JOHN C. GARGIULO, Magistrate Judge.
BEFORE THE COURT is a Motion for Summary Judgment for Failure to Exhaust Available Administrative Remedies (ECF No. 55) filed by Defendants Johnnie Denmark, Lt. Mark Davis, Timothy Morris, Brenda Sims, Hubert Davis, Rongelia Powe, Melton Martin, Stacy Taylor, Ronald King,
La Tidus Jones is currently incarcerated with the Mississippi Department of Corrections (MDOC) at the South Mississippi Correctional Institution (SMCI) in Leakesville, Mississippi. He filed this action under 42 U.S.C. § 1983 on July 3, 2014, alleging numerous violations of his rights secured by the First, Fourth, Eighth, and Fourteenth Amendments to the United States Constitution. (ECF No. 1). Proceeding pro se and in forma pauperis, he makes the following claims
Defendants filed the instant Motion for Summary Judgment (ECF No. 55) on October 21, 2015, arguing that claims 1-10 have not been exhausted by the Plaintiff because they were either (1) never grieved through the Administrative Remedy Program (ARP) or (2) backlogged at the time this suit was filed, and therefore had not been addressed by the ARP. (See ECF No. 56, at 1-3). Plaintiff responds that (1) he has evidence to prove that he has exhausted his claims, and (2) summary judgment is inappropriate because the Court "cannot determine which claims are herein is exhausted in light of the ambiguous nature of the (ARP) remedy evidence." (ECF No. 59, at 1-2). Although it is not entirely clear which of Plaintiff's claims Defendants concede to be exhausted,
Summary Judgment is mandated against the 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 has the burden of proof at trial. Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A motion for summary judgment shall be granted "if the movant shows that there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In evaluating a motion for summary judgment, the Court must construe "all facts and inferences in the light most favorable to the non-moving party." McFaul v. Valenzuela, 684 F.3d 564, 571 (5th Cir. 2012).
Because Plaintiff is a prisoner pursuing a civil action seeking redress from government employees, the Prison Litigation Reform Act (PLRA), Pub. L. No. 104-134, 110 Stat. 1321, H.R. 3019 (codified as amended in scattered titles and sections of the U.S.C.), applies and requires that this case be screened.
The PLRA provides that "the Court shall dismiss the case at any time if the court determines that . . . the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915A(b); see 28 U.S.C. § 1915(e)(2)(B). Accordingly, the statute "accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless." Denton v. Hernandez, 504 U.S. 25, 32 (1992).
A centerpiece of the PLRA's effort to "reduce the quantity and improve the quality of prisoner suits" is an "invigorated" exhaustion provision. Porter v. Nussle, 534 U.S. 516, 524-25 (2002). The PLRA provides:
42 U.S.C. § 1997e(a).
"Exhaustion is no longer left to the discretion of the district court, but is mandatory." Woodford v. Ngo, 548 U.S. 81, 84 (2006). "The PLRA attempts to eliminate unwarranted federal-court interference with the administration of prisons, and thus seeks to `affor[d] corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case.'" Id. at 93 (quoting Porter, 534 U.S. at 525). Proper exhaustion is required. A prisoner cannot satisfy the exhaustion requirement "by filing an untimely or otherwise procedurally defective administrative grievance or appeal." Id. at 83-84.
Exhaustion "is a threshold issue that courts must address to determine whether litigation is being conducted in the right forum at the right time." Dillon v. Rogers, 596 F.3d 260, 272 (5th Cir. 2010). "[J]udges may resolve factual disputes concerning exhaustion without the participation of a jury." Id.
The Mississippi Code grants MDOC the authority to adopt an administrative review procedure at each of its correctional facilities. Miss. Code Ann. § 47-5-801. MDOC has implemented an ARP through which prisoners may seek formal review of a complaint or grievance relating to any aspect of their incarceration. See MDOC Inmate Handbook, Ch. VIII, Administrative Remedy Program. Effective September 19, 2010, the ARP is a two-step process. See Threadgill v. Moore, No. 3:10-cv-378-TSL-MTP, 2011 WL 4388832, *3 n.6 (S.D. Miss. July 25, 2011). A prisoner may only have one active complaint at a time; thus when a prisoner files multiple complaints, all but the first are maintained in backlog. Wilson v. Epps, 776 F.3d 296, 300 (5th Cir. 2015).
