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Johnson v. Williams

United States District Court, N.D. Mississippi, Greenville Division

January 3, 2018

VADELL C. JOHNSON PLAINTIