ROBERT H. WALKER, Magistrate Judge.
Before the Court are two motions for summary judgment filed by the Defendants in this prisoner civil rights lawsuit: motion [26] filed June 1, 2015 by Champlain Eugene Wigglesworth, Chaplain Kenneth Powell
Jimmy Powell, # 48033,
Roger Davis and Gene Newsome are employees of Valley Services, Inc., which contracts with MDOC to provide food services to SMCI. Powell alleges Davis and Newsom refused to order or prepare Muslim meals for him, and complains that they allowed homosexual inmates to prepare and serve food or to work in the kitchen.
On April 9, 2015, the Court conducted a Spears/omnibus hearing to screen the case. All parties have consented to the exercise of jurisdiction by the United States Magistrate pursuant to 28 U.S.C. § 636(c) and FED.R.CIV.P. 73, and the case has been reassigned to the undersigned for all further proceedings. [36], [37]
Under Rule 56, FED.R.CIV.P., a motion for summary judgment shall be granted "if the movant shows there is no genuine dispute as to any material fact and that the movant is entitled to a judgment as a matter of law." A material fact is one that might affect the outcome of the suit under the governing law; a genuine dispute exists when the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). On a motion for summary judgment, the Court views the evidence and draws reasonable inferences most favorable to the non-moving party. Abarca v. Metropolitan Transit Authority, 404 F.3d 938, 940 (5
The party who bears the burden of proof at trial also bears the burden of proof at the summary judgment stage. Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986). One seeking summary judgment bears the initial burden of identifying those portions of the pleadings and discovery on file, and any affidavits, which he believes demonstrate the absence of a genuine issue of material fact. Id., at 325. If the movant fails to show the absence of a genuine issue concerning any material fact, summary judgment must be denied, even if the non-movant has not responded to the motion. John v. State of Louisiana, 757 F.2d 698, 708 (5
Timothy Morris, Chaplain Kenneth Powell and Chaplain Wigglesworth (MDOC Defendants) seek summary judgment on grounds that Powell failed to exhaust available administrative remedies (ARP) prior to filing suit. There is no dispute that Powell was an MDOC inmate at all times pertinent to this action, or that an administrative remedy program exists to address inmates' complaints. Since 2010, the MDOC Administrative Remedy Program has consisted of a two-step process, which begins with an inmate's submitting his grievance to the prison's legal claims adjudicator within thirty days of the incident of which he complains. Howard v. Epps, 2013 WL 2367880, at *2 (S.D. Miss. 2013). The adjudicator screens the grievance to determine whether to accept it into the ARP process. If accepted, the grievance is forwarded to the appropriate official who issues a First Step Response to the inmate's complaint. If the inmate is dissatisfied with the response, he may continue to the second step by completing the appropriate form and sending it to the legal claims adjudicator. The Superintendent, Warden or Community Corrections Director of the facility will issue a Second Step Response. If the inmate is still not satisfied with the response, he may file suit in court. Id.
In support of their motion, MDOC Defendants present the ARP grievances which Powell submitted before he filed this lawsuit, along with affidavits from Joseph Cooley, custodian of Administrative Remedy Program records at SMCI. These documents establish that although Powell filed two ARP grievances concerning food, he did not complete the ARP process as to either of them. Powell filed ARP grievance SMCI-13-2607 on November 6, 2013 complaining about his diet tray, objecting to homosexuals preparing/serving his meal trays or working in the dining hall, and suggesting that Muslims be assigned to work in the dining hall. He received the First Step response January 17, 2014, and did not appeal to the Second Step. [26-1]
On July 31, 2014, Powell filed another ARP grievance-SMCI-14-1691 — stating he wanted the Halal diet. The First Step response was mailed to Powell on September 4, 2014, and no further action was taken with respect to this ARP grievance. [26-2] During the screening hearing and in his response to motion [26], Powell admitted he file no ARP grievance regarding the lack of yard call, and that he did not file a grievance regarding Taleem services until two months after he filed this lawsuit. [43, pp. 2-3]
Exhaustion of administrative remedies through the prison grievance system is required before lawsuits may be filed under 42 U.S.C. § 1983. Wright v. Hollingsworth, 260 F.3d 357, 358 (5
42 U.S.C. § 1997e(a). See Woodford v. Ngo, 548 U.S. 81, 84 (2006)(holding "proper exhaustion of administrative remedies is necessary").
