United States District Court, E.D. Texas, Sherman Division
BARNEY D. EBEY, #2155147 Plaintiff
HOPKINS COUNTY JAIL, Defendant
MEMORANDUM OPINION AND ORDER
L. MAZZANT UNITED STATES DISTRICT JUDGE.
se Plaintiff Barney D. Ebey filed the above-styled and
numbered lawsuit pursuant to 42 U.S.C. § 1983. In
response, Defendants Hopkins County Jail and Lewis Tatum
filed a motion to dismiss (Dkt. #57), noting that Plaintiff
failed to exhaust administrative remedies. For the reasons
stated below, and after due consideration, the Court will
grant Defendants’ motion to dismiss.
filed a civil rights complaint pursuant to § 1983
against Hopkins County Jail, Lewis Tatum, George Croney,
Dennis Dean, Joe Scott, Damon Cole, Jordan Edwards, and
Sabrina Richardson. After Plaintiff provided the full names
of each Defendant and address, as ordered by the court (Dkt.
#38), summons were issued. Defendants Hopkins County Jail and
Lewis Tatum were effectively served. Defendants Hopkins
County Jail and Lewis Tatum filed an advisory to the Court
(Dkt. #59), however, noting that service of process was sent
to the Hopkins County Sheriff’s Office for all
defendants. The advisory explained that Lacey Calhoun, an
employee at Hopkins County Sheriff’s Office who is not
a party to the case, erroneously signed the return receipt
acknowledgment for the envelopes addressed to the remaining
defendants. The advisory further noted that none of the
remaining defendants were employed by Hopkins County
Sheriff’s Office or Jail.
Joe Scott had been an employee previously, the advisory noted
that his last day of employment was “more than two
years before Plaintiff’s escape from the Hopkins County
Jail.” (Dkt. #59, p. 2). Attached to the notice was a
“Separation of Licensee (F-5) form showing that Joe
Scott separated from employment at Hopkins County
Sheriff’s Office on November 26, 2014 – a date
prior to Plaintiff’s confinement there. (Dkt. #59-1).
Additionally, the advisory noted that none of the other
defendants were employed by Hopkins County Sheriff’s
Office or Jail during the time in which Plaintiff was
confined there. Sheriff Lewis Tatum filed an affidavit also
stating that Joe Scott left the Hopkins County
Sheriff’s Office on November 26, 2014, noting that he
nor any of the remaining named defendants were employees
during the time Plaintiff was confined. (Dkt. #59-2). In
response, Plaintiff stated that he had been confined in the
Hopkins County Jail since June of 2017. (Dkt. #61). This
statement has no relevance to the time period in which Joe
Scott was employed at the Hopkins County Jail since he
separated from employment on November 26, 2014. The Court
notes that, although Plaintiff was ordered to provide the
full names and correct addresses to the Court so that proper
service could be made (Dkt. ## 32, 38), he failed to do so.
Even after notice was provided that the remaining Defendants
were not properly served, Plaintiff made no attempts to
correct the deficiencies. Pursuant to Rule 4(m) of the
Federal Rules of Civil Procedure, the failure of a plaintiff
to serve a defendant within 90 days of commencement of an
action is cause for dismissal of that defendant from the
proceedings. Plaintiff fails to show good cause for the
failure. It is appropriate, therefore, that Plaintiff’s
claims against Defendants George Croney, Dennis Dean, Joe
Scott, Damon Cole, Jordan Edwards, and Sabrina Richardson be
dismissed; accordingly, the only remaining defendants are
Hopkins County Jail and Lewis Tatum.
Amended Complaint (Dkt. #26), Plaintiff claims that
Defendants violated his constitutional rights by subjecting
him to excessive use of force, cruel and unusual punishment,
wanton and unnecessary infliction of pain and suffering, and
denial of adequate access to medical treatment for an injury.
Plaintiff seeks punitive damages individually and jointly of
$100, 000.00, compensatory damages, individually and jointly
of $500, 000.00, costs of lawsuit, and a declaratory
judgment. Defendants Hopkins County Jail and Lewis Tatum,
assert that the complaint should be dismissed under
alternative theories, including the failure to exhaust
administrative remedies. Because the Court concludes that
Plaintiff failed to exhaust his administrative remedies,
there is no need to discuss Defendants’ alternative
theories for dismissal.
TO EXHAUST REMEDIES
Prison Litigation Reform Act (PLRA) provides that prisoners
are required to exhaust their administrative remedies before
filing suit. Jones v. Bock, 549 U.S. 199, 202
(2007). Section §1997e(a) of 42 U.S.C. provides that
“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.” The grievance
must give the correctional authorities “fair
notice” of the problem being complained of, such that
these authorities have a fair opportunity to address the
problem that will later form the basis of the lawsuit.
Johnson v. Johnson, 385 F.3d 503, 516-17 (5th Cir.
2004). The Supreme Court stated that correctional authorities
will not have a “fair opportunity” to consider
the grievance unless the prisoner complies with the
procedural rules – meaning that “proper”
exhaustion, within the procedural rules laid out by the
grievance system, is required. Woodford v. Ngo, 548
U.S. 81, 94 (2006); Johnson v. Ford, 261
F.App’x 752 (5th Cir. 2008).
and prisons use a formal grievance process for
prisoner’s complaints. Johnson, 385 F.3d at
515. Prisoners are instructed to file a Step 1 Grievance form
with their facility of confinement. If a resolution to the
grievance is not achieved, then the prisoner may file a Step
2 Grievance form, which is treated as an appeal. If it is a
county jail, as in this case, the appeal is usually sent to
the Sheriff. If a resolution is not achieved at that time,
the prisoner’s claim can be considered exhausted, for
purposes of the PLRA, and the prisoner may file a civil
rights action pursuant to 42 U.S.C. § 1983.
standardized Section 1983 complaint form, which has been
adopted by the Court, asks if Plaintiff has exhausted all
steps of the institutional grievance procedure. See
Dkt. #26, p. 4. It then clearly instructs Plaintiff to
“[a]ttach a copy of your final step of the grievance
procedure with the response supplied by the
institution.” Id. Plaintiff failed to attach a
copy of a final step of the grievance procedure to his
compliant. Even after receiving Defendants’ motion to
dismiss, Plaintiff failed to provide proof of exhaustion.
Plaintiff fails to show that he administratively exhausted
the claims brought in this action. Because each of the claims
Plaintiff makes were never processed through the
facility’s grievance system, as required, the complaint
must be dismissed for failure to exhaust administrative
remedies. 42 U.S.C. § 1997e(a) (“No action shall
be brought with respect to prison conditions . . . until such
administrative remedies as are available are
ORDERED Defendants George Croney, Dennis
Dean, Joe Scott, Damon Cole, Jordan Edwards, and Sabrina
Richardson are dismissed from this action.
further ORDERED that Defendants Hopkins
County Jail and Lewis Tatum’s motion to dismiss (Dkt.
#57) is GRANTED, and the claims are
DISMISSED without prejudice.
it is ORDERED all motions not previously