United States District Court, S.D. Mississippi, Eastern Division
MEMORANDUM OPINION AND ORDER ADOPTING THE REPORT AND RECOMMENDATIONS
KEITH STARRETT, District Judge.
This cause is before the Court on Defendants' Motions [95, 98] for Failure to Exhaust Available Administrative Remedies, Motion  for Summary Judgment and on the Report and Recommendations  of Magistrate Judge Michael T. Parker. The Court has considered the above, as well as the applicable law and pleadings herein, as well as considering the Objections  to the Report and Recommendations filed by the Plaintiff. The Court finds that the Report and Recommendations should be adopted as the finding of this Court for the following reasons, to-wit:
Plaintiff Darnell Wilson, proceeding pro se and in forma pauperis, filed this civil action pursuant to 42 U.S.C. § 1983 on or about July 27, 2012. Wilson is currently incarcerated at East Mississippi Correctional Facility ("EMCF") located in Meridian, Mississippi. At the time of the events giving rise to this lawsuit, Wilson was incarcerated at South Mississippi Correctional Institute ("SMCI") located in Leakesville, Mississippi. SMCI is operated by the Mississippi Department of Corrections ("MDOC"). Through his complaint and as clarified during his Spears  hearing, Wilson alleges claims of retaliation, deprivation of property and failure to protect against the Defendants. Several of the claims arise from an alleged incident where Wilson revealed information about an officer at SMCI, which led to that officer's termination of employment. Several claims relate to the fact that Wilson has filed a substantial number of grievances during his time at SMCI. Wilson seeks compensatory and punitive damages, as well as injunctive relief in the form of an order expunging Rule Violation Reports ("RVRs") and preventing further harassment. The undersigned will discuss each of Plaintiff's claims more fully infra.
II. STANDARD OF REVIEW
When a party objects to a Report and Recommendation this Court is required to "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). See also Longmire v. Gust, 921 F.2d 620, 623 (5th Cir. 1991) (Party is "entitled to a de novo review by an Article III Judge as to those issues to which an objection is made.") Such review means that this Court will examine the entire record and will make an independent assessment of the law. The Court is not required, however, to reiterate the findings and conclusions of the Magistrate Judge. Koetting v. Thompson, 995 F.2d 37, 40 (5th Cir. 1993) nor need it consider objections that are frivolous, conclusive or general in nature. Battle v. United States Parole Commission, 834 F.2d 419, 421 (5th Cir. 1997). No factual objection is raised when a petitioner merely reurges arguments contained in the original petition. Edmond v. Collins, 8 F.3d 290, 293 (5th Cir. 1993).
III. ANALYSIS OF PLAINTIFF'S OBJECTIONS
Plaintiff makes no objections to the Report and Recommendations made by Judge Parker regarding the Motion for Summary Judgment. However, as to the Motion for Failure to State a Claim, the Court will proceed in the order set forth in the Report and Recommendation.
Failure to Protect
Plaintiff objects for failure to protect based upon his claims that he was wrongfully transferred from D-1 housing unit to C-1 housing unit by Captain Nina Enlers. He alleges that Captain Enlers did not first check the computer to see that he, in fact, had several "red tags, " which meant that he should not be housed with specific individuals. These "red tags" were claimed because Plaintiff had acted as an informant and was afraid that some gang members would do him harm because he had informed on a staff member who was furnishing contraband to the gang member.
Prison officials have a duty under the Eighth Amendment to protect inmates from violence at the hands of other prisoners. To prevail on a failure to protect claim Plaintiff must show that "he was incarcerated under conditions posing a substantial risk of serious harm and that prison officials were deliberately indifferent to his need for protection." Jones v. Greninger, 188 F.3d 322, 326 (5th Circ. 1999). Furthermore, in order to recover from mental and emotional injury, Wilson must also make a showing of physical injury. See Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(e). Plaintiff states that when the issue was raised by him with Captain Sims, that Captain Sims stated, "Enler had no business moving me' out of her building to a building where I' had a red tag' on an organization member' who had previously threatened me." He stated that the red tagged person was then moved. As stated above, Plaintiff must show deliberate indifference. This does not demonstrate deliberate indifference and the Court finds that this objection is without merit. Further, Plaintiff states that he suffered no physical injury. See Castellano v. Treon, 79 Fed.App'x 6, 7 (5th Cir. 2003).
Wilson makes claims that he is the victim of retaliation at the hands of several of the Defendants. In order to assert a retaliation claim, an inmate must show "(1) a specific constitutional right, (2) the defendant's intent to retaliate against the prisoner for his or her exercise of that right, (3) a retaliatory adverse act, and (4) causation." Plaintiff must first make a showing that but for the retaliatory motive, the action complained of would not have occurred. Johnson v Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997). "A prisoner who brings a retaliation claim bears a heavy burden that may not be satisfied by conclusional allegations or his own personal beliefs." William v. Dretke, 306 Fed.App'x 164, 167 (5th Cir. 2009). Retaliation claims must be viewed with skepticism to avoid meddling in every act of discipline imposed by prison officials. Morris v. Powell, 449 F.3d 682, 684 (5th Cir. 2006). Prisoners bringing Section 1983 retaliation ...