United States District Court, S.D. Mississippi, Southern Division
PROPOSED FINDINGS OF FACT AND RECOMMENDATION
H. WALKER UNITED STATES MAGISTRATE JUDGE.
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. . 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.
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).
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. . He
alleges that he lost good earned time, good earned time
classes, and was placed in solitary confinement as a result
of the RVR.
response to Court order, Plaintiff elaborated on the medical
care claim regarding his scalp condition. Doc. . 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.
another response to Court order, Plaintiff described the
conditions in solitary confinement. Doc. . 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.
filed a second amended complaint on July 8, 2016, alleging
that Defendants were deliberately indifferent to a painful
left testicle. Doc. . 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.
undersigned conducted a screening hearing on April 12, 2017.
Doc. . 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.
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.
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.
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.
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.
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. . Defendant Centurion
(the medical care provider at SMCI) also has filed a motion
for summary judgment. Doc. . 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
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.  at 8-9, 15. On
November 6, 2017, Plaintiff filed a notice of change of
address. Doc. . 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. .