United States District Court, N.D. Mississippi, Greenville Division
ORDER DENYING PLAINTIFF'S MOTION  TO HOLD THE
DEFENDANTS IN CONTEMPT OF COURT FOR FAILURE TO COMPLY WITH
CONSENT ORDER, DENYING COUNSEL'S MOTION  TO WITHDRAW,
GRANTING PLAINTIFF'S MOTION  FOR EVIDENTIARY
matter comes before the court on the motion  by the
plaintiff to hold the defendants in contempt of court for
failure to comply with the terms of the consent order 
entered by this court on March 7,2013, which set forth
general parameters for the defendants to follow to ensure
that Mr. Powers receives adequate medical care. Mr. Powers is
a Death Row inmate who has suffered a series of strokes
causing significant impairment. In the contempt motion ,
Mr. Powers claims that the court should find that the
defendants are in contempt of court for changing the date of
a scheduled visit to a neurologist. In addition, counsel for
the plaintiff has moved  to withdraw, and the plaintiff
has requested  an evidentiary hearing to determine
whether the defendants have complied with the 2013 consent
order. For the reasons set forth below, the plaintiffs motion
 for contempt will be denied, as will counsel's
motion  to withdraw. The plaintiffs motion  for an
evidentiary hearing will, however, be granted, and the court
will refer the matter to the Magistrate Judge assigned to
this case for Report and Recommendation.
accordance with the Consent Order, on March 27,2013,
Mississippi Department of Corrections ("MDOC")
medical personnel sent Powers to Dr. Pande, a neurologist in
Greenwood, Mississippi. According to Dr. Pande's 2013
report, Mr. Powers' fixed deficits due to the stroke had
been stable for the past 6-7 years; the chances of Powers
regaining full strength was "minimal," and
"[n]o further rehab or work up is required at this
time." Doc. 60 at 6. Dr. Pande also recommended
"ASA for secondary prevention of another stroke."
Id. "ASA" is aspirin, which medical
personnel ordered. Id. at 2.
January 2016, Mr. Powers told MDOC medical providers that he
felt like he had experienced another stroke. MDOC medical
staff conducted a full evaluation and determined that his
neurological symptoms arose out of the damage caused by his
previous strokes. However, to be cautious, MDOC arranged for
Mr. Powers to see Dr. Pande, a nearby neurologist, in June
2016, the earliest date available. When Powers was not taken
to the neurologist in June, he filed the instant motion for
contempt, arguing that "the defendants have no intent in
fully complying with the consent order in this cause."
In their response to the motion, the defendants state that
"Dr. Pande's office changed the date of Plaintiff s
MRI to August 3,2016, and the date of Plaintiff s office
evaluation to August 9,2016. These changes were not made at
the request of, or due to any action/inaction on the part of
this defendant or any MDOC personnel." Doc. 60 at 2.
Indeed, according to the plaintiff, he underwent MRI testing
on August 3 and reviewed the results with Dr. Pande on August
9,2016. Doc. 64 at 3.
to Mr. Powers, he visited Dr. Pande again on October 11,2016,
and complained that he was not been receiving his
medications. Doc. 67 at 2. Dr. Pande then said that it was
not his responsibility to ensure that MDOC provided Powers
with medication. Id. Powers then saw Dr. Pande
several times in January 2017, and the doctor again
prescribed some medications, though Powers is not sure which
ones. Id. at 3. Someone told Powers that Nurse
Angela Brown had ordered the medicines in October 2016, but
he did not get them until January 25,2017. Id. at
3-4. The medications were Depakote and Divalproex (both for
seizure prevention). Id. at 4.
upon the plaintiffs allegations and medical records provided,
the court finds that the defendants have substantially
complied with the March 7,2013, consent order. Powers has
received frequent and regular medical care, and, when MDOC
medical personnel were not supremely confident in their
assessment of Powers' stroke symptoms, they sent him to
Dr. Pande, a Free World neurologist. Dr. Pande then examined
Powers, performed MRI testing, and apparently prescribed some
anti-seizure medication. There appears to have been a delay
of several months on MDOC's end, but Powers eventually
received two different anti-seizure medications. In light of
the documentary evidence before the court at present, the
court holds that MDOC medical personnel are attending to Mr.
Powers' medical needs, and his motion  for contempt
will be denied.
Court's Continuing Jurisdiction
become clear that neither the plaintiff nor the defendants
are satisfied with the consent order at this point. The 2013
consent order "resolve[d] the dispute between the
Plaintiff... and the Defendant" regarding the plaintiffs
stroke occurring in 2006 and the medical care he received
from that point until he filed suit in 2010. Thus, the
plaintiffs 2006 strokes and problems arising out of them are
not at issue here. By the consent order's terms, the
remedy for the defendant's failure to comply with the
order is for the plaintiff to "apply to the Court for a
finding of contempt or other appropriate relief." Mr.
Powers has done so several times, and the court found each
time that, based upon the documentary evidence, the
defendants had substantially complied with the terms of the
consent order. Over the years, the plaintiff has experienced
several delays in treatment, and sometimes a course of
treatment proves ineffective. These frustrations have led Mr.
Powers to file several motions for contempt.
Powers would prefer a hearing on the merits as to level and
consistency of his treatment after entry of the 2013 consent
order. The defendants would also prefer a hearing on the
merits to relieve them of the burden of compiling and
submitting a semiannual medical report to the court, as well
as the burden of defending Mr. Powers' sporadic motions
for contempt. In addition, Mr. Powers has made clear that he
is not satisfied with the performance of his appointed
counsel, who, as a consequence, has requested to withdraw.
consent order in this case has facilitated the court's
monitoring of Mr. Powers' serious medical conditions for
the last several years; however, given the findings of the
neurologist, MDOC doctors, and medical staff, monitoring may
no longer be necessary. The court has reviewed the reports
and affidavits during the course of monitoring, but at this
point it would be useful to see witnesses offer testimony in
the crucible of cross-examination so that the court may judge
their credibility. That testimony - along with documentary
evidence - would paint a more complete picture of Mr.
Powers' care than the reports received since the court
entered the consent order. Such a hearing would make clear
whether the court's monitoring of Mr. Powers'
situation should continue.
these reasons, the court will direct the Magistrate Judge
assigned to this case to hold an evidentiary hearing to
determine: (1) whether the overall level of care Mr. Powers
has received after entry of the consent order in this case
has been constitutionally adequate and substantially in
compliance with the consent order; and (2) based upon the
first finding, whether the consent order should remain in
force. Given the cognitive and speech deficits Mr. Powers
suffers as a result of his major stroke in 2006,
counsel's motion  to withdraw as Mr.
Powers' attorney will be denied without prejudice. Mr.
Powers will need counsel to present his case during the
evidentiary hearing. Once the hearing is complete, Mr. Powers
and his attorney may revisit the issue of withdrawal of
(1) Stephen Powers' motion  for contempt is DENIED;
(2) the motion  by plaintiffs counsel to
withdraw as attorney is DENIED;
(3) the plaintiffs motion  for evidentiary hearing is