Jimmy Powell v. Timothy Morris

693 F. App'x 378

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 20, 2017
• Docket: 16-60155 Summary Calendar
• Status: Unpublished

Opinion

PER CURIAM: *

Jimmy Powell, Mississippi prisoner # 48033, filed a pro se 42 U.S.C. § 1983 complaint against officials at the Mississippi Department of Corrections (MDOC), alleging that they violated his First and Eighth Amendments rights. He appeals the magistrate judge’s grant of the defendants’ motions for summary judgment and the concomitant dismissal of his suit.

We review a grant of summary judgment de novo, using the same standard as that employed by the district court. Carnaby v. City of Houston, 636 F.3d 183, 187 (5th Cir. 2011). Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). If the moving party establishes this, the burden shifts to the nonmovant to set forth specific evidence to support his claims. Duffie v. United States, 600 F.3d 362, 371 (5th Cir. 2010).

“No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. §, 1997e(a); Dillon v. Rogers, 596 F.3d 260, 268 (5th Cir. 2010). The defendants’ summary judgment evidence shows that Powell failed to exhaust the MDOC’s two-step Administrative Remedy Program (ARP) with respect to his complaint that he was not receiving a Halal diet, as he did not complete the second step of the ARP. See Wilson v. Epps, 776 F.3d 296, 300 n.2 (5th Cir. 2015); MDOC Inmate Handbook, ch. VIII. Moreover, Powell has not met his burden of presenting evidence that shows that he exhausted the ARP. See Duffie, 600 F.3d at 371; Gonzalez v. Seal, 702 F.3d 785, 788 (5th Cir. 2012).

AFFIRMED.

* Pursuant to 5th Cir. R, 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R, 47,5.4.