Smith v. Caldwell Parish Detention Center

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

MONROE DIVISION

KENNETH JEFFERY SMITH CIV. ACTION NO. 3:23-00198 SEC P

VERSUS JUDGE TERRY A. DOUGHTY

CALDWELL PARISH MAG. JUDGE KAYLA D. MCCLUSKY

DETENTION CENTER, ET AL.

REPORT AND RECOMMENDATION

Before the undersigned magistrate judge, on reference from the District Court, are two

motions: 1) a motion for summary judgment filed by Defendants, Lt. Davis, Sgt. Hollowell, Sgt.

Smith, and Sgt. Wyles [doc. # 71]; and 2) a document titled, “Facts of the Material Subpoena,”

docketed as a motion to subpoena video [doc. # 82]. For reasons detailed below, IT IS

RECOMMENDED that Defendants’ motion for summary judgment be GRANTED and that

Plaintiff Kenneth Smith’s claims against said Defendants and the Unknown Officers be

DISMISSED WITHOUT PREJUDICE. IT IS FURTHER ORDERED that the motion to

subpoena video is DENIED.

Procedural History

On February 14, 2023, Kenneth Jeffery Smith (“Smith”), an inmate, who, during the

relevant period, was housed at the Caldwell Correctional Center (“CCC”),1 filed the instant pro

se civil rights complaint under 42 U.S.C. § 1983 asserting claims for excessive force and failure

to provide medical treatment against Defendants the CCC, Lt. Davis, Sgt. Hollowell, Sgt. Smith,

1 Smith incorrectly referred to the CCC in his pleadings as the Caldwell Parish Detention Center.

To avoid confusion, the undersigned will consistently refer to the entity as CCC. At the time he

commenced this action, Smith had been transferred to the Bossier Medium Security Facility.

Sgt. Wyles, Warden Kevin Wise, Deputy Warden Callendar, and other unidentified officers.

Over the course of this litigation, Smith amended his complaint on several occasions, the most

recent filed on April 19, 2024. (Amend. Compl. [doc. # 54]).

Smith alleged that, on April 10, 2022, he was subjected to various acts of unwarranted

violence and ensuing medical neglect by officers at the CCC. He seeks to recover $150,000 in

punitive and compensatory damages, the dismissal of all charges against him, and his immediate

release from custody. He also wants all of the defendant-officers fired.

On June 9, 2023, the undersigned conducted an initial review of Smith’s pleadings and

recommended dismissal of various parties and claims, save for the following:

(1) that Officer Smith utilized excessive force, spraying Plaintiff with mace twice;

(2) that Defendants Hollowell, Smith, and/or Wyles used excessive force,

slamming Plaintiff to the ground; (3) that Sergeant Hollowell used excessive force,

shoving Plaintiff’s head into concrete; (4) that Hollowell, Smith, and Wyles beat

Plaintiff while his hands were behind his back; and (5) that Lieutenant Davis,

Officer Smith, Officer Wyles, Sergeant Hollowell, and unidentified officers failed

to provide medical treatment for injuries Plaintiff suffered after being slammed on

the ground and beaten.

(Report and Recommendation (“R&R”) [doc. # 12]). On June 28, 2023, the District Court

entered judgment, adopting the R&R, and dismissing the parties and claims as recommended.

(Judgment [doc. # 15]).

Over the next several months, the Court took necessary steps to perfect service on the

remaining named Defendants, Lt. Davis, Sgt. Hollowell, Sgt. Smith, and Sgt. Wyles

(collectively, “Defendants” or “named Defendants”). See doc. #s 16-28. Once issue was joined,

the Court entered a scheduling order on October 31, 2023, that set forth various deadlines for the

amendment of pleadings, completion of discovery, and the filing of dispositive motions. (Sched.

Order [doc. # 29]).

