United States District Court, S.D. Mississippi, Southern Division
OPINION AND ORDER
MICHAEL T. PARKER, Magistrate Judge.
THIS MATTER is before the Court on the Motion for Summary Judgment  filed by the Plaintiff Donald Gaines Menser and Motion for Summary Judgment  filed by Defendants Wexford Health and Ronald Woodall. Having carefully considered the submissions of the parties and the applicable law, the Court finds that Plaintiff's Motion  should be denied, that Defendants' Motion for Summary Judgment  should be granted, and that one of Plaintiff's excessive force claims against Defendant Enlers be dismissed for failure to state a claim upon which relief can be granted.
Plaintiff Donald Gaines Menser, proceeding pro se and in forma pauperis, filed this civil action pursuant to 42 U.S.C. § 1983 on or about May 30, 2013. Although Menser is no longer incarcerated, at the time of the events giving rise to this lawsuit, Menser was a post-conviction inmate incarcerated at South Mississippi Correctional Institute ("SMCI"). Through his complaint and as clarified during his Spears  hearing, Menser alleges claims of excessive force and deliberate indifference of his medical needs against the Defendants.
Menser claims that Defendant Captain Enlers violated his Eighth Amendment rights by using excessive force against him on two occasions. First, Menser alleges that on or about September 13, 2012, Defendant Enlers ordered him out of the prison dining room after mistaking him for another inmate who had cursed an officer. Menser alleges that Enlers berated him and slapped him. He claims Enlers took him to Tower 5 the next morning where she slapped him two more times. Menser stated that he did not sustain any physical injuries. Second, Menser alleges that on or about October 31, 2012, he and other inmates witnessed officers assaulting another inmate. According to Menser, Defendant Enlers assaulted him after he made a comment about there being no cameras at the scene. Menser alleges that Enlers struck him over the left eye with a mace can. He alleges that Enlers then took him to another location and struck him with her hands while another officer stood by with a shotgun. Menser alleges that he sustained a cut over his left eye from being struck by the mace can.
Menser alleges that Defendant Enlers demonstrated deliberate indifference to his medical needs by wrongfully moving him to a different housing zone with instructions that he be assigned a top bunk. Menser claims that Enlers knew that he could only be assigned a bottom bunk due to injuries sustained before his incarceration at SMCI. Specifically, Menser claims that he no longer has a sense of balance or equalibrium. After being forced to sleep in the top bunk, Menser alleges that on or about November 23, 2012, he fell from the top bunk and separated his shoulder.
Menser also alleges that Defendants Wexford Health, and its employee, Doctor Ronald Woodall, were deliberately indifferent to his medical needs by failing to provide him with adequate treatment in connection with two different medical issues. First, Menser alleges that he was in a car accident prior to his incarceration at SMCI, and that he was prescribed pain medication as a result. Menser alleges that Defendants denied him access to the pain medical upon his arrival at SMCI in 2012.
Second, Menser alleges that on or about November 23, 2012, he fell from the top rack of a bunk bed in his cell and separated his shoulder. Menser went to the SMCI infirmary, operated by Wexford Health, and was allegedly sent away without treatment. Menser claims he returned to the infirmary later that day and was taken to Greene County Hospital for treatment. The hospital x-rayed Menser's arm and put it in a sling, and prescribed him a five-day supply of pain medication. Menser was then returned to SMCI. The next morning, Menser alleges that Defendant Woodall examined him and then sent him back to his cell. Menser argues that Woodall did not perform a proper examination, did not him to explain his injuries, and did not allow him to have the pain medication the hospital has prescribed.
Menser alleges he filed an Administrative Remedy Procedure ("ARP") grievance regarding his treatment, and that Defendant Woodall responded to the ARP with false statements. Specifically, Menser claims that Woodall wrongfully stated that he had prescribed Menser pain medication.
Menser alleges that he was eventually taken to a specialist in Hattiesburg to have his shoulder examined. He alleges that the specialist instructed him and SMCI personnel that Menser should be brought back a month later for a follow-up appointment. Menser alleges that Defendant Woodall did not allow him to return for the follow-up visit, and that he did not see the specialist for another three months. Menser alleges that the specialist advised him the surgery on his shoulder would be more complicated due to the delay. Menser declined to have surgery on his shoulder while incarcerated because he did want to be unable to defend himself during the recovery period. Menser seeks injunctive relief and approximately nine million dollars in damages.
Plaintiff Donald Menser filed a motion for summary judgment on or about June 24, 2014. Defendants Wexford Health and Dr. Woodall moved for summary judgment on October 7, 2014. Although Defendant Enlers has not moved for summary judgment, one of the excessive force claims allged against her will be dismissed pursuant to 28 U.S.C. § 1915(e), as discussed infra.
A motion for summary judgement will be granted only when "the record indicates that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.'" Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004) (citing FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). The court must view "the evidence in the light most favorable to the nonmoving party." Id. However, the nonmoving party "cannot defeat summary judgment with conclusory allegations, unsubstantiated assertions, or only a scintilla of evidence.'" Turner v. Baylor Richardson Medical Center, 476 F.3d 337, 343 (5th Cir. 2007) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)). ...