# Smith v. Caldwell Parish Detention Center

> District Court, W.D. Louisiana · April 24, 2025

URL: https://www.frixlaw.com/law-library/cases/11059061

## Case

- **Court:** District Court, W.D. Louisiana
- **Decided:** April 24, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11059061

## How later opinions describe it (automated extraction)

- finding that plaintiff failed to exhaust subsequent steps of grievance process even though procedure was phrased permissively as, “may request,” and “may appeal”

## Opinion text

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.
4
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

5
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
7
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

10
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
12
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.

15
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)).

16
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.
17
In Chambers, at Monroe, Louisiana, on this 24 day of April, 2025.
Kal. Wp McClusky
KAYL:) DYE MC&LUSKY
UNITED STATES MAGISTRATE JUDGE

18

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11059061. Public record. Not legal advice.