Kelly v. MDOC et al

Filing 41

ORDER ADOPTING REPORT AND RECOMMENDATIONS 35 Report and Recommendations, granting 26 Motion for Summary Judgment. Signed by Honorable David C. Bramlette, III on 9/27/17. (TLC)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
IKE KELLY, #41039
VS.

PLAINTIFF
CIVIL ACTION NO. 5:16-cv-104(DCB)(MTP)

MANAGEMENT AND TRAINING
CORPORATION, RAVEN DAVIS,
AND ORA PORTER

DEFENDANTS

ORDER ADOPTING REPORT AND RECOMMENDATION
This cause is before the Court on the defendants Management
and Training Corporation, Raven Davis, and Ora Porter’s Motion for
Summary Judgment (docket entry 26) based on the plaintiff Ike
Kelly’s failure to exhaust administrative remedies.

Also before

the Court are a Report and Recommendation (“R&R”) of Magistrate
Judge Michael T. Parker (docket entry 35); objections to the R&R by
the plaintiff (docket entry 36); a response to the objections by
defendants Management and Training Corporation, Raven Davis and Ora
Porter (docket entry 37); and the plaintiff’s first reply (docket
entry 38), second reply (docket entry 39), and third reply (docket
entry 40) to the defendants’ response.

The Court has carefully

considered the defendants’ motion for summary judgment and the
Magistrate Judge’s R&R, as well as the parties’ objections and
responses, and finds as follows:
The plaintiff, Ike Kelly (“Kelly”), proceeding pro se and in
forma pauperis, is a post-conviction inmate in the custody of the
Mississippi Department of Corrections (“MDOC”), and is currently

housed at the South Mississippi Correctional Institution.

Kelly

filed the instant civil rights action pursuant to 42 U.S.C. § 1983
on or about November 1, 2016.
against

MDOC,

the

MDOC

Corporation,

the

State

Correctional

Facility

Initially, he asserted claims

Commissioner,
of

Management

Mississippi,

(“WCCF”)

alleging

and

and

Training

Wilkinson

violations

County
of

his

constitutional rights during his incarceration at WCCF.
Kelly alleges that his cellmate assaulted him on September 10,
2016.

He further claims that the security cells at WCCF are not

equipped with intercom speaker systems or electronically-controlled
cell doors.

He was granted leave to amend his complaint on March

15, 2017, to add claims against officers Davis and Porter based on
the allegation that they were aware, prior to the assault, that his
cellmate posed a threat to other inmates.
Kelly claims that while he struggled with his cellmate for
twenty to thirty minutes, inmates in other cells were beating on
their cell doors to get the attention of the officers on duty.

He

also claims that officers were located in a tower in the unit’s
hallway.

The plaintiff claims that he sustained eight stab wounds

during the alleged assault and that he required treatment for two
days at the Pike County Hospital.
The plaintiff sent a request to MDOC Commissioner Marshall
Fisher on October 12, 2016, to proceed with a “sensitive issue”
request through the Administrative Remedy Program (“ARP”) regarding

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the alleged assault on September 10, 2016.

MDOC’s ARP director,

Richard Pennington, responded to the plaintiff’s request on October
24, 2016, and notified Kelly that his complaint did not meet the
criteria for sensitive treatment.

Pennington also notified the

plaintiff that he had five days from the receipt of Pennington’s
response to submit his request through the regular ARP process as
a non-sensitive request. The plaintiff signed an acknowledgment of
his receipt of the five-day extension to re-file his ARP request
through the regular channels.

Thereafter, Kelly never submitted a

grievance regarding the assault through the regular ARP channels at
WCCF.
The defendants filed their Motion for Summary Judgment on
March 30, 2017, asserting that this matter should be dismissed
because Kelly failed to exhaust his administrative remedies before
filing his claim. The plaintiff responded to the motion on May 15,
2017.

The defendants replied to Kelly’s response on May 16, 2017.

On June 6, 2017, Magistrate Judge Parker issued his R&R.
A motion for summary judgement 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 law.’” Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285,
288 (5th Cir. 2004)(citing Fed. R. Civ. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986)).
that

if

the

evidentiary

material

3

“The moving party must show
of

record

were

reduced

to

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).
must

view

“the

evidence

in

the

light

most

The court

favorable

to

the

nonmoving party.” Id. However, the nonmoving party “cannot defeat
summary

judgment

with

conclusory

allegations,

assertions, or ‘only a scintilla of evidence.’”

unsubstantiated
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.
1994)).

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 this matter should be dismissed
because Kelly failed to exhaust his administrative remedies.

The

Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a),
requires prisoners to exhaust any available administrative remedies
prior to filing suit under 42 U.S.C. § 1983.

A prisoner cannot

satisfy the exhaustion requirement “by filing an untimely or

4

otherwise

procedurally

defective

administrative

grievance

or

appeal” because “proper exhaustion of administrative remedies is
necessary.”

Woodford v. Ngo, 548 U.S. 81, 83-84 (2006).

“Indeed

... a prisoner must now exhaust administrative remedies even where
the relief sought - monetary damages - cannot be granted by the
administrative process.”

Id. at 85.

