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Jackson v. Fisher

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

February 6, 2017

DAVID JACKSON PLAINTIFF
v.
MARSHALL FISHER in his individual and official capacities as Commissioner of MDOC; JACQUELYN BANKS in her individual and official capacities as Superintendent of SMCI; and CENTURION Company, Medical Provider DEFENDANTS

         MEMORANDUM OPINION AND ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION [38], DENYING PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION [3], DENYING PLAINTIFF'S MOTION FOR JOINDER OF PARTY [31], DENYING PLAINTIFF'S MOTION TO AMEND PLEADING [23], AND GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [23]

          HALIL SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on pro se Plaintiff David Jackson's Objection [42] and Supplemental Objection [44] to the Report and Recommendation [38] of United States Magistrate Judge John C. Gargiulo, entered in this case on November 17, 2016, regarding four pending motions: (1) Plaintiff's Motion for Preliminary Injunction [3]; (2) Plaintiff's Motion for Joinder of Party [31]; (3) Plaintiff's Motion to Amend Pleading [34]; and (4) Defendants Marshall Fisher's and Jacquelyn Banks' Motion for Summary Judgment [23]. Based upon his review of Defendants' Motion [23], related pleadings, and relevant legal authority, the Magistrate Judge recommended that Defendants' Motion for Summary Judgment [23] be granted and that this case be dismissed. R. & R. [38] at 2. Magistrate Judge Gargiulo also recommended that Plaintiff's motions should be denied. Id.

         Plaintiff filed his Objection [42] to the Report and Recommendation [38] on December 2, 2016, and was permitted to file a Supplemental Objection [44] on December 22, 2016. After thoroughly reviewing Plaintiff's Objections [42], [44], the Magistrate Judge's Report and Recommendation [38], the four pending motions, the record, and relevant legal authority, the Court finds that Plaintiff's Objections [42], [44] should be overruled and that the Magistrate Judge's Report and Recommendation [38] should be adopted as the finding of the Court. Plaintiff's motions should be denied, Defendants' Motion for Summary Judgment [23] should be granted, and this case should be dismissed without prejudice.

         I. FACTS AND PROCEDURAL HISTORY

         Plaintiff is currently in the custody of the Mississippi Department of Corrections (“MDOC”) and is incarcerated in the South Mississippi Correctional Institution (“SMCI”). Compl. [1] at 4. Plaintiff filed a Complaint [1] in this Court on June 10, 2016, pursuant to 42 U.S.C. § 1983, naming Marshall Fisher, the MDOC Commissioner, Jacquelyn Banks, the SMCI Superintendent, and Centurion, a medical services provider, as Defendants. Id. at 2. Plaintiff alleges that he is not receiving any treatment for his medical conditions, including gastroesophageal reflux disease, degenerative joint disease, major depression, and Hepatitis C, which Plaintiff claims he was exposed to while incarcerated at SMCI. Id. at 4-7. On the same date as the Complaint [1] was filed, Plaintiff filed the Motion for Preliminary Injunction [3] requesting an order directing Defendants to provide Plaintiff with necessary medical care. Mot. Prelim. Inj. [3] at 3.

         Plaintiff subsequently filed the Motion for Joinder of Party [31], seeking to add “Dr. Deese, ” a physician employed by Centurion, as a Defendant. Plaintiff also filed the Motion to Amend Pleading [34], seeking to add a claim regarding the service of his meals by unsupervised inmates. Defendants have not filed any response to Plaintiff's pending motions.

         Prior to filing this lawsuit, Plaintiff had previously accumulated three qualifying dismissals, or “strikes, ” for bringing past unsuccessful and frivolous civil actions under the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. 1915. R. & R. [38] at 2. Under the PLRA, Plaintiff is only permitted to proceed in forma pauperis in future civil actions or appeals if he is “under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). Despite having three strikes, Plaintiff was permitted to proceed in forma pauperis in this suit because the Court “could not definitely state that Plaintiff did not meet the imminent danger exception to the three-strikes rule.” R. & R. [38] at 2; Order [11] at 1.

         Defendants Banks and Fisher filed this Motion for Summary Judgment [23] on October 6, 2016, arguing that Plaintiff's case should be dismissed due to his failure to exhaust administrative remedies as required by the PLRA.[1] Mem. Supp. Mot. Summ. J. [24] at 2-3. Defendants point to Plaintiff's Complaint [1], in which he admits that he did not participate in the two-step MDOC Administrative Remedy Program (“ARP”) regarding his grievances because “[it] would be fruitless because I have already talked to the medical administrator, and was denied.” Compl. [1] at 3. Defendants also submitted the Affidavit [23-1] of Joseph Cooley, the custodian of the ARP records at SMCI, who states that the program has no record of Plaintiff's alleged exposure and contraction of Hepatitis C or his claim of the denial of medical treatment. Cooley Aff. [23-1] at 1. Plaintiff did not file a response to the Motion for Summary Judgment [23]. However, Plaintiff did file an Exhibit List [37] and an Attachment [40] “to be offered as evidence in this case.” Exh. List [37] at 1.

         The Magistrate Judge entered a Report and Recommendation [38] on November 17, 2016, recommending that Plaintiff's conditions-of-confinement case be dismissed without prejudice. R. & R. [38] at 2. The Magistrate Judge determined that dismissal of this suit is mandatory under the PLRA because Plaintiff failed to exhaust the available administrative remedies prior to filing the lawsuit. Id. at 1. The Magistrate Judge recommended that Defendants' Motion for Summary Judgment [23] be granted and that Plaintiff's Motion for Preliminary Injunction [3] be denied. Id. at 8.

         The Magistrate Judge further recommended that Plaintiff's Motion for Joinder of Party [31] be denied as futile because Plaintiff's § 1983 claims regarding medical treatment are barred. Id. at 8-9. The Magistrate Judge also recommended that Plaintiff's Motion to Amend Pleading [34] be denied because the proposed new claim regarding food service does not qualify for the imminent danger exception to the three-strikes rule and is therefore precluded by the PLRA. Id. at 9.

         Plaintiff filed a written Objection [42] to the Report and Recommendation [38] on December 2, 2016. On December 22, 2016, the Court permitted Plaintiff to file a Supplemental Objection [44]. Defendants have not responded to the Objections [42], [44].

         II. DISCUSSION

         A. Stand ...


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