The Fifth Circuit takes "a strict approach" to the exhaustion requirement. See Johnson v. Ford, 261 Fed.Appx. 752, 755 (5
Powell's admission in the screening hearing that he filed no ARP grievance about the lack of yard call, and that he did not file a grievance about Taleem services until after he filed this lawsuit mandates dismissal of those claims. Because the evidence before the Court establishes Powell also failed to pursue to completion, i.e. exhaust, his ARP grievances about his diet tray, Halal diet, or food preparation and service before filing this lawsuit, summary judgment is also appropriate as to those claims.
Newsome and Davis work for Valley Services, Inc. (VSI), which provides food service to SMCI under a contract with the MDOC. Davis was responsible for implementing the contract, and Newsome oversaw the fulfillment of the contract and supervised VSI's employees. The contract [34-1] and underlying request for proposal [34-2] are among the exhibits presented in support of this motion, as is Newsome's affidavit. [34-3] Those documents establish that VSI contracted with MDOC only to provide food services. Nothing in the contract permits or requires VSI or its employees to supervise, control or otherwise deal with any prisoners at SMCI, or to have any control or responsibility for the operation of the prison. Neither VSI nor its employees supervised or had any direct contact with prisoners or inmates, including Powell. The VSI-MDOC contract does not allow VSI employees to accept any requests or directions from any prisoners or inmates. VSI and its employees only prepare meals on site in kitchens separate from the dining halls. They do not serve the food to inmates. After the food is prepared, individuals not employed by VSI transport it to the dining halls, where an MDOC representative signs for and takes custody of it and prisoners serve the meals to the other inmates. Absent a directive from the MDOC, VSI and its employees are not allowed to deviate from the scheduled meals; this includes any dietary restrictions or requests for Muslim/Halal meals. See [34-3], Gene Newsome affidavit; [34-1, p. 2] Section 2.1 of the contract indicating modified and special diet menus were "as determined by the Commissioner;" and [34-3] and [34-4] the "Ramadan list" VSI received from MDOC in June 2015, which does not include Powell's name.
Powell alleges that Davis and Newsome refused to order or prepare Muslim meals for him, but he has presented nothing to show MDOC ever directed Davis and Newsome to do so, or that their employer's contract with MDOC permitted, much less obligated, them to do so. Newsome and Davis had no authority to respond to any direct request from Powell regarding his diet. To obtain relief under § 1983, Powell was required to show he was deprived of rights secured by the Constitution or laws of the United States, and that the deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Daniel v. Ferguson, 839 F.2d 1124, 1128 (5
On October 16, 2015, Powell moved to dismiss the MDOC Defendants' motion, asserting that failure to exhaust must be raised as a Rule 12(b) motion to dismiss rather than one for summary judgment, then if matters outside the pleadings are to be considered, the Court would be required to provide him notice that it would handle the motion as one for summary judgment. [42] The Court finds no merit in this argument. Plaintiff also states in motion [42] that he did not receive a copy of MDOC Defendants' June 1, 2015 summary judgment motion until September 28, 2015. In Order [41], entered September 30, 2015, the Court noted the certificate of service indicated counsel mailed a copy of the MDOC Defendants' motion to Powell the same day it was filed. The Court further stated:
The Court also obviated any prejudice Powell might have claimed by granted him additional time, until October 23, 2015, to respond to the motion filed almost five months earlier, and the Court has considered Powell's response in ruling on Defendants' motions.
On October 16, 2015, Powell filed [43] a response in opposition to [15] the MDOC Defendants' answer and to [34] Davis and Newsome's August 17, 2015 motion for summary judgment. Powell also filed [44] a brief in opposition to Defendants' motions, in which he concedes that exhaustion of administrative remedies is required under 42 U.S.C. § 1997e(A), then responds to Defendants' motions by repeating his earlier allegations and asserting he filed grievances regarding getting a Halal diet. However, Powell's failure to come forward with evidence that he completed the ARP process as to any such grievance, belies his conclusory allegation that he exhausted his administrative remedies. It is therefore,