2

On February 9, 2024, the Clerk of Court dismissed the case because Smith failed to

apprise the Court of a change to his mailing address. (Order of Dismissal [doc. # 37]). On

March 6, 2024, however, the Court reopened the case pursuant to a February 27, 2024 letter from

Smith, which the Court construed as a motion to reinstate the action. See doc. #s 39-40. On

March 8, 2024, the Court issued another scheduling order that included new deadlines for

discovery completion and the filing of dispositive motions. (Sched. Order [doc. # 41]).

On July 30, 2024, pursuant to a motion filed by Smith, the Court extended the discovery

completion and dispositive motion deadlines to August 30 and September 30, 2024, respectively.

(E-Order [doc. # 67]). In previous scheduling orders entered in this case, the Court cautioned

that, “[t]o allow time for responses, written discovery must be served more than thirty (30) days”

before the discovery completion deadline. See, e.g., doc. # 41

On September 30, 2024, Defendants filed the instant motion for summary judgment

seeking dismissal of Smith’s complaint for failure to exhaust available administrative remedies

prior to filing suit. Specifically, Defendants argued that Smith not only filed an untimely initial

grievance, but also failed to complete the third step of the administrative process. Smith did not

file an opposition to the motion for summary judgment. See Notice of Motion Setting [doc. #

72].

On November 21, 2024, the undersigned recommended that Defendants’ unopposed

motion for summary judgment be granted and that Smith’s claims be dismissed for failure to

complete all three steps of the available grievance procedure. (R&R [doc. # 73]).2

2 Via the same instrument, the undersigned denied Smith’s pending motion for court assistance

[doc. # 74]. Id.

3

On December 9, 2024, Smith filed a motion for leave of court to file an otherwise out-of-

time opposition to Defendants’ motion for summary judgment. [doc. # 75]. Smith attached a

proposed opposition brief that both explained his initial failure to initiate the grievance process

after the subject incident, and included evidence that he, in fact, had exhausted the final step of

the grievance process. Id.

On December 10, 2024, the undersigned granted Smith’s motion and ordered his

opposition brief filed into the record. (Order [doc. # 76]; Pl. Opp. Brief [doc. # 77). In order to

give effect and proper consideration to Smith’s opposition brief and supporting evidence, the

undersigned vacated, in part, the November 21, 2024 R&R, solely with respect to the

recommended disposition of Defendants’ motion for summary judgment. (Order [doc. # 76]).

The undersigned further granted Defendants leave to file a reply brief in support of their motion

for summary judgment by January 6, 2025. Id.

On January 6, 2025, Defendants filed a reply brief in support of their motion for

summary judgment wherein they conceded that, by submitting a copy of a July 28, 2022 letter

from the Caldwell Parish Chief Deputy, Smith had created a genuine dispute of material fact as

to whether he had completed the third step of the grievance process. (Defs. Reply [doc. # 79]).

However, Defendants re-urged their contention that Smith had not timely initiated the grievance

process. To support their argument, they applied for and obtained leave of Court to supplement

their summary judgment motion with additional evidence.3 See doc. #s 78, 80-81. [doc. # 78].

On March 3, 2025, Smith filed a document titled, “Facts of the Material Subpoena,” in

3 Defense counsel represented that he spoke with Smith by telephone, who indicated that he did

not consent to the motion. Id.

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which he requested,

1) a copy of the Richland Parish mail log showing that mail was sent to the CPDC, the

Caldwell Parish Sheriff, the Department of Corrections, etc.;

2) medical records from E.A. Conway showing the extent of his injuries; and

3) video footage from April 10, 2022, showing that he was a victim of excessive force.

[doc. # 82].

However, Smith never filed a response to Defendants’ supplemental evidence.

The matter is ripe.

Motion for Summary Judgment

I. Summary Judgment Principles

Summary judgment is appropriate when the evidence before the court shows “that there

is no genuine dispute as to any material fact and that the moving party is entitled to judgment as

a matter of law.” FED. R. CIV. P. 56(b). A fact is “material” if proof of its existence or

nonexistence would affect the outcome of the lawsuit under applicable law in the case. Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is “genuine” if

the evidence is such that a reasonable fact finder could render a verdict for the nonmoving party.

Id.

“[A] party seeking summary judgment always bears the initial responsibility of informing

the district court of the basis for its motion, and identifying those portions of ‘the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if

any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Anderson, 477 U.S. at 247). “The moving

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party may meet its burden to demonstrate the absence of a genuine issue of material fact by

pointing out that the record contains no support for the non-moving party’s claim.” Stahl v.

Novartis Pharm. Corp., 283 F.3d 254, 263 (5th Cir. 2002). Thereafter, if the non-movant is

unable to identify anything in the record to support his claim, summary judgment is appropriate.

Id. “No genuine issue of material fact exists if the summary-judgment evidence is such that no

reasonable juror could find in favor of the nonmovant.” Jenkins v. Methodist Hospitals of

Dallas, Inc., 478 F.3d 255, 260 (5th Cir. 2007) (citation omitted).

In evaluating the evidence tendered by the parties, the court must accept the evidence of

the non-movant as credible and draw all justifiable inferences in his favor. Anderson, 477 U.S.

at 255. While courts will “resolve factual controversies in favor of the non-moving party,” an

actual controversy exists only “when both parties have submitted evidence of contradictory

facts.” Little v. Liquid Air. Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). There can be no genuine

dispute as to a material fact when a party 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., 477 U.S. at 322-323. This is true “since a complete

failure of proof concerning an essential element of the nonmoving party’s case necessarily

renders all other facts immaterial.” Id. at 323.

When a movant bears the burden of proof on an issue, he must establish “beyond

peradventure4 all of the essential elements of the claim . . . to warrant judgment in his favor.”

Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986). In other words, the movant must

affirmatively establish his right to prevail as a matter of law. Universal Sav. Ass’n v. McConnell,

4 I.e., beyond doubt.

6

14 F.3d 52 (5th Cir. 1993).

II. Administrative Exhaustion

a) Law

Pursuant to 42 U.S.C. § 1997e, as amended by the Prison Litigation Reform Act

(“PLRA”), “[n]o 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).

Exhaustion is mandatory and is required even where the relief sought cannot be granted by the

administrative process. Woodford v. Ngo, 548 U.S. 81, 85 (2006) (citations omitted). All

“available” remedies must be exhausted, whether speedy and effective, or not. Porter v. Nussle,

534 U.S. 516, 524 (2002). “Proper exhaustion requires that the prisoner not only pursue all

available avenues of relief but also comply with all administrative deadlines and procedural

rules.” Johnson v. Kukua, 342 Fed. App’x. 933, 934 (5th Cir. 2009) (citing Woodford, 548 U.S.

at 89-93). An “untimely or otherwise procedurally defective administrative grievance or

appeal,” does not satisfy the exhaustion requirement. Id.

Exhaustion is an affirmative defense; thus, the burden is on defendant to establish that

plaintiff failed to exhaust available administrative remedies. Dillon v. Rogers, 596 F.3d 260, 266

(5th Cir. 2010). If the court considers evidence beyond the pleadings to resolve the exhaustion

issue, then the nonmoving party is entitled to the protections of Rule 56. Id.

“[T]he PLRA’s exhaustion requirement applies to all inmate suits about prison life,

whether they involve general circumstances or particular episodes, and whether they allege

excessive force or some other wrong.” Porter, 534 U.S. at 532 (citation omitted). An inmate is

required to “exhaust his remedies, irrespective of the form of relief sought, injunctive or

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monetary.” Richbourg v. Horton, 2008 WL 5068680 (5th Cir. Dec. 2, 2008) (unpubl.) (citation

omitted). In addition, exhaustion applies to claims brought against defendants in their official

and/or individual capacities. See, e.g., Williams v. Henagan, 595 F.3d 610, 618 (5th Cir. 2010);

Hines v. Texas, 76 Fed. App’x. 564 (5th Cir. 2003).

If required by the terms of the prison’s grievance procedures, a prisoner must exhaust all

steps of a grievance process even if the prison fails to respond to his grievances at an earlier step

in the process. See Wilson v. Epps, 776 F.3d 296, 302 (5th Cir. 2015) (plaintiff failed to proceed

through all three steps of the grievance process; instead, he completed only the first step, and

then filed suit when those grievances were not responded to in a timely fashion); Cowart v.

