United States District Court, M.D. Louisiana
MAGISTRATE JUDGE'S REPORT
STEPHEN C. RIEDLINGER, Magistrate Judge.
Before the court is the defendants' Motion for Summary Judgment. Record document number 21. The motion is opposed. Defendants moved for summary judgment relying on a statement of undisputed facts and the results of Administrative Remedy Procedure (hereafter, "ARP") EHCC-20131106, EHCC-2013-1244, EHCC-2014-230 and EHCC-2014-276, true copies of which were previously filed in the record and were incorporated into the motion.
I. Factual Allegations
Pro se plaintiff, an inmate currently confined at Dixon Correctional Institute, Jackson, Louisiana, filed this action pursuant to 42 U.S.C. § 1983 against Louisiana Department of Public Safety and Corrections Secretary James LeBlanc, Elayn Hunt Correctional Center (hereafter "EHCC") Warden Seth Smith, Dy. Warden Hooper, Asst. Warden McKey and Col. Seals. Plaintiff alleged that: (1) between November 20, 2013 and April 25, 2014, he was confined in protective custody on an administrative lockdown unit and was not permitted outside of his cell for his daily one hour tier time; (2) on April 12, 2014, he was assaulted by an unrestrained inmate after the inmate's cell was accidentally opened; (3) between March 3 and 17, 2014 the unit supervisor failed to make daily rounds on Beaver Two Administrative Segregation Unit; and, (4) on March 26 and 27, 2014, the unit supervisor failed to make daily rounds on Beaver Two Administrative Segregation Unit.
II. Applicable Law and Analysis
A. Standard of Review
Subsection (c)(1) of 42 U.S.C. § 1997e provides the following:
(c) Dismissal.-(1) The court shall on its own motion or on the motion of a party dismiss any action brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility if the court is satisfied that the action is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief.
Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Rule 56, Fed.R.Civ.P. Supporting affidavits must set forth facts which would be admissible in evidence. Opposing responses must set forth specific facts showing that there is a genuine issue for trial. Rule 56(c unsupported assertions, and conclusory allegations are inadequate to defeat a motion for summary judgment. Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 660 (5th Cir. 2012 only consider cited materials, but it may consider other materials in the record. Rule 56(c)(1)(3).
B. Failure to Exhaust Administrative Remedies
Defendants argued that the plaintiff failed to exhaust available administrative remedies before filing suit regarding the claims raised in the Complaint against each of them.
Section 1997e of Title 42 of the United States Code provides in pertinent part as follows:
(a) Applicability of Administrative Remedies.-No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.
Under 42 U.S.C. § 1997e(a), a prisoner must exhaust available administrative remedies before filing a § 1983 suit and is precluded from filing suit while the administrative complaint is pending. Clifford v. Gibbs, 298 F.3d 328, 332 (5th Cir. 2002); Underwood v. Wilson, 151 F.3d 292, 296 (5th Cir. 1998), abrogated in part by Jones v. Bock, 549 U.S. 199, 127 S.Ct. 910 (2007) (abrogating the holding that a district court may dismiss a civil complaint sua sponte for failure to exhaust); Wendell v. Asher, 162 F.3d 887, 891 (5th Cir. 1998); Harris v. Hegmann, 198 F.3d 153, 157 (5th Cir. 1999). A prisoner must exhaust his adiministrative remedies by complying with applicable prison grievance procedures before filing a suit related to prison conditions. Johnson v. Johnson, 385 F.3d 503, 514 (5th Cir. 2004). Not only must the prisoner exhaust all available remedies, but such exhaustion must be proper, including compliance with an agency's deadlines and other critical procedural rules. Woodford v. Ngo, 548 U.S. 81, 90, 126 S.Ct. 2378, 2386 (2006). Because §. 1997e(a) expressly requires exhaustion, prisoners may not deliberately bypass ...