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Hayes v. Terrell

United States District Court, Fifth Circuit

September 9, 2013

BILLY JOE HAYES, #110591, Plaintiff,
v.
WARDEN TERRELL, ET AL, Defendants.

MEMORANDUM OPINION AND ORDER

LINDA R. ANDERSON, Magistrate Judge.

THIS CAUSE is before the Court on the Motion for Summary Judgment [32] filed by Defendant Brenda Sims. Plaintiff Billy Joe Hayes has not filed a written response to the request to dismiss. The Court has considered the pleadings and exhibits, Hayes's sworn testimony given at the omnibus hearing, and the applicable law. This review compels the Court to find that Defendants are entitled to a judgment at law, as there are no genuine issues of material fact at issue in this case. The Motion for Summary Judgment shall be granted.

FACTS

Jurisdiction of this case is based upon 42 U.S.C. ยง 1983. Hayes's sworn testimony at the omnibus hearing, in conjunction with the written evidence submitted by Defendant, reveal the following relevant facts. Hayes is incarcerated as a convicted felon in the custody of the Mississippi Department of Corrections ["MDOC"] at the East Mississippi Correctional Facility ["EMCF"] in Meridian, Mississippi. He was housed in the South Mississippi Correctional Institute ["SMCI"] in Leakesville, Mississippi, until March 24, 2011. On that day, he was in the medical unit in SMCI and was given a shot to calm him down. That facility wanted to have him transferred immediately to EMCF, and he was not allowed to pack his own property before being transported. According to the Complaint, his mental health counselor, Ms. Franklin, asked if Plaintiff could go get his personal property. She was told that Commissioner Sparkman of MDOC wanted Plaintiff moved as soon as possible and that his property would be sent.

According to Plaintiff, he arrived at EMCF on the same date, March 24, 2011. On April 10, 2011, 17 days later, he filed a complaint with the Administrative Remedy Program at EMCF explaining that his property was not sent to him. Ms. Jackson worked on his ARP at EMCF. She investigated and told Plaintiff that they had searched EMCF, and that his property was never received from SMCI. She told Plaintiff that he would have to file an ARP with SMCI. Plaintiff questioned that instruction, because Ms. Sims, who answered his ARP, worked at SMCI. Nevertheless, Plaintiff sent the original ARP copy to SMCI.

Plaintiff's ARP stated the following:

On the 24th day of March 2011, at approx. 12:30 p.m., I was transferred from the medical dept. at Greene County (S.M.C.I.) to E.M.C.F. At the time of being transferred, I was not allowed to go back to the building I was staying in to pack my property and was told by the transporting officer that my personal property would be forwarded to me. When transferred, my personal property, as being radio, personal letters, pictures, legal materials, and hygiene products were left at Greene County (S.M.C.I.). As of the date of this complaint, I have not received my personal property from Greene County.

As relief, Plaintiff only requested that his property be returned. This ARP was dated 4/20/2011.

On June 15, 2011, "S. Carter" filed the First Step Response, stating:

Spoke with Lt. Boner on 6-15-11 at apprx 1445. She stated offender Hayes' property was delivered to EMCF on 4-21-11 by SMCI transportation.

Another response was submitted by S. Carter, also dated June 15, 2011, but it says the property "was delivered to Offender Hayes by SMCI transportation."

Plaintiff's Second Step Response was dated September 13, 2011, and signed by "Warden Terrell." It states:

Offender Hayes, EMCF has no record of your property being transferred from SMCI. You arrived on 3-24-11 and your property was supposed to be delivered on 4-21-11. There is no record of this. You will need to contact SMCI officials.

Plaintiff testified that he had no personal contact with Defendant Sims, nor does he know whether she personally destroyed, confiscated or lost his property. His claim against her is only that she was "in charge of the ...


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