United States District Court, N.D. Mississippi, Greenville Division
VADELL C. JOHNSON PLAINTIFF
KELVIN WILLIAMS, et al. DEFENDANTS
M. BROWN, UNITED STATES DISTRICT JUDGE
pro se prisoner action is before the Court for consideration
of the Report and Recommendation issued by United States
Magistrate Judge David A. Sanders, Doc. #13; and Vadell C.
Johnson's motion for enlargement of time to object, Doc.
about February 27, 2015, Vadell C. Johnson filed a pro se
complaint in this Court against Kelvin Williams, Ora Starks,
Gloria Westley, Joel Norvell, James Carmichael, “Ms.
Tate, ” “Mr. Hogan, ” “Mr. Simpson,
” and “Ms. Golliday.” Doc. #1. The
complaint alleges the various defendants violated
Johnson's Eighth Amendment rights by failing to provide
him medical treatment for a broken hand.
25, 2015, United States Magistrate Judge David A. Sanders
held a Spears hearing. On February 1, 2017, Judge
Sanders issued a Report and Recommendation
(“R&R”) recommending that Johnson's
Eighth Amendment claims against Tate, Hogan, Simpson,
Norvell, Carmichael (collectively, “Prison
Guards”), and Golliday be dismissed for failure to
state a claim; and that Johnson's claims against
Williams, Starks, and Westley be dismissed for failure to
state a claim because § 1983 claims cannot be based upon
a theory of “respondeat superior.” Doc.
#13 at 7-8. The R&R warned that “[o]bjections must
be in writing and must be filed within fourteen (14)
days” and that a “failure to file written
objections … within [such time frame] after being
served with a copy [of the R&R] shall bar that party,
except on grounds of plain error, from attacking on appeal
the unobjected-to proposed factual findings and legal
conclusions accepted by the district court.”
Id. at 9 (internal quotation marks omitted). A copy
of the R&R was mailed to Johnson on February 1, 2017.
party filed objections to the R&R within fourteen days of
its filing. Over nine months later, on November 20, 2017, the
Court received from Johnson a letter advising of his change
of address. Doc. #14. On December 1, 2017, the Court received
a motion from Johnson asking for an enlargement of time to
object to the R&R. Doc. #15.
Motion for Enlargement of Time
motion for enlargement of time, Johnson requests
“thirty (30) days to file his objections due to him
being an inmate of the Mississippi Corr. Fac. in Rankin
County and by it being the holidays.” Doc. #15 at 4.
Johnson represents that he “did not receive the
Court[']s Report & Recommendation from his former
attorney until November 13, 2017, ” and that “he
had no clue that the Court[']s Report existed.”
Id. at 3. In his letter to the Clerk regarding his
motion, Johnson further represents that “[o]n November
13, 2017, I received a letter from my Attorney Azki Shah
along with a copy of the Court[']s Report telling me I
only had fourteen (14) days from the date of the Report to
file objections … and that he would no longer be in a
position to represent me.” Id. at 1 (ellipsis
to Johnson's representations, no counsel of record has
appeared on his behalf in this case. Johnson has proceeded pro se
from the very beginning and, accordingly, each and every
order or other document entered by the Court has been mailed
to Johnson at his address on file, as updated by Johnson.
Interestingly, Johnson does not explain how the attorney he
references came to know of and/or receive the R&R. Given
that Johnson has never had counsel of record, the Court must
presume that Johnson received and/or was aware of the R&R
before November 13, 2017, and communicated the fact of the
R&R to such attorney. Under these circumstances, Johnson
has demonstrated neither good cause nor excusable neglect to
justify the enlargement of time sought.
his motion for time to file objections to the R&R is
Report and Recommendation
Standards of Review
R&R recommended dismissal of Johnson's claims under
the screening provision of the Prison Litigation Reform Act
(“PLRA”), which requires dismissal where a
prisoner fails to a state a claim upon which relief may be
granted. This recommendation implicates two standards of
review-the standard for reviewing a report and recommendation
and the standard for reviewing allegations under the PLRA.