Erwin, 837 F.3d 444, 452 (5th Cir. 2016) (because grievance policy did not require plaintiff to

object when he failed to receive a response to his initial grievance, he was not required to

proceed to the additional steps of the process). Moreover, to the extent that language on the form

or policy regarding subsequent step review is phrased in discretionary rather than mandatory

terms, the prisoner still must exhaust all “available” steps. Ates v. St. Tammany Parish, Civ.

Action No. 13-5732, 2014 WL 1457777 (E.D. La. Apr. 15, 2014) (and cases cited therein); see

also Hicks v. Lingle, 370 F. App’x. 497, 499 (5th Cir. 2010) (inmate required to proceed to

second step even though procedure said only that inmate “may appeal” if dissatisfied with first

step response); Wilson, 776 F.3d at 300 (finding that plaintiff failed to exhaust subsequent steps

of grievance process even though procedure was phrased permissively as, “may request,” and

“may appeal”). In short, the courts “will not read futility or other exceptions into statutory

exhaustion requirements where Congress has provided otherwise.” Booth v. Churner, 532 U.S.

731, 741 n.6 (2001).

8

In 2016, the Supreme Court explained that, “[u]nder § 1997e(a), the exhaustion

requirement hinges on the ‘availab[ility]’ of administrative remedies: An inmate, that is, must

exhaust available remedies, but need not exhaust unavailable ones.” Ross v. Blake, 578 U.S.

632, 642 (2016). The Court then looked to dictionary definitions of “available,” to conclude that

an inmate is “required to exhaust those, but only those, grievance procedures that are ‘capable of

use’ to obtain ‘some relief for the action complained of.’” Id. (citations omitted).5

The Court recognized three circumstances where an inmate’s duty to exhaust

administrative remedies may be excused or deemed “unavailable.” Id. First, an administrative

procedure is unavailable where officers consistently are unable or unwilling to provide relief to

aggrieved inmates. Ross, 578 U.S. at 643 (citation omitted).6 Second, exhaustion is not required

where an administrative scheme is so opaque that it is unknowable in the sense that no ordinary

prisoner can discern its requirements. Ross, 578 U.S. at 644. Finally, the administrative process

5 Whether administrative remedies are “available” is a question of law, but the resolution of that

question may turn on questions of fact. Leggett v. Lafayette, 608 Fed. App’x. 187, 190 (5th Cir.

2015).

6 The Supreme Court provided some examples,

[s]uppose, for example, that a prison handbook directs inmates to submit their

grievances to a particular administrative office, but in practice that office

disclaims the capacity to consider those petitions. The procedure is not then

“capable of use” for the pertinent purpose. In Booth’s words: “[S]ome redress for

a wrong is presupposed by the statute’s requirement” of an “available” remedy;

“where the relevant administrative procedure lacks authority to provide any

relief,” the inmate has “nothing to exhaust.” So too if administrative officials have

apparent authority, but decline ever to exercise it. Once again: “[T]he modifier

‘available’ requires the possibility of some relief.” When the facts on the ground

demonstrate that no such potential exists, the inmate has no obligation to exhaust

the remedy.

Ross, 578 U.S. at 643 (internal citations omitted).

9

is rendered unavailable when “prison administrators thwart inmates from taking advantage of a

grievance process through machination, misrepresentation, or intimidation.” Id.

The Fifth Circuit consistently has held that an inmate’s ignorance of a prison’s grievance

procedures does not excuse his noncompliance. Aguirre v. Dyer, 233 Fed. App’x. 365 (5th Cir.

2007) (citation omitted); Simkins v. Bridges, 350 Fed. App’x. 952, 953-954 (5th Cir. 2009)

(citation omitted); Plaisance v. Cain, 374 Fed. App’x. 560, 561 (5th Cir. 2010) (citation omitted).

Nonetheless, inmates should have “avenues for discovering the procedural rules governing their

grievances.” Dillon, 596 F.3d at 268 (citations omitted). When an inmate has no means of

verifying the administrative grievance process, then misleading information by prison officials

may make remedies unavailable. Id. Nonetheless, “[i]f impediments to filing grievances render

remedies unavailable at one facility, remedies may become available again once a prisoner has

been transferred, unless there are other problems at the new facility.” Dillon, 596 F.3d at 267-

268 (citing Bryant v. Rich, 530 F.3d 1368, 1379 (11th Cir. 2008)).

b) The CCC had an Available Administrative Remedy Procedure

Defendants adduced competent summary judgment evidence to show that the CCC had a

three-step Administrative Remedy Procedure (“ARP”) that was in effect during the relevant

period. (Declaration of CCC Warden Kevin Wyles and CCC Electronic Inmate Handbook; Defs.

MSJ, Exhs. A & A-1). The ARP applies to any complaint regarding inmate life, including, inter

alia, a complaint against a CCC employee, a rule, a policy, or condition of the compound. (CCC

Elec. Inmate Handbook; Defs. Exh. A-1).

To initiate the ARP at the CCC, an inmate must file a grievance within 30 days of the

date of the incident that forms the basis for the complaint. Id. The grievance may be filed on the

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form provided by the CCC or on any blank sheet of paper that is labeled, “Inmate Grievance.”

Id. The grievance must be turned into the deputy warden’s office, who will respond to the

grievance within ten days of receipt. Id.

If an inmate is not satisfied with the deputy warden’s response to the first step grievance,

then, within five days, the inmate shall request a review by the warden, who will provide a

response within ten days. Id.

Finally, if the inmate is dissatisfied with the response from the warden, then, within five

days, he is required to request review from the “Chief Deputy.” Id.

The ARP also includes deadlines for inmates to request further review if the inmate does

not receive a timely response from the deputy warden or warden. Id. Specifically, if the inmate

does not receive a response from the warden within ten days, then he shall request review from

the “Chief Deputy” within five days. Id.

In his brief, Smith argues that, pursuant to Louisiana Revised Statute § 15:1172 and/or

the administrative remedy procedure set forth by the Louisiana Department of Public Safety and

Corrections (“LDPSC”) in 22 La. Admin. Code Pt. I, 325, he had 90 days (rather than 30) after

the April 10, 2022 incident within which to initiate the grievance process. (Pl. Opp. Memo., pgs.

3-4).

However, the Fifth Circuit has held that a prisoner must comply with the ARP “provided

to him by the jail in which he was being held,” not the ARP of other institutions. Philips v.

Green, 814 F. App’x 852, 855 (5th Cir. 2020) (finding prisoner filing grievance was bound by

requirements of the ARP used by the institution at which he was held, not the Louisiana

Department of Corrections ARP); see also Bentley v. Kupp, Civ. Action No. 23-00771, 2024 WL

11

802213, at *3 (W.D. La. Feb. 6, 2024), R&R adopted, 2024 WL 794523 (W.D. La. Feb. 26,

2024). Here, Smith was held at the CCC at the time of the alleged incident, and, consequently,

was bound to follow the ARP available at the CCC, not that of the LDPSC. Bentley, 2024 WL

802213, at *3.

Smith also cannot argue, in good faith, that he was unaware of the ARP at the CCC.

First, Defendants adduced a copy of Smith’s electronic kiosk history at the CCC, which

purportedly shows Smith’s acknowledging receipt of the CCC inmate handbook upon his arrival

at the facility on February 5, 2022. (Warden Wyles Decl., MSJ Exh. A; Resident Historical

Read/Watch for Smith, MSJ Exh. A2. ). Second, Smith adduced evidence showing that he

proceeded through the three steps of the CCC ARP, which he would not have done unless he was

acquainted with the CCC ARP. See Pl. Opp. Brief, pgs. 5-8.

c) Smith Failed to Timely Exhaust Available Administrative Remedies Prior to

Filing Suit

In support of their motion for summary judgment, Defendants adduced evidence to show

that, in a grievance dated July 5, 2022, Smith complained about the April 10, 2022 excessive

force and denial of medical care incidents that form the basis for this suit. See Warden Wyles

Decl., MSJ Exh. A; Req. for ARP; MSJ Exh. A3. In his opposition brief, Smith agreed that he

submitted a grievance to the CCC on July 5, 2022. (Pl. Opp. Brief, pg. 4).

