United States District Court, S.D. Mississippi, Jackson Division
MEMORANDUM OPINION AND ORDER
LINDA R. ANDERSON, Magistrate Judge.
The parties appeared and participated in an omnibus hearing before the undersigned United States Magistrate Judge on October 25, 2012, at the Jackson Federal Courthouse in Jackson, Mississippi. Alvin Da'Von Thompson ("Plaintiff" or "Thompson") appeared pro se; Defendants were represented by Keith Gates and Tommy Goodwin, Office of the Attorney General of the State of Mississippi, Jackson, Mississippi. On September 5, 2013, Defendants filed a Motion for Summary Judgment  which is now before the Court. Plaintiff's pleading filed on March 10, 2014, has been considered in response to the motion, as well as his sworn testimony at the hearing. After consideration of the motion, the supporting pleadings, and the applicable law, the Court finds that the motion of Defendants is well-taken and should be granted.
I. Plaintiff's Claims
Jurisdiction of this case is based upon 42 U.S.C. § 1983. Plaintiff was housed as a convicted inmate in the custody of the Mississippi Department of Corrections [MDOC] in the Central Mississippi Correctional Facility in Pearl, Mississippi, in 2012. According to Plaintiff, on January 12, 2012, he received a Rules Violation Report [RVR] for having a cellphone, and the phone was not his. The emergency response team did a shakedown of his zone on that date, and everyone's property was scattered on the floor. Approximately 90 inmates live on the zone, with no individual cells. Plaintiff was asked if certain shoes were his, and he told the officer they were not his. Yet a phone was in one of the boots they said were his, and the officer wrote him up for it. He tried to tell the officer they were not his boots, but he was written up anyway.
Plaintiff did appeal the RVR. He did have a hearing, but it was not conducted until the eighth working day after the incident. According to procedure, Plaintiff asserts that it should have been conducted within seven working days. Plaintiff contends that no investigation occurred within 24 hours, as it should have, because no investigator ever talked to him. Plaintiff tried to tell the hearing officer (Defendant Summerville) these facts at the hearing, but she just told him to appeal it. Plaintiff wanted to call witnesses, but he was not allowed to do so. He completed all the steps for appeal, but nobody ever really listened.
According to Plaintiff, the RVR damaged him because he lost privileges, including his trusty earned time and the loss of his job. He was placed in another job, ground maintenance for the canine unit; this job assignment was considered punishment, and he could not get earned time for that job. After that, on March 19, 2012, he was reclassified to go to a special unit for only prisoners who are found in possession of a cellphone; this unit was not created until February 15, 2012. A prisoner assigned to that unit cannot work outside of the building. Plaintiff had to start anew trying to complete two months as RVR free. The conditions of the housing are poor- he had to sleep by a vent that was welded shut, so the filter could not be changed. Water leaked all over the bathroom. The food was not sanitary. He was denied religious services. The unit is dangerous, and at least three other inmates have been stabbed. It is actually a gang unit. There are no televisions or other electronics in the unit. A prisoner is given no hygiene products unless he buys them in the canteen.
Thompson testified that it was Defendant Studaway who found the cellphone and wrote the RVR. Defendant Summerville was the original RVR hearing officer, and she served him his RVR after eight working days. Defendant Ward is the person who says that she investigated the RVR; Plaintiff has never met her, as she did not interview him.
According to Plaintiff, he has been set back for a total of about eight months, as he lost the earned time he would have gotten, as well as the time already accumulated. As relief, he asks that the RVR be removed from his file; that he be returned to A custody; that his earned time be restored. Specifically, his request for relief contained in the Complaint, pages 4, 7-8, is quoted as follows:
Premise being considered based on the facts the remedy I seek is restoration to my custody and status that I was in prior to 1/24/2012. Supplementation of all time lost from institutional job assignment in the form of MET time I would of accumulated from then to present a total of 40 plus days as well as 40 plus more days of MET that I would have earned by participating in the Chaplain Dept. Bible Study program. Also to have RVR #1227655 removed from my working file. I also request that the double jeopardy punishment for cellphone RVRs be investigated, examined, acknowledged, and put to a stop to this cruel and unusual punishment and practices of deliberate indifference. I request that all MET and earn-time be restored immediately and that I be returned to minimum non-community custody. The facts listed and errors and neglect warrant such relief as requested and deemed necessary by Your Honor.
Thompson was allowed to amend to state that he only sues Defendants Preletia Studaway (ERT Officer), Merrilyn Summerville (CMCF Area 1 Hearing Officer), and Vicki Ward (CMCF 1A Investigator) in their individual capacities, not in their official capacities . Apparently, the remaining Defendants, Christopher Epps (MDOC Commissioner), Emmit Sparkman (Deputy Commissioner), and James Holman (Superintendent of CMCF) are sued in their official capacities.
Thompson was also allowed to amend to clarify the relief he seeks . In this pleading, he amended to ask for monetary damages in addition to injunctive and declaratory relief.
At the omnibus hearing, Defendants made an ore tenus motion to dismiss Thompson's claims regarding religious services, food, dangerous living conditions in the cellphone unit, and his challenges to being punished again by being housed in that unit. Plaintiff admitted that his ARP did not cover those issues, and that he had not exhausted his administrative remedies on these claims. In support of their request to dismiss on this basis, Defendants have submitted Thompson's ARP file as Exhibit A to their Motion for Summary Judgment [29-1].
II. Standard of Review
"Summary judgment is appropriate if the moving party can show that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'" United States v. Renda Marine, Inc., 667 F.3d 651, 655 (5th Cir.2012) (quoting Fed.R.Civ.P. 56(a)). "A factual dispute is genuine' where a reasonable party would return a verdict for the nonmoving party." Chiu v. Plano Indep. Sch. Dist., 339 F.3d 273, 282 (5th Cir.2003) (quoting Lukan v. North Forest Indep. Sch. Dist., 183 F.3d 342, 345 (5th Cir.1999). When considering a summary judgment motion, a court "must review all facts and evidence in the light most favorable to the non-moving party." Juino v. Livingston Parish Fire Dist. No. 5, 717 F.3d 431, 433 (5th Cir.2013). However, "[u]nsubstantiated assertions, improbable inferences, and unsupported speculation are not sufficient to defeat a motion for ...