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Atwood v. Ford

United States District Court, S.D. Mississippi, Eastern Division

June 9, 2015

SHERIFF BEN FORD, et al., Defendants.


KEITH STARRETT, District Judge.

This cause is before the Court, sua sponte, for consideration of dismissal. Having reviewed Plaintiff's complaint [1], together with his response [7] to this Court's order [6] seeking additional information concerning his claims, the Court finds as follows:


Pro se plaintiff David Garland Atwood, an inmate in the custody of the Federal Bureau of Prisons (BOP), who is currently incarcerated at the Federal Correctional Institution El Reno, in El Reno, Oklahoma, brought this complaint challenging two arrests and the conditions of his confinement in the jails of Covington County, the City of Collins and Rankin County, Mississippi. The named Defendants are former Covington County Sheriff Ben Ford, Covington County Sheriff Stann Smith, Covington County Deputy Holbrooke, Covington County Detective Pamela Wade Smith, Covington County Deputy Angie Diehl, Nurse Practitioner for Covington County James Shivers, Covington County Unknown Deputy #1, and Covington County Unknown Deputy #2, referred to herein collectively as "the Covington County defendants." Plaintiff also sued a Collins, Mississippi, Unknown Police Officer. From Rankin County, Plaintiff sued Sheriff Ronnie Pennington, Captain Eddie Thompson, and Detective Tommy Moss, referred to herein as "the Rankin County defendants." Finally, Plaintiff sued federal Probation Officer William Jay Simpson, Federal Bureau of Investigation ("FBI") Special Agent Kevin Sanderson, and FBI Forensic Examiner Wayne Mitchell, referred to herein as "the federal defendants."

Plaintiff alleges that on August 16, 2011, while on federal probation, he was arrested by Detective Pamela Wade Smith of the Covington County Sheriff's Department, and charged with enticement of a minor in violation of Mississippi law. [1] at 5. Plaintiff claims that Detective Smith took two cells phones from him at the time of his arrest and turned them over to FBI Special Agent Sanderson and Defendant FBI Forensic Examiner Mitchell. Id. Plaintiff alleges that to date Covington County Deputy Holbrooke, Sheriff Smith, Probation Officer Simpson, Special Agent Sanderson and Forensic Examiner Mitchell have failed to return those phones, despite having been requested by Plaintiff to do so. [1] at 17-18; [7] at 4-5. Plaintiff further claims that Deputy Holbrooke stated that the phones were lost. [1] at 17.

On August 16, 2011, while awaiting processing after his arrest, Plaintiff claims to have been handcuffed to a chair at the Covington County Jail for eighteen hours with no bathroom break, food or water by Sheriff Ben Ford, Detective Diehl, Detective Smith and Unknown Deputy #1. [1] at 6; [7] at 1. Then, according to Plaintiff, Defendant Unknown Deputy #1 forced him into a holding tank with other inmates, despite Plaintiff having warned that defendant, as well as Deputy Diehl and Detective Smith, that another inmate had told Plaintiff he would be assaulted if not placed in protective custody. [1] at 6. Plaintiff claims that he was then assaulted when placed in the holding tank. Id. The next morning, Plaintiff alleges that he told defendant Unknown Deputy #2 about the assault, but this Defendant rejected Plaintiff's request to be moved. Id. at 7. Plaintiff alleges that he also told both former Covington County Sheriff Ford and Detective Smith about the assault, and that he needed medical attention, which was not provided. Id.

Plaintiff claims that on August 17, 2011, he was assaulted a second time in the holding cell, because one inmate told the other inmates that Plaintiff reported the first incident. Id. Plaintiff states that after the second assault he was taken that same day or the next day to see Defendant Shivers, a nurse practitioner serving the inmates of the Covington County Jail, but Defendant Shivers failed to provide medication for a previously diagnosed and life threatening condition. Id. at 7-8. After his visit to Defendant Shivers, Plaintiff was placed in a segregated cell. Id. at 8.

On August 19, 2011, Plaintiff asserts that he was transferred to the Rankin County, Mississippi Jail. Id. Plaintiff claims Rankin County charged him with felony exploitation of a minor, but that those charges were eventually dropped. Id. at 8-10. Plaintiff alleges that Defendant Detective Moss of the Rankin County Sheriff's Department investigated and made the arrest, which Plaintiff contends was unlawful. [1] at 8-9. Plaintiff claims that while he was incarcerated at the Rankin County Jail, Defendants Sheriff Pennington and Captain Thompson refused to allow him access to the law library or outside recreation. Id. Plaintiff also alleges that Captain Thompson confiscated and destroyed some of his legal documents. Id. at 10.

On October 31, 2011, Plaintiff alleges that he was transferred to the Collins, Mississippi City Jail, where Defendant Unknown Police Officer ignored his request for medical attention. Id. at 10. After several days, Plaintiff was transferred back to the Covington County Jail and Defendant Unknown Deputy #1 placed Plaintiff back in the holding cell with others. Id. 10-11. Plaintiff claims he was assaulted a third time before being moved back to a segregated cell. Id. at 11. Plaintiff saw Defendant Shivers again, but claims that he remained ill. Id. Plaintiff alleges that Sheriff Ford told him there was no money to take inmates to the doctor. Id. Plaintiff claims to have suffered for two months, until Sheriff Stann Smith took over as sheriff and he was taken to see Defendant Shivers a third time. Id.

On January 23, 2012, Plaintiff alleges that he was taken into federal custody because his federal probation officer, Defendant Simpson, had a warrant issued based on the Covington County charges. Id. at 12. Plaintiff's probation was ultimately revoked.

Plaintiff characterizes his claims as false imprisonment, false arrest, malicious prosecution, deliberate indifference to medical needs, failure to protect, lack of access to law library, lack of access to courts, lack of outdoor recreation, confiscation and destruction of legal work, and replevin for confiscation of the phones. [1] at 1, 18. Plaintiff seeks compensatory damages, nominal damages and punitive damages. [1] at 24-25.


Title 28 U.S.C. ยง1915 applies to prisoners proceeding in forma pauperis in this Court. Section 1915(e)(2), provides that "the court shall dismiss the case at any time if the court determines that... (B) the action or appeal - (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." The Court has permitted the Plaintiff to proceed in forma ...

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