Fisher v. Relhms

Opinion

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA BRANDON FISHER (#522379), ET AL. CIVIL ACTION NO.

VERSUS 21-45-SDD-EWD

LUKE RHEAMS, ET AL.

ORDER Before the Court is a document titled, “Motion to Suppliment [sic] Record of Suit Do [sic] to Ongoing Issues and Matters Relevant” (the “Motion”),1 filed by Jonathan Michael Rosalie (“Rosalie”), who is representing himself and is incarcerated at the Louisiana State Penitentiary in Angola, Louisiana. The Motion is construed as a request for leave to amend the Complaint.2 Rosalie seeks to add claims related to an incident that occurred on June 3, 2021 during which Rosalie says he voiced concerns for his safety which were intentionally ignored by prison officials. The Motion also complains of “excessive punishment,” including being made to stand in the shower for approximately nine hours without anything to sit on or restroom breaks, and deliberate medical indifference to numbness in his hands and severe back pain. Rosalie suggests these are efforts by prison officials to prevent him from continuing with this lawsuit. The same date this Motion was received, a Report and Recommendation was issued in this case recommending dismissal of Rosalie’s claims as legally frivolous because he failed to exhaust administrative remedies as required by 42 U.S.C. § 1997(e).3 As Rosalie represented in his Complaint that he did not follow the established grievance procedure,4 and as there is no additional

1 R. Doc. 31. 2 R. Doc. 21 is the operative Complaint in this action. See King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994) (an amended complaint supersedes the original complaint and renders it of no legal effect unless the amended complaint specifically refers to and adopts or incorporates the earlier pleading). This action previously included numerous other plaintiffs, but all except Rosalie have been dismissed. R. Docs. 18 & 26. 3 R. Doc. 30. 4 R. Doc. 21, p. 4. information in the Motion to suggest that Rosalie has exhausted administrative remedies with regard to any new claims, the Motion will be denied as futile.5 IT IS ORDERED that the “Motion to Suppliment [sic] Record of Suit Do [sic] to Ongoing Issues and Matters Relevant,”6 filed by Jonathan Michael Rosalie (“Rosalie”), is DENIED as

amendment to add these additional claims would be futile in light of Rosalie’s failure to exhaust administrative remedies. The denial is without prejudice to Rosalie reurging these claims if the Report and Recommendation,7 which recommends dismissal of Rosalie’s claims as legally frivolous for failure to exhaust, is not adopted. Signed in Baton Rouge, Louisiana, on June 9, 2021. S ERIN WILDER-DOOMES UNITED STATES MAGISTRATE JUDGE

5 See Montana v. Burkett, 12 F.3d 1098 (5th Cir. 1993), citing Davis v. Louisiana State Univ., 876 F.2d 412-413-14 (5th Cir. 1989) ((“[T]he district court may properly deny a motion to amend if amendment would be futile.”). As to the June 3, 2021 incident, Rosalie could not have exhausted administrative remedies as the Motion is dated June 7, 2021—just four days later. Further, as explained in the Report and Recommendation, even if Rosalie believes the events discussed in the Motion constitute an emergency, he is not relieved of his obligation to follow the prison grievance procedure, which has specific provisions for filing emergency grievances. See R. Doc. 30, p. 6. 6 R. Doc. 31. 7 R. Doc. 30.