The United States Court of Appeals for the Fifth Circuit has
upheld the grant of summary judgment where the evidence revealed
that an inmate had not followed prison guidelines for filing
grievances and thus had not exhausted his administrative remedies.
Stout v. North-Williams, 476 Fed. App’x 763, 765 (5th Cir. 2012).
Furthermore, courts have been clear 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
PLRA’s exhaustion requirement); Lane v. Harris Cnty. Medical Dep’t,
No. 06-20935, 2008 WL 116333, at *1 (5th Cir. Jan. 11, 2008)
(stating that under the PLRA, a prisoner must comply with all
administrative
mandatory,

and

procedural
the

case

rules).
must

“Pre-filing
be

dismissed

exhaustion
if

is

available

administrative remedies were not exhausted.” Gonzalez v. Seal, 702
F.3d 785, 788 (5th Cir. 2012). Because exhaustion is an affirmative

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defense, the defendant bears the burden of demonstrating that the
plaintiff failed to exhaust available administrative remedies.
Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir. 2010).
Miss. Code Ann. § 47-5-801 grants the MDOC the authority to
adopt

an

administrative

review

procedure

at

each

of

its

correctional facilities. Pursuant to this statutory authority, the
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 within
thirty days of the incident.

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

then

be

made

Superintendent, Warden, or Community Corrections Director.

by

the

If the

offender is not satisfied with the Second Step Response, he may
file suit in state or federal court. See Mississippi Department of
Corrections Handbook, at Ch. VIII; see also Seales v. Shaw, 2016 WL
616749, at *2 (S.D. Miss. Jan. 26, 2016), report and recommendation
adopted sub nom. Seales v. Wilkinson Cty. Corr. Facility, 2016 WL
616385 (S.D. Miss. Feb. 16, 2016).
The ARP program also contains a provision for sensitive

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issues.

See [26-2] at 2.

If an inmate believes that he would be

adversely affected if his ARP complaint became known at his
facility, he may file a complaint directly to the ARP Director as
a sensitive issue request. Id. The inmate must explain the reason
for not filing his complaint at his facility in his request.

Id.

If his request is denied by the ARP Director, an inmate has five
days from the date he receives the rejection memo to submit his
request through the regular ARP channels, beginning with the first
step.

Id.
The defendants in this case argue that the plaintiff failed to

properly exhaust his claims before filing suit in this Court.

In

support, the defendants offer the plaintiff’s ARP record regarding
the claims currently before this Court.

Janice Fountain, an MDOC

employee who works as the ARP Coordinator at WCCF, has submitted an
Affidavit

outlining

the

plaintiff’s

efforts.

See [26-1] at 1.

administrative

grievance

On or about October 12, 2016, the

plaintiff sent correspondence to MDOC Commissioner Marshal Fisher
requesting permission to proceed with a “sensitive issue” request
regarding the alleged assault through the ARP process.
at

5.

On

October

24,

2016,

MDOC’s

ARP

See [26-1]

Director,

Richard

Pennington, responded to the plaintiff’s request, notifying him
that this matter did not meet the criteria for sensitive treatment.
See [26-1] at 4.

Mr. Pennington’s letter notified the plaintiff

that his request was being returned to him so that he could submit

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it through the regular ARP process as a non-sensitive request. Id.
The letter also notified Kelly that he had five days from the
receipt of Mr. Pennington’s response to submit his potential
grievance through the regular ARP channels.

Id.

On October 25,

2016, the plaintiff signed an acknowledgment of his receipt of the
five-day extension to re-file his ARP request.
Kelly

never

re-submitted

a

grievance

See [26-1] at 3.

regarding

the

alleged

September 10, 2016, incident through the ARP process, and he does
not contest this in his response.1
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

Based on the record before the Court,

Magistrate Judge Parker finds that the plaintiff filed this action
without submitting his grievance through the proper ARP channels.

1

The plaintiff contends that the ARP process has changed since
the last handbook was administered to inmates. See [31] at 2. The
defendants report that this is not the case, and that the plaintiff
may be confusing the ARP process with the Rule Violation Report
process. See [32] at 2. The plaintiff concedes that he failed to
refile his ARP request within five days of receiving the notice from
the ARP Director. See [31] at 2. The plaintiff was directed to
pursue his ARP request through the regular ARP process and signed an
acknowledgment of his receipt of the five-day extension to re-file his
ARP request through the regular channels. See [26-1] at 3. So even
if the plaintiff believed that the ARP process was a one-step process,
he never completed the first step. A prisoner’s ignorance of a
grievance process does not relieve him of his obligation to exhaust
administrative remedies. See Nelson v. White, No. 5:14-cv-81-MTP,
2016 WL 951578, at *3 (S.D. Miss. Mar. 9, 2016).

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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).

Fuller v.

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
administrative review.

Id.

The plaintiff has not made such a

showing. In fact, Kelly was given instructions to file a grievance
through the regular ARP channels when he received the denial of his
sensitive issue request.

See [26-1] at 4.

Based on the record before the Court, Magistrate Judge Parker
recommends (1) that the defendants’ Motion for Summary Judgment
(docket entry 26) be granted, and that this case be dismissed based
on the plaintiff’s failure to exhaust his administrative remedies
before filing suit; and (2) that this action be dismissed without
prejudice.
The plaintiff, in his Objections to the R&R, fails to show
that he exhausted his administrative remedies, and fails to show
that he is entitled to an exception to the exhaustion requirement.
The Court shall therefore adopt the Report and Recommendation
as the findings and conclusions of this Court.
Accordingly,

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IT IS HEREBY ORDERED that the Report and Recommendation of
Magistrate Judge Michael T. Parker (docket entry 35) is ADOPTED as
the findings and conclusions of this Court;
FURTHER ORDERED that the defendants Management and Training
Corporation, Raven Davis, and Ora Porter’s Motion for Summary
Judgment (docket entry 26) is GRANTED;
FURTHER ORDERED that a Final Judgment of Dismissal without
Prejudice shall follow of even date herewith.
SO ORDERED, this the 27th day of September, 2017.

/s/ David Bramlette
UNITED STATES DISTRICT JUDGE

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