United States District Court, M.D. Louisiana
take notice that the attached Magistrate Judge's Report
has been filed with the Clerk of the United States District
accordance with 28 U.S.C. § 636(b)(1), you have fourteen
(14) days after being served with the attached Report to file
written objections to the proposed findings of fact,
conclusions of law and recommendations therein. Failure to
file written objections to the proposed findings,
conclusions, and recommendations within 14 days after being
served will bar you, except upon grounds of plain error, from
attacking on appeal the unobjected-to proposed factual
findings and legal conclusions of the Magistrate Judge which
have been accepted by the District Court.
NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN
OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.
MAGISTRATE JUDGE'S REPORT AND
RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE
matter comes before the Court on Motion for Summary Judgment
filed on behalf of defendant Sgt. Eric Turner (R. Doc. 21).
The Motion is not opposed.
pro se plaintiff, an inmate incarcerated at the
Louisiana State Penitentiary (“LSP”), Angola,
Louisiana, filed this action pursuant to 42 U.S.C. §
1983 against Sgt. Eric Turner, Sgt. Kenyon Mearday, Sgt.
Jones, and Major Simon complaining that his constitutional
rights have been violated due to the defendants'
retaliation for filing a grievance against defendant Sgt.
Sgt. Turner moves for summary judgment relying upon the
pleadings, a Statement of Undisputed Facts, certified copies
of the plaintiff's pertinent Requests for Administrative
Remedy, and the affidavit of Trish Foster. Pursuant to
well-established legal principles, summary judgment is
appropriate where there is no genuine disputed issue as to
any material fact, and the moving party is entitled to
judgment as a matter of law. Rule 56, Federal Rules of Civil
Procedure. Celotex Corp. v. Catrett, 477 U.S. 317
(1986); Anderson v. Liberty Lobby, Inc., 477 U.S.
242 (1986). A party moving for summary judgment must inform
the Court of the basis for the motion and identify those
portions of the pleadings, depositions, answers to
interrogatories and admissions on file, together with
affidavits, if any, that show that there is no such genuine
issue of material fact. Celotex Corp. v. Catrett,
supra, 477 U.S. at 323. If the moving party carries
its burden of proof under Rule 56, the opposing party must
direct the Court's attention to specific evidence in the
record which demonstrates that the non-moving party can
satisfy a reasonable jury that it is entitled to a verdict in
its favor. Anderson v. Liberty Lobby, Inc.,
supra, 477 U.S. at 248. This burden is not satisfied
by some metaphysical doubt as to alleged material facts, by
unsworn and unsubstantiated assertions, by conclusory
allegations, or by a mere scintilla of evidence. Little
v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994). Rather, Rule 56 mandates that summary judgment be
entered against a party who fails to make a showing
sufficient to establish the existence of an element essential
to that party's case and on which that party will bear
the burden of proof at trial. Celotex Corp. v.
Catrett, supra, 477 U.S. at 323. Summary
judgment is appropriate in any case where the evidence is so
weak or tenuous on essential facts that the evidence could
not support a judgment in favor of the non-moving party.
Little v. Liquid Air Corp., supra, 37 F.3d
at 1075. In resolving a motion for summary judgment, the
Court must review the facts and inferences in the light most
favorable to the non-moving party, and the Court may not
evaluate the credibility of witnesses, weigh the evidence, or
resolve factual disputes. International Shortstop, Inc.
v. Rally's, Inc., 939 F.2d 1257, 1263
Complaint, the plaintiff alleges that on while in
administrative segregation defendant Sgt. Turner would not
provide the plaintiff with a jumpsuit, soap, and other items.
On August 14, 2015, Sgt. Turner threatened to retaliate
against the plaintiff if he submitted a grievance regarding
the jumpsuit, soap, and other items. Sgt. Turner threatened
to have the plaintiff moved to another area of the prison
where he would be attacked by other inmates. The plaintiff
still chose to file his grievance, which was denied at both
October 30, 2015, the plaintiff was let out of his cell for
his recreation hour at 9:30 p.m. rather than during the day
as usual. While the plaintiff was out of his cell, Sgt.
Mearday harassed the plaintiff because he would not bring a
cigarette to another offender. The plaintiff then returned to
his cell to retrieve his shower clothes, and while doing so,
Sgt. Mearday opened offender Noel Dean's cell and
offender Dean then stabbed the plaintiff multiple times.
the plaintiff tried to explain to Major Simon that Sgt.
Mearday had purposefully let offender Dean out of his cell,
Major Simon told the plaintiff to “shut the ….
up” and that he “don't like rats.”
Major Simon instructed Sgt. Mearday to write up the plaintiff
and offender Dean to cover up the incident. Offender Dean
later told unknown persons that an officer had asked him to
attack the plaintiff due to the filing of the plaintiff's
grievance against Sgt. Turner.
response to the plaintiff's allegations, defendant Sgt.
Turner contends that the plaintiff's claims are subject
to dismissal for failure to exhaust administrative remedies.
In this regard, pursuant to 42 U.S.C. § 1997e, the
plaintiff was required to exhaust administrative remedies
available to him at the prison prior to commencing a civil
action in this Court with respect to prison
conditions. This provision is mandatory and applies
broadly to “all inmate suits about prison life.”
Porter v. Nussle, 534 U.S. 516, 532 (2002). Further,
a prisoner must exhaust administrative remedies by complying
with applicable prison grievance procedures before filing a
suit relative to prison conditions. Johnson v.
Johnson, 385 F.3d 503, 517 (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 (2006). 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.'” Johnson v. Johnson,
supra, 385 F.3d at 516, quoting Porter v.
Nussle, supra, 534 U.S. at 525. Further, the
degree of specificity necessary in a prisoner's grievance
should be evaluated in light of this intended purpose.
review of the certified copies of the plaintiff's
pertinent Requests for Administrative Remedy shows that the
plaintiff submitted two ARPs regarding the complained of
incidents allegedly occurring on October 30, 2015. The
plaintiff's first ARP (“2015-3117”) is dated
November 3, 2015, and was withdrawn by the plaintiff on
November 16, 2015. See R. Doc. 18-3.
plaintiff's second ARP is dated December 13, 2015, and
the plaintiff alleges in his Complaint that he submitted this
ARP on January 21, 2016 and again via fax on January 26,
2016. See R. Docs. 1 and 18-4. This ARP was not
marked as received until May 12, 2016, and was rejected on
May 24, 2016 as untimely since more than 90 days had passed