United States District Court, S.D. Mississippi, Northern Division
Keith Ball UNITED STATES MAGISTRATE JUDGE
Alan Myers is a state inmate housed at East Mississippi
Correctional Facility (EMCF). He brought this action pursuant
to 42 U.S.C. § 1983 alleging that officials at the
prison failed to adequately protect him from a sexual assault
by another. The Court has held a Spears hearing, and the
parties have consented to jurisdiction by the undersigned.
Two of the defendants have filed motions to dismiss. Having
considered the motions and Plaintiff's testimony at the
hearing, the Court finds and rules as follows.
alleges the following: In November of 2015, Plaintiff was
moved from Housing Unit 4A to Housing Unit 6A. Plaintiff is
homosexual, and most of the inmates on Unit 6A are gang
members. Immediately after his transfer, he began complaining
to prison officials that he did not feel safe on the unit and
asking to be moved. Plaintiff explained that inmates were
harassing him, threatening him, and stealing his personal
property. Nevertheless, Plaintiff remained on the unit, and
on February 14, 2016, he was sexually assaulting during the
night by an inmate he identified as “Lobo.” The
inmate was able to enter Plaintiff's cell because,
contrary to prison policy, the cell doors in the unit are
routinely left unsecured at night.
Evelyn Dunn has filed a motion to dismiss for failure to
state a claim. . Ms. Dunn is a psychiatric nurse
practitioner at EMCF. According to Plaintiff, prior to his
assault, he filled out a medical request form stating that he
would kill himself if he was not moved out of the unit.
Thereafter, he saw Ms. Dunn and told her that his mental
health was suffering (Plaintiff is bipolar and suffers from
depression). After talking with Plaintiff, Ms. Dunn referred
the matter to Lt. Cooney. At the omnibus hearing, Plaintiff
explained that he was suing Ms. Dunn because he believes she
could have done more to try to influence prison security
officials to have him moved.
order to recover against Ms. Dunn under § 1983 for her
failure to protect him from the assault, Plaintiff must
establish that she was deliberately indifferent to the risk
that he would be harmed. See Williams v. Hampton,
797 F.3d 276 (5th Cir. 2015). Plaintiff's
allegations do not rise to this level. Indeed, he admits that
she took action; he merely disagrees with whether she could
have “tried harder.” For this reason, Dunn's
motion is granted, and the claim against her is hereby
before the Court is the motion for summary judgment filed by
Frank Shaw, EMCF Warden. . As clarified at the omnibus
hearing, Plaintiff's allegation concerning Shaw is that
he knowingly failed to enforce the prison's requirement
that cells be locked at night, thereby allowing the
conditions under which the assault occurred. In his motion,
Shaw argues that Plaintiff failed to exhaust his prison
administrative remedies as to this claim.
motion and Plaintiff's testimony establish that Plaintiff
filed two grievances related to the issue of his safety on
the unit. The first was filed approximately one week prior to
the assault. See [29-1] at 6. In it, he stated that
he was being harassed by gang members and that he did not
feel safe. He also complained that his personal property had
been stolen from his cell. He requested that his property be
replaced and that he be moved to a different housing unit.
Plaintiff's other grievance was filed approximately two
weeks after the assault. See [29-2] at 6. In this
grievance, he complained that the assault would not have
occurred had officials heeded his requests to be moved. He
asked that he be moved, that two prison officers be
reprimanded, and that he be awarded damages.
applicable section of the Prison Litigation Reform Act
(PLRA), 42 U.S.C. §1997(e), requires that an inmate
bringing a civil rights action in federal court first exhaust
his administrative remedies. Whitley v. Hunt, 158
F.3d 882 (5th Cir. 1998). This exhaustion requirement applies
to all inmate suits about prison life. Porter v.
Nussle, 534 U.S. 516, 122 S.Ct. 983, 992 (2002). The
requirement that claims be exhausted prior to the filing of a
lawsuit is mandatory and non-discretionary. Gonzalez v.
Seal, 702 F.3d 785 (5th Cir. 2012). Shaw argues that the
claim against him is unexhausted, as Plaintiff in his
grievances never raised any issue regarding compliance with
nightly lockdown procedures.
order to satisfy the exhaustion requirement, a grievance must
be specific enough that it alerts prison officials to the
problem of which the prisoner is complaining and provides
them with a fair opportunity to address it. Johnson v.
Johnson, 385 F.3d 503, 516-17 (5th Cir. 2004). In the
context of Shaw's argument, the relevant question is
whether prison officials would have realized, under the
circumstances, that the failure to lock the cells at night
was a contributing component to the safety threat of which
Plaintiff was complaining. And to answer that question, the
Court would need some idea of what those circumstances were,
including the actual policies and procedures concerning
nightly lockdown. The evidence currently before the Court is
not sufficient for this purpose. Accordingly, Shaw's
motion is hereby denied.
matter is set for a bench trial before the undersigned on
Wednesday, April 25, 2018, at 1:30 p.m.
has indicated that he desires to have Broderick Powell, an
inmate at EMCF, testify at trial on his behalf. The Court
will secure the presence of Mr. Broderick at trial if he is
in MDOC custody at that time. Should he become free world
prior to trial, Plaintiff shall be responsible for securing
his presence at the trial. Should he refuse to appear
voluntarily, Plaintiff shall adhere to the following
procedure to secure the witness's presence. No later than
thirty days prior to trial, Plaintiff shall file a motion
requesting a subpoena to be issued for the witness. The
request shall include the name and address of the witness,
and shall be accompanied by the witness fee and expense
payment required by Rule 45 of the Federal Rules of Civil
hearing, Defendants produced to Plaintiff their witness and
exhibit lists, Plaintiff's institutional medical records
for the relevant time period, and his institutional file.
Additional discovery shall be limited to 25 interrogatories,
25 requests for admission, and 25 requests for production.
All discovery ...