry 41), is granted; 42 Motion to Amend/Correct filed by Tyrone James Walker is denied. Signed by Honorable David C. Bramlette, III on 5/4/2017 (cwl)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
TYRONE JAMES WALKER, #K5384
CIVIL ACTION NO. 5:16-cv-17(DCB)(MTP)
MEDICAL DIRECTOR JAMES BURKE, DEPUTY
WARDEN GABRIAL WALKER, BERNADETTE
RODRIGUEZ, DRUCILLA JENKINS, NURSE
UNKNOWN PARKER, VELISHA JONES,
MANAGEMENT AND TRAINING CORPORATION,
AND CENTURION OF MS, LLC
ORDER ADOPTING REPORT AND RECOMMENDATION
This cause is before the Court on the Motion for Summary
(docket entry 37) filed by defendants Gabrial Walker, Drucilla
Jenkins, Velisha Jones, and Management and Training Corporation
(joined by defendants James Burke, Centurion of MS, LLC, and Larry
Parker (docket entry 41)), on the plaintiff Tyrone James Walker
(“Walker”)’s Motion to Amend Complaint Adding a Party or Parties
objections to the Report and Recommendation were filed by the
plaintiff or defendants. Having carefully considered the record in
this case, as well as the applicable law, the Court finds as
Plaintiff Walker, proceeding pro se and in forma pauperis, is
Department of Corrections (“MDOC”), and is currently housed at the
Mississippi. Walker filed the instant civil rights action pursuant
to 42 U.S.C. § 1983, on or about March 2, 2016.
According to the
plaintiff, when he was housed at Wilkinson County Correctional
Facility (“WCCF”), Dr. Burke beat the plaintiff’s leg with an “i.v.
pole,” causing a fracture.
At the time, the plaintiff claims he
was in full restraints and was also being held down by defendants
subsequently placed in a lock down cell where, for two weeks,
Management and Training Corporation (“MTC”) and defendant Rodriguez
denied him medical attention for his broken leg. He was then taken
prevented the hospital from placing a cast on his leg, giving him
only a splint.
The plaintiff further claims that on February 9, 2016, he was
transferred to EMCF.
He complains that he was placed on lock down
where officers do not perform security checks, and nurses do not
He also claims that he has filled out sick
calls to “all of the officers,” nurses, unit manager, and mental
health counselors. These sick calls complain about the pain in the
blackouts, but the requests are alleged by the plaintiff to have
The plaintiff claims that the only medication he
has been prescribed is a psychiatric medication, but he is not
receiving it because the nurses will not come to his zone.
plaintiff failed to exhaust his administrative remedies before
filing his claim.
Those defendants who did not file the initial
motion subsequently joined the motion, arguing that the claims
against them should also be dismissed for the plaintiff’s failure
to exhaust his administrative remedies.
Following the plaintiff’s responses to the motion and joinder,
Magistrate Judge Parker issued his Report and Recommendation.
A motion for summary judgment will be granted when “the record
indicates that there is ‘no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of
Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285,
288 (5th Cir. 2004)(citing Fed.R.Civ.P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986)).
“The moving party must show
admissible evidence in court, it would be insufficient to permit
the nonmoving party to carry its burden.”
Beck v. Texas State Bd.
of Dental Examiners, 204 F.3d 629, 633 (5th Cir. 2000).
nonmoving party.” Id. However, the nonmoving party “cannot defeat
assertions, or ‘only a scintilla of evidence.’”
Turner v. Baylor
Richardson Medical Center, 476 F.3d 337, 343 (5th Cir. 2007)
(quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.
In the absence of proof, the Court does not “assume that
the nonmoving party could or would prove the necessary facts.”
Little, 37 F.3d at 1075 (emphasis omitted).
The nonmovant cannot
survive a proper motion for summary judgment by resting on the
allegations in his pleadings.
Isquith v. Middle South Utilities,
Inc., 847 F.2d 186, 199 (5th Cir. 1988); see also Celotex, 477 U.S.
at 325-26. Instead, the nonmovant must present evidence sufficient
to support a resolution of the factual issues in his favor.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
The defendants assert that the plaintiff’s case should be
dismissed because he has failed to exhaust his administrative
The Prison Litigation Reform Act (“PLRA”), 42 U.S.C. §
administrative remedies prior to filing suit under 42 U.S.C. §
A prisoner cannot satisfy the exhaustion requirement “by
administrative grievance or appeal” because “proper exhaustion of
administrative remedies is necessary.”
Woodford v. Ngo, 548 U.S.
administrative remedies even where the relief sought - monetary
damages - cannot be granted by the administrative process.” Id. at
The United States Court of Appeals for the Fifth Circuit has
upheld the grant of summary judgment where the evidence reveals
that an inmate has not followed prison guidelines for filing
grievances, thus failing to exhaust his administrative remedies.
Stout v. North-Williams, 476 Fed. App’x 763, 765 (5th Cir. 2012).
Furthermore, courts have clearly held that a prisoner cannot
fulfill the exhaustion requirement through general allegations that
he notified prison officials of a violation; rather, he must follow
the process set forth by the prison. See, e.g., Woodford, 548 U.S.
at 83-84; Johnson v. Ford, 261 Fed. App’x 752, 755 (5th Cir. 2008)
(stating that the Fifth Circuit takes a “strict approach” to the
Dep’t., 2008 WL 116333, at *1 (5th Cir. Jan. 11, 2008)(stating that
under the PLRA, the prisoner must comply with all administrative
achieved during the federal proceeding.
Pre-filing exhaustion is
administrative remedies were not exhausted.” Gonzalez v. Seal, 702
F.3d 785, 788 (5th Cir. 2012).
Because exhaustion is an affirmative defense, the defendants
bear the burden of demonstrating that the plaintiff failed to
exhaust available administrative remedies.
F.3d 260, 266 (5th Cir. 2010).
Dillon v. Rogers, 596
Miss. Code Ann. § 47-5-801 grants
MDOC the authority to adopt an administrative review procedure at
each of its correctional facilities.
Pursuant to this statutory
authority, MDOC has set up an Administrative Remedy Program (“ARP”)
through which an offender may seek formal review of a complaint
relating to any aspect of his incarceration. The ARP is a two-step
process. Inmates are required to initially submit their grievances
in writing to the Legal Claims Adjudicator within thirty days of
If, after screening, a grievance is accepted into
the ARP, the request is forwarded to the appropriate official, who
will issue a First Step Response.
If the inmate is unsatisfied
with this response, he may continue to the Second Step by using ARP
form ARP-2 and sending it to the Legal Claims Adjudicator. A final
decision will be made by the Superintendent, Warden, or Community
If the offender is not satisfied with the
Second Step Response, he may file suit in state or federal court.
See Cannady v. Epps, 2006 WL 1676141, at *1 (S.D. Miss. June 15,
In support of their claim that the plaintiff failed to
properly exhaust his claims before filing suit in this Court, the
defendants offer the sworn affidavit of Janice Fountain, an MDOC
employee who works as the ARP Coordinator at WCCF.
affidavit, Fountain states that the plaintiff filed an ARP while
incarcerated at WCCF regarding an incident with Dr. James Burke
that resulted in his leg being broken, and complaining that he was
not receiving medicine for his leg.
She also states that the
plaintiff exhausted the ARP process when he received a second step
response from Health Services Administrator Patsy Wiley.
response was signed by Wiley on June 6, 2016, and signed by the
plaintiff on June 21, 2016. However, these dates are approximately
3 months after the plaintiff filed the current action.
The defendants also offer the sworn affidavit of Mary Dempsey,
an MDOC employee who works as the ARP Coordinator at EMCF.
affidavit, Dempsey states that the plaintiff filed an ARP while
incarcerated at EMCF complaining that he had not received pain
medication for his broken leg. She states that Plaintiff exhausted
the ARP process when he received a second step response from Dr.
Abanan on April 5, 2016.
However, this date is approximately one
month after the plaintiff filed the current action.
In response to the defendants’ Motion for Summary Judgment,
the plaintiff states that “he did in fact file an ARP,” and submits
a copy of a “First Step Response Form” as proof thereof.
defendants submit that this particular grievance submitted by the
plaintiff pertained to a different incident that occurred in
October of 2015 (before the incident with Dr. Burke) and they
submit the plaintiff’s ARP grievance as proof.
They also argue
that regardless of whether this grievance is related to the current
action, it was not exhausted until after this action was filed. In
support, they offer the second step response to this particular
grievance which is dated August 4, 2016.
This date is five months
after the plaintiff filed the current action.
One of the principal purposes of the administrative exhaustion
requirement is to provide fair notice to prison officials of an
inmate’s specific complaints so as to provide “time and opportunity
to address complaints internally.”
503, 517 (5th Cir. 2004).
Johnson v. Johnson, 385 F.3d
The record before the Court shows that
Walker filed this action before receiving a second-step response
through the ARP with regard to the grievances he filed.
he has not demonstrated that exhaustion would have been futile or
that administrative remedies were unavailable.
Walker did, in
fact, file grievances, but he did not exhaust the ARP process
before filing suit.
Exceptions to the exhaustion requirement are only appropriate
where the available administrative remedies are unavailable or
wholly inappropriate to the relief sought, or where the attempt to
exhaust such remedies would itself be patently futile.
Rich, 11 F.3d 61, 62 (5th Cir. 1994).
The Fifth Circuit has taken
the position that exceptions to the exhaustion requirement only
apply in “extraordinary circumstances,” and that the prisoner bears
the burden of demonstrating the futility or unavailability of
The plaintiff has not made such a
In his Report and Recommendation, Magistrate Judge Parker
recommends that this case be dismissed because the plaintiff failed
to exhaust his administrative remedies before filing suit.
Court finds that the Report and Recommendation shall be adopted,
and that the defendants’ Motion for Summary Judgment shall be
The plaintiff has filed a motion to amend his complaint to add
the names of people he claims are responsible for him not receiving
medicine while at EMCF.
Since adding these parties would not
administrative remedies in this unit, and since the plaintiff
failed to exhaust his administrative remedies before filing suit,
his motion to amend the complaint shall be denied.
IT IS HEREBY ORDERED that the Report and Recommendation of
Magistrate Judge Michael T. Parker (docket entry 56) is adopted as
the findings of fact and conclusions of law in this case;
FURTHER ORDERED that the Motion for Summary Judgment (docket
entry 37) filed by defendants Gabrial Walker, Drucilla Jenkins,
Velisha Jones, and Management and Training Corporation (joined by
defendants James Burke, Centurion of MS, LLC, and Larry Parker
(docket entry 41)), is GRANTED;
FURTHER ORDERED that the plaintiff Tyrone James Walker’s
Motion to Amend Complaint Adding a Party or Parties (docket entry
42) is DENIED.
A Final Judgment, granting summary judgment in favor of the
defendants for the plaintiff’s failure to exhaust administrative
remedies, and dismissing this case without prejudice, shall issue
of even date herewith.
SO ORDERED, this the 4th day of May, 2017.
/s/ David Bramlette
UNITED STATES DISTRICT JUDGE
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