In an undated response, Deputy Warden Callender rejected Smith’s grievance because it

was dated July 5, 2022, and not received by the facility until July 18, 2022, i.e., considerably past

the deadline set forth in the CCC’s ARP requiring grievances to be filed within 30 days after the

complained of incident(s). (Req. for ARP, MSJ Exh. A3).

Smith filed his second-step appeal with Warden Wyles on July 20, 2022. (Warden Wyles

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Decl., MSJ Exh. A). In an undated response, Warden Wyles stated that he concurred with

Deputy Warden Callender’s rejection of Smith’s grievance because Smith had not followed the

grievance procedure. (Warden’s Response, MSJ Exh. A4). Warden Wyles added that, if Smith

was not satisfied with his decision, then he “shall appeal to the Chief Deputy within 5 days.” Id.

Warden Wyles averred that there were no records indicating that Smith ever filed a third-

step request for review to the Chief Deputy. (Warden Wyles Decl.; MSJ Exh. A). However,

Smith produced a copy of a July 28, 2022 letter addressed to him from Chief Deputy Jack

McKeithen, denying his grievance because he had waited more than 30 days after the incident to

file the grievance. (July 28, 2022 letter from J. McKeithen to K. Smith; Pl. Opp. Brief, pg. 8).

In his response to the summary judgment motion, Smith asserts that, on April 12, 2022,

he was transferred to the Franklin Parish Detention Center (“FPDC”) and placed in a one-man

cell with no writing materials until July 3, 2022, when he was transferred to Richland Parish

Detention Cetner. (Pl. Opp. Brief, pg. 5). Thus, he concludes that it had been impossible for

him to meet the CCC ARP’s 30-day deadline for filing a grievance. Id. In other words, he

argues that the administrative remedy was unavailable to him during his time at the FPDC. See,

e.g., Aceves v. Swanson, 75 Fed. App’x. 295, 296 (5th Cir. 2003) (stating that remedies are not

available where institutional authorities refuse to provide a prisoner with the forms needed to

exhaust administrative remedies).

However, in response to Smith’s representations, Defendants submitted a declaration

from David Rigdon, the Chief Deputy of the Franklin Parish Sheriff’s Office, who confirmed

that Smith arrived at the FPDC on April 12, 2022, but only remained there for 52 days, until he

was transferred out on June 3, 2022. (Decl. of David Rigdon and Time Served, Exh. B1 [doc. #

13

81 & 81-1]). Rigdon further attested that, while housed at the FPDC, Smith not only had access

to writing materials, envelopes, and stamps, he even purchased them. Id. Specifically, Rigdon

attached Smith’s commissary receipts showing that Smith bought three stamps and one envelope

on April 18, 2022, five stamps and one legal pad on April 28, 2022, plus four stamps and one

package of pens on May 2, 2022. Id. and Exh. B2 [doc. #s 81 & 81-2].

In short, Smith’s bare representation that he was unable to submit a grievance while

housed at the FPDC because he lacked writing materials is disproved by Defendants’ detailed

and specific evidence to the contrary, for which Smith provided no response. Likewise,

Defendants also adduced evidence showing that Smith was transferred out of FPDC one month

earlier than Smith claimed. Therefore, any supposed impediment to Smith’s filing a grievance

on account of his incarceration at the FPDC was removed by his transfer out of that facility,

which occurred more than 30 days before Smith submitted the grievance. Again, Smith did not

address this new and material evidence.