Defendants assert that Plaintiff failed to exhaust his administrative remedies for claims 1-10 before filing suit because he never filed an ARP complaint for claims 3 and 5, and the others remained in backlog as of October 2015. In support, Defendants provide three sworn affidavits of Joseph Cooley, an Investigator in the ARP. (See ECF No. 55-1; ECF No. 55-2; ECF No. 55-3). In response, Plaintiff argues that the record does not support summary judgment because the ARP remedy evidence is "ambiguous," and he references two ARP complaints as proof that "he has attempted to exhaust" his claims. (ECF No. 59 at 1-2 & n.1).
Plaintiff's arguments are without merit. First, the sworn affidavits of Joseph Cooley in no way contradict the rest of the record before the Court, and clearly indicate (1) that Plaintiff's complaints regarding claims 1, 2, 4, and 6-10 were backlogged when he filed suit, and (2) that Plaintiff never filed a complaint for claims 3 and 5. The MDOC's backlogging procedure "is not unconstitutional, nor does it abrogate § 1997e's exhaustion requirement." Wilson, 776 F.3d at 301 (citing Wilson v. Boise, 252 F.3d 1356 (5th Cir. 2001) (unpublished)). Therefore, Plaintiff's claims 1, 2, 4, and 6-10 remained unexhausted while maintained in backlog. Claims 3 and 5 are unexhausted because they were never even addressed by the ARP. These claims must be dismissed for failure to exhaust administrative remedies.
Plaintiff's eleventh claim, that Defendant Singleton allowed another inmate to read and remove some of Plaintiff's "legal files" from the inmate legal storage room, asserts a claim for deprivation of property and violation of his right to access the courts. However, the deprivation of property by state officials — whether negligent or intentional — does not violate the due process clause of the Fourteenth Amendment as long as adequate post-deprivation remedies exist. Hudson v. Palmer, 468 U.S. 517, 533 (1984). The State of Mississippi provides at least three postseizure remedies, "including actions for conversion, claim and delivery, and replevin, any of which plaintiff can use to recover property he claims was wrongfully taken from him." Smith v. Woodall, No. 1:14-cv-294-HSO-RHW, 2015 WL 9808777, at *5 (S.D. Miss. Oct. 28, 2015), report and recommendation adopted, 2016 WL 165021 (S.D. Miss. Jan. 14, 2016). Moreover, the MDOC ARP grievance procedure may constitute an adequate post-deprivation remedy, see Hudson, at 536 n.15, and the Fifth Circuit has held that "Mississippi's post-deprivation remedies for civil IFP litigants satisfy due process. Nickens v. Melton, 38 F.3d 183, 185 (5th Cir. 1994). These remedies are adequate.
This analysis does not change because the property stolen was legal files. Prisoners have a constitutional right of access to the courts, but an actual injury must result from Defendants' alleged deprivation of Plaintiff's property in order to prevail. Lewis v. Casey, 518 U.S. 343, 350 (1996) (citing Bounds v. Smith, 430 U.S. 817, 817, 821, 828 (1977)). Plaintiff asserts that these documents were necessary to prove his claims in Jones v. Darr, No. 1:13-cv-511-KS-MTP (S.D. Miss. Mar. 26, 2015). He specifically states that these files were "proof of my property being taken and destroyed." The Court cannot fathom what kind of legal files would serve as proof that other property had been stolen. Moreover, Magistrate Judge Parker found Plaintiff's testimony not credible and his claims meritless; Judge Starrett adopted Magistrate Judge Parker's Report and Recommendations and dismissed Plaintiff's claims with prejudice. Jones v. Darr, No. 1:13-cv-511-KS-MTP (S.D. Miss. May 21, 2015). Plaintiff cannot show that he would have been successful in that previous lawsuit if only his legal papers had not been stolen, thus he cannot show an actual injury. See Harbin v. Epps, No. 4:10-CV-109 HTW-LRA, 2013 WL 4432155, at *3 (S.D. Miss. Aug. 15, 2013). Plaintiff has not stated a constitutional violation in claim 11.
Plaintiff asserts in claim 12 that Defendants all acted in concert, pursuant to the orders of Johnnie Denmark and Ronald King, to retaliate against Plaintiff for filing prior lawsuits. However, Plaintiff provides nothing more than this bald assertion to support such a claim. He has not even provided more specific factual allegations to buttress this conclusory allegation of orchestrated retaliation. The assertions in his thirteenth claim regarding living conditions are similarly unsubstantiated. Because such conclusory allegations and unsubstantiated assertions are insufficient at the summary judgment stage of review, see Celtic Marine Corp. v. James C. Justice Cos., Inc., 760 F.3d 477, 481 (5th Cir. 2014), the Court finds that claims 12 and 13 must be dismissed.
Indigent litigants in federal civil rights cases generally possess no constitutional or statutory right to appointed counsel. See Salmon v. Corpus Christi Indep. Sch. Dist., 911 F.2d 1165, 1166 (5th Cir. 1990); Jackson v. Cain, 864 F.2d 1235, 1242 (5th Cir. 1989); Cupit v. Jones, 835 F.2d 82, 86 (5th Cir. 1987). A trial court is not required to appoint counsel for an indigent party in a civil rights lawsuit unless the case presents truly exceptional circumstances. See Freeze v. Griffith, 849 F.2d 172, 175 (5th Cir. 1988); Good v. Allain, 823 F.2d 64, 66 (5th Cir. 1987); Feist v. Jefferson Co. Comm'rs Court, 778 F.2d 250, 253 (5th Cir. 1985); Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982).
Although no comprehensive definition of "exceptional circumstances" is practical, the existence of such circumstances will necessarily turn on two basic considerations: (1) the type and complexity of the case and (2) the abilities of the individual brining it. See Freeze, 849 F.2d at 175; Good, 823 F.2d at 66; Feist, 778 F.2d at 253; Ulmer, 691 F.2d at 212. The Fifth Circuit has directed trial courts to consider whether the appointment of counsel would be of service not only to the plaintiff, but also possibly to the court and the defendant, through sharpening of the issues, the shaping of the examination and cross-examination of witnesses, and thus, the shortening of trial and assisting in a just determination. See Cooper v. Sheriff, Lubbock Co., Tex., 929 F.2d 1078, 1084 (5th Cir. 1991); Feist, 778 F.2d at 253; Ulmer, 691 F.2d at 213. It is also appropriate for the Court to consider whether the indigent plaintiff has demonstrated an inability to secure the assistance of private counsel, especially in view of the opportunity for a prevailing Section 1983 plaintiff to recover attorney's fees. Cain, 864 F.2d at 1242.
After consideration of the record along with applicable case law, the Court finds no exceptional circumstances warranting appointment of counsel. Most of the claims advanced by Plaintiff are of the type routinely advanced and handled by pro se prisoner plaintiffs, and neither the Court nor Defendants will benefit from having an attorney sharpen the issues behind his more conspiratorial claims. Plaintiff has shown himself capable of presenting his Complaint, its deficiencies on the merits notwithstanding. His own unwillingness to comply with the PLRA's exhaustion requirements (with which he should be intimately acquainted after having filed numerous civil suits) and the lack of any supporting evidence for his claims will not be cured by appointment of counsel. Moreover, Plaintiff has failed to demonstrate that he is unable to secure private counsel.
The undersigned recommends that James Burck's Motion for Summary Judgment for Failure to Exhaust Administrative Remedies (ECF No. 22) and Ronald Woodall's affirmative defense of failure to exhaust administrative remedies (ECF No. 21, at 2) be GRANTED, that Plaintiff's claims 1-10 be DISMISSED without prejudice, and that Plaintiff's claims 11-13 be DISMISSED with prejudice. Additionally, the undersigned recommends that Plaintiff's request for appointment of counsel in "Plaintiff Response in Opposition to Docket 57 58 60 61 for Failure to Exhaust Administrative Remedies" (ECF No. 62) be DENIED.
Pursuant to Local Uniform Civil Rule 72(a)(3),
L.U.Civ.R. 72(a)(3); see 28 U.S.C. § 636(b)(1).
An objecting party must specifically identify the findings, conclusions, and recommendations to which he objects. The District Judge need not consider frivolous, conclusive, or general objections. A party who fails to file written objections to the proposed findings, conclusions, and recommendations shall be barred except upon grounds of plain error, from attacking on appeal any proposed factual findings or legal conclusions adopted by the Court to which he did not object. Douglas v. United Servs. Automobile Assoc., 79 F.3d 1415, 1428-29 (5th Cir. 1996).