Review of Report and Recommendation
objections to a report and recommendation have been filed, a
court must conduct a “de novo review of those portions
of the ... report and recommendation to which the Defendants
specifically raised objections. With respect to those
portions of the report and recommendation to which no
objections were raised, the Court need only satisfy itself
that there is no plain error on the face of the
record.” Gauthier v. Union Pac. R.R.
Co., 644 F.Supp.2d 824, 828 (E.D. Tex. 2009) (citing
Douglass v. United Serv. Auto. Ass'n, 79 F.3d
1415, 1428-29 (5th Cir. 1996)).
plain error review, the reviewing court reverses “only
where there is ‘error that is plain and that affects
substantial rights.'” Delgado v. Reef Resort
Ltd., 364 F.3d 642, 646 (5th Cir. 2004) (quoting
United States v. Olano, 507 U.S. 725, 732 (1993)).
Plain error must meet four requirements: “(1) an error;
(2) that is clear or plain; (3) that affects the
[party]'s substantial rights; and (4) that seriously
affects the fairness, integrity or public reputation of
judicial proceedings.” United States v.
Vasquez, 216 F.3d 456, 459 (5th Cir. 2000); see
Douglass, 79 F.3d at 1424. “Plain” is
defined as “clear” or “obvious” under
current law. Crawford v. Falcon Drilling Co., 131
F.3d 1120, 1125 (5th Cir. 1997); see Brown v. Bryan
Cty., 219 F.3d 450, 466 (5th Cir. 2000).
“‘[A]ffects substantial rights' means that
‘the error must have been prejudicial.'”
Brown, 219 F.3d at 466 (quoting Olano, 507
U.S. at 734).
Review under PLRA
to the PLRA, a “court shall dismiss [a] case at any
time if the court determines that … the action
… fails to state a claim on which relief may be
granted.” 28 U.S.C. § 1915(e)(2). Dismissals under
this provision are reviewed under the same standard as
dismissals under Federal Rule of Civil Procedure 12(b)(6).
Legate v. Livingston, 822 F.3d 207, 209-10 (5th Cir.
considering the sufficiency of Johnson's complaint then,
the Court must accept the facts alleged in the complaint as
true and construe them in the light most favorable to
Johnson. Green v. Atkinson, 623 F.3d 278, 280 (5th
Cir. 2010) (per curiam). The Court must also accept as true
Johnson's testimony at the Spears hearing.
See Eason v. Holt, 73 F.3d 600, 603 (5th Cir. 1996)
(Spears hearing “amplif[ies] the allegations
in the prisoner's complaint” and therefore
“becomes a part of the total filing by the pro se
applicant”). Thus, Johnson's suit can only be
dismissed for failure to state a claim if the facts, taken as
true, do not “state a claim that is plausible on its
face.” Amacker v. Renaissance Asset Mgmt. LLC,
657 F.3d 252, 254 (5th Cir. 2011).
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). This includes the basic requirement that the facts
plausibly establish each required element for each legal
claim. Id. at 681-83; Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 557 (2007). However, a complaint
is insufficient if it offers only “labels and
conclusions” or “a formulaic recitation of the
elements of a cause of action.” Iqbal, 556
U.S. at 678 (quoting Twombly, 550 U.S. at 555).
Friday, January 9, 2015, at about 5:30 p.m., Johnson broke
his hand in a fight while housed at Bolivar County Regional
Correctional Facility. Doc. #1 at 5. Correctional Officers
Hogan and Tate witnessed the altercation. Id. at 6.
Immediately after the fight, Johnson's hand
“started hurting and swelling severely” and he
“couldn't make a fist.” Id. When he
showed his hand to Officers Hogan, Tate, and Simpson, his
“knuckle was clearly push[ed] back to [his] wrist [and
his] hand had turned blueish purple.” Id. at
5, 6. At the Spears hearing, Johnson stated that you
could see that his hand was broken, which he repeatedly told
and showed the officers, and that the officers refused to
call the nurse during their shift and ignored his complaints.
Doc. #13 at 5. Johnson ...