The Court recognizes that, in the wake of the amendment to Rule 56, it now has the

latitude to credit unsworn statements at the summary judgment stage.7 Here, however, Smith did

7 See Patel v. Texas Tech Univ., 941 F.3d 743, 746 (5th Cir. 2019) (quotations omitted) (“New

Rule 56(c), added in 2010, permits a party to support or dispute summary judgment through

unsworn declarations, provided their contents can be presented in admissible form at trial.

Although the substance or content of the evidence submitted to support or dispute a fact on

summary judgment must be admissible . . . ,the material may be presented in a form that would

not, in itself, be admissible at trial.”); Lozano v. Davis, 774 F. App’x 263, 264 (5th Cir. 2019)

(reasoning that considering whether a plaintiff’s unsworn assertions “could have been presented

in an admissible form . . . is particularly relevant where a pro se plaintiff’s allegations form his

entire response in opposition to summary judgment.”); Lee v. Offshore Logistical & Transp.,

L.L.C., 859 F.3d 353, 355 (5th Cir. 2017), as revised (July 5, 2017) (“The district court

dismissed Captain Jamison’s report solely because it was not sworn without considering Lee’s

argument that Captain Jamison would testify to those opinions at trial and without determining

whether such opinions, as testified to at trial, would be admissible.”); Maurer v. Indep. Town,

14

not respond to Defendants’ supplemental evidence at all, and, regardless, his prior statements

remain conclusory, without any context.8 Accordingly, they are insufficient to defeat summary

judgment. See Nelson v. Sollie, No. 22-60461, 2023 WL 3863345, at *1–2 (5th Cir. June 7,

2023) (unpubl.) (citation omitted) (plaintiff’s claim that he “exhausted his remedies by filing a

grievance to which he never received a response” is “wholly conclusional and is insufficient to

survive summary judgment); Ryan v. Phillips, 558 Fed. App’x. 477, 478 (5th Cir. 2014) (citation

omitted) (plaintiff’s “conclusory and unsubstantiated assertion that he initiated the applicable

grievance procedure is insufficient to refute the lack of evidence that he filed any informal or

formal grievances”); Phillips, 814 Fed. App’x. at 856 (unsubstantiated assertions do not show the

requisite genuine dispute of material fact).

Upon consideration of the existing record, the undersigned finds that no reasonable trier

of fact9 could find that Smith timely filed his initial grievance within 30 days after the subject

870 F.3d 380, 384 (5th Cir. 2017) (“This flexibility allows the court to consider the evidence that

would likely be admitted at trial—as summary judgment is trying to determine if the evidence

admitted at trial would allow a jury to find in favor of the nonmovant—without imposing on

parties the time and expense it takes to authenticate everything in the record.”).

8 In fact, in his complaint, Smith inconsistently stated, under penalty of perjury, that he filed a

grievance while at the CCC. (Compl., pg. 3 [doc. # 1]).

9 In this case, no party has made a jury demand. “When deciding a motion for summary

judgment prior to a bench trial, the district court has the limited discretion to decide that the same

evidence, presented to him or her as a trier of fact in a plenary trial, could not possibly lead to a

different result.” Jones v. United States, 936 F.3d 318, 321 (5th Cir.2019) (quoting Johnson v.

Diversicare Afton Oaks, LLC, 597 F.3d 673, 676 (5th Cir. 2010)). In this non-jury, pro se

prisoner suit, the undersigned magistrate judge ordinarily is the trier of fact at a hearing held

pursuant to Flowers v. Phelps, 956 F.2d 488 (5th Cir.), modified on other grounds, 964 F.2d 400

(5th Cir.1992), which “amounts to a bench trial replete with credibility determinations and

findings of fact.” McAfee v. Martin, 63 F.3d 436, 437 (5th Cir. 1995). Further, on review, the

district judge will have the opportunity to consider the same evidence.

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incident, as required by the CCC’s ARP. See Norwegian Bulk Transport A/S v. International

Marine Terminals Partnership, 520 F.3d 409, 411 (5th Cir. 2008) (no reasonable trier of fact

could find for the nonmoving party). Moreover, Smith provided no cognizable evidence to

excuse his non-compliance with the CCC’s grievance procedure, or to show that the procedure

was “unavailable.” Therefore, he did not properly exhaust his claims before filing the instant

suit against the named Defendants and the Unknown Officers10 for the claims asserted herein.

