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Diggins v. Mearday

United States District Court, M.D. Louisiana

December 20, 2017

ROBERT DIGGINS #437583
v.
KENYON MEARDAY, ET AL.

         NOTICE

         Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the United States District Court.

         In 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.

         ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE

         This 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.

         The 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. Turner.[1]

         Defendant 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 (5thCir. 1991).

         In his 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 steps.

         On 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.

         When 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.

         In 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.[2] 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. Id.

         A 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.

         The 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 ...


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