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Lee v. Epps

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

November 9, 2017




         Plaintiff Dennis O'Neal Lee, proceeding pro se and in forma pauperis, filed a 42 U.S.C. § 1983 prisoner civil rights complaint. In his original complaint, Plaintiff alleged that he suffers from a serious scalp infection that requires treatment by a dermatologist. Doc. [1]. According to Plaintiff, on October 15, 2014, Nurse Practitioner Karen Deese submitted a request for specialty care to Defendant Dr. Zein in the Office of Medical Compliance. Plaintiff contends that, as of the filing of his initial complaint, he had not been seen by a dermatologist. As a result of the scalp condition, he is unable to sleep. The condition is worsening and spreading to other parts of his body. He asserts that the Mississippi Department of Correction's (MDOC) medical care provider (Centurion) refuses to allow inmates to see specialists as a cost-saving measure.

         Plaintiff also alleged that on February 19, 2015, he was subjected to excessive force. On that day, Plaintiff observed a correctional officer (Defendant Christopher Luker) assaulting another inmate. When Plaintiff objected to Luker's treatment of the other inmate, “Warden Turner said something and without warning Defendant C. Luker began to choke me as I laid in bed the other K-9 officers. . . pulled me off the bed began to kick me while K-9 T. Byrd punched me in the face several times.” Plaintiff further alleges that the officers dragged him into the hallway, handcuffed him, and “did it again”. According to Plaintiff, Defendant Marshal Turner watched the assault and did not intervene. After the incident, Plaintiff was stripped down to his boxers and placed in a holding cell for one night with the air conditioning unit on full blast and the light on. He was not given a mat, sheet, toiletries, or his personal property. Plaintiff was seen by medical staff and given treatment for back pain. He alleges that he takes pain medication for the back injury that resulted from the assault. When Plaintiff finally received his personal property, some of it was missing (his wedding ring and seven bags of Christmas package chips).

         On February 19, 2015, he was served with disciplinary charges for assaulting staff and for possession of a knife. The Rules Violation Report (RVR) related to the altercation between Plaintiff and Defendants Luker and Byrd. On February 21, 2015, he alleges he was placed in solitary confinement. On February 27, 2015, he received a disciplinary hearing before Defendant Jacqueline Leverette. Although Plaintiff requested witnesses at the hearing, “Leverette stated that she was not gonna call the witnesses because Warden Turner told her to find me guilty anyway.” Plaintiff was found guilty based on the staff report. According to the staff report, Plaintiff grabbed Defendant Byrd's left arm. Plaintiff asserts that there was no evidence of a serious injury to Defendant Byrd; therefore, Plaintiff did not commit an assaultive action. Plaintiff also alleges that Defendant Byrd's report was fabricated in order to cover up the assault against Plaintiff. Plaintiff filed an administrative appeal to Defendant Turner, who denied the appeal. In his first amended complaint, Plaintiff requested that his RVRs be expunged based on due process violations. Doc. [9]. He alleges that he lost good earned time, good earned time classes, and was placed in solitary confinement as a result of the RVR.

         In a response to Court order, Plaintiff elaborated on the medical care claim regarding his scalp condition. Doc. [10]. He explained that doctors prescribed a consult with a dermatologist on October 15, 2014. Dr. Woodall approved the specialty care on October 17, 2014. However, Plaintiff did not see a dermatologist until July 10, 2015 (nine months later). According to Plaintiff, this delay caused unbearable pain and a staph infection that caused hair loss and permanent disfigurement from scar tissue on his scalp. Plaintiff alleges that this delay was caused by Defendant Christopher Epps' policy, practice, and custom.

         In another response to Court order, Plaintiff described the conditions in solitary confinement. Doc. [23]. He stated that he is kept in lockdown 24 hours a day. The windows do not work. There is no fan in the cell and temperatures reach in excess of 110 degrees. The toilet-sink combination constantly gets stopped up and floods the cell. There are no televisions, educational programs, or church services. He is strip searched and shackled whenever he leaves his cell. Medical staff do not conduct sick calls. Inmates yell, scream and bang metal all night; and they throw feces. There is inadequate ventilation. There are not enough officers on duty. The food is always cold. The top-tier showers do not have lights. Rats constantly bother the inmates at night.

         Plaintiff filed a second amended complaint on July 8, 2016, alleging that Defendants were deliberately indifferent to a painful left testicle. Doc. [34]. According to Plaintiff, on August 3, 2015, he had an appointment with urologist Dr. Ross who diagnosed a “painful testicular mass”. Dr. Ross prescribed Mobic and a follow up exam. Plaintiff alleges that he did not receive proper follow up care. At some point, Plaintiff was prescribed Naproxen. Plaintiff also sued Defendants Perry, Banks, Fisher and Centurion based on the fact that they are responsible for overall medical treatment of inmates in the MDOC system.