Phillips, 814 Fed. App’x. at 855. Dismissal is required. Id.

Facts of the Material Subpoena

In light of the undersigned’s recommended disposition of Defendants’ motion for

summary judgment for failure to exhaust administrative remedies, Smith’s pending request to

subpoena additional evidence is fatally compromised.

First, Smith’s request to subpoena the Richland Parish mail log to prove that he sent mail

to the CCC is not relevant. It is not contested that Smith completed all of the steps of the CCC’s

ARP. Second, the request to subpoena medical records and video footage is not relevant to the

exhaustion issue raised by Defendants’ motion for summary judgment.

Conclusion

For the above-stated reasons,

10 Smith’s claims against the Unknown Officers arise out of the same incidents that form the

basis for his claims against the named Defendants. Therefore, Smith’s claims against the

Unknown Officers likewise are subject to dismissal for failure to exhaust administrative

remedies. See Lewis v. Lynn, 236 F.3d 766, 768, 236 F.3d 766 (5th Cir. 2001) (where defending

party establishes that plaintiff has no cause of action, the defense generally inures to the benefit

of a non-appearing co-defendant). Furthermore, the instant report and recommendation provides

adequate notice to the parties. McCoy v. Wade, 2007 WL 1098738, *1 (W.D. La. Mar. 12,

2007) (citing Magouirk v. Phillips, 144 F.3d 348, 359 (5th Cir. 1998)).

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IT IS RECOMMENDED that the motion for summary judgment [doc. # 71] filed by

remaining Defendants, Lt. Davis, Sgt. Hollowell, Sgt. Smith, and Sgt. Wyles John Brown, be

GRANTED, and that Plaintiff Kenneth Smith’s claims against said Defendants, plus the

Unknown Officers, be DISMISSED WITHOUT PREJUDICE.11

IT IS FURTHER ORDERED that Plaintiff Kenneth Smith’s “Facts of the Material

Subpoena,” docketed as a motion to subpoena video [doc. # 82], is hereby DENIED.12

Under the provisions of 28 U.S.C. § 636(b)(1)(C) and FRCP Rule 72(b), the parties have

fourteen (14) days from service of this Report and Recommendation to file specific, written

objections with the Clerk of Court. A party may respond to another party=s objections within

fourteen (14) days after being served with a copy thereof. A courtesy copy of any objection or

response or request for extension of time shall be furnished to the District Judge at the time of

filing. Timely objections will be considered by the District Judge before he makes a final ruling.

A PARTY’S FAILURE TO FILE WRITTEN OBJECTIONS TO THE PROPOSED

FINDINGS, CONCLUSIONS AND RECOMMENDATIONS CONTAINED IN THIS

REPORT WITHIN FOURTEEN (14) DAYS FROM THE DATE OF ITS SERVICE

SHALL BAR AN AGGRIEVED PARTY, EXCEPT ON GROUNDS OF PLAIN ERROR,

FROM ATTACKING ON APPEAL THE UNOBJECTED-TO PROPOSED FACTUAL

FINDINGS AND LEGAL CONCLUSIONS ACCEPTED BY THE DISTRICT JUDGE.

11 Defendants seek dismissal without prejudice. See Defs. Reply Brief, pg. 4.

12 As this motion is not excepted in 28 U.S.C. § 636(b)(1)(A), nor dispositive of any claim on the

merits within the meaning of Rule 72 of the Federal Rules of Civil Procedure, this ruling is

issued under the authority thereof, and in accordance with the standing order of this court. Any

objection/appeal must be made to the district judge in accordance with Rule 72(a) of the Federal

Rules of Civil Procedure.

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In Chambers, at Monroe, Louisiana, on this 24 day of April, 2025.

Kal. Wp McClusky

KAYL:) DYE MC&LUSKY

UNITED STATES MAGISTRATE JUDGE

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