         The undersigned conducted a screening hearing on April 12, 2017. Doc. [75]. Counsel for Defendants denied any knowledge of a “Dr. Zein”, who has been named as a defendant. Plaintiff stated that Dr. Zein works for the Office of Medical Compliance for MDOC. Id. at 11- 13. At the hearing, the Court gave Plaintiff until May 15, 2017, to file a proper motion to add Dr. Zein as a party. Id. at 14. Dr. Zein has not been located or served with process as of the date of this report and recommendation. Plaintiff has not filed any follow-up motions regarding the inclusion of Dr. Zein in this lawsuit.

         With respect to his scalp condition, Plaintiff testified that it is a pre-existing condition that reoccurred while incarcerated. Id. at 21-23. Previously, in 2012-13, a dermatologist had injected Plaintiff's scalp with steroids. Id. at 21. The dermatologist also placed Plaintiff “on antibiotics and shampoos”. Id. By June 2013, Plaintiff's scalp condition had cleared up. Id. at 22-23. At some point while incarcerated, Plaintiff's scalp condition reappeared. He asked to see a specialist in October 2014, but did not see the dermatologist until July 2015. Id. at 23. Plaintiff admitted that prison officials were giving him the “same treatment” as the dermatologist, but the condition kept getting worse because he was not receiving steroid shots to his scalp. Id. According to Plaintiff, Nurse Karen Deese said in October that Plaintiff needed the shots. Id. Eventually, Plaintiff was seen by a dermatologist on July 10, 2015, nine days after Plaintiff filed the instant complaint. Id. at 23-24.

         Plaintiff also testified with regard to the alleged assault of February 19, 2015. Id. at 24-26. According to Plaintiff, the assault resulted in a “de minimis back injury”. Id. at 26. Plaintiff testified that he did not receive due process during the disciplinary hearing for the RVR that resulted from the November 19, 2015, incident. Id. at 32. According to Plaintiff, he was not allowed to have witnesses testify on his behalf. Id. Furthermore, he was not present when prison officials searched his cell and found a knife for which he was disciplined. Id. at 32-33.

         During the screening hearing, Plaintiff asserted that he is not requesting monetary damages from anyone except Christopher Epps. Id. at 27, 38-39. He is simply requesting injunctive relief requiring MDOC to follow its policy and procedure of videotaping any use of force against inmates. Id. at 27. Although Plaintiff alleged in his complaint that he was placed in solitary confinement for two years, his testimony later confirmed that he was placed on “lockdown” and not solitary confinement. Id. at 29, 51-52. Plaintiff alleges unconstitutional conditions of confinement for the two years he spent in lockdown. Id. at 33-34.

         With respect to his testicular condition, Plaintiff testified that on August 3, 2015, Dr. Ross, an offsite urologist, diagnosed a painful testicular mass and prescribed follow-up treatment that prison officials failed to perform. Id. at 34-35. Plaintiff testified that the testicular mass has been present since he was a child and that it has been removed twice. Id. at 36. Apparently the mass returned. Dr. Ross prescribed Mobic and scheduled a follow-up appointment. Id. Plaintiff testified that the Mobic did not help his condition. Id. at 36-37. Plaintiff also complains he was not taken to his follow-up appointment after being transferred to Central Mississippi Correctional Facility. Id. at 36. Because of transfers between prison facilities, Plaintiff testified that his medical treatment was delayed. Id.

         After a review of the pleadings and screening hearing transcript, the undersigned finds that Plaintiff asserts the following claims: (1) excessive force relating to an incident of February 19, 2015; (2) due process violations relating to the RVR and disciplinary hearing from the February 19, 2015, incident; (3) inadequate medical care for Plaintiff's testicular condition; (4) inadequate medical care for Plaintiff's scalp condition; and (5) unconstitutional conditions of confinement in lockdown. Defendants Jaqueline Banks, Thomas Byrd, Marshall Fisher, Ronald King, Jacqueline Leverette, Gloria Perry, and Marshal Turner have filed a motion for summary judgment. Doc. [79]. Defendant Centurion (the medical care provider at SMCI) also has filed a motion for summary judgment. Doc. [82]. The motions were filed on August 9 and August 17, 2015, respectively. Plaintiff has not filed a response in opposition to the motions for summary judgment.

         The Court notes that Defendant Christopher Epps has been served with process but has not filed an answer. Defendant Christopher Luker also has been served with process but not answered. Apparently Luker is no longer employed with the MDOC and therefore is not represented by the Mississippi Attorney General's Office. Doc. [75] at 8-9, 15. On November 6, 2017, Plaintiff filed a notice of change of address. Doc. [88]. He is no longer incarcerated at SMCI but has been moved to the Mississippi State Penitentiary at Parchman. Id. Plaintiff also filed a motion for appointment of counsel on November 6, 2017. Doc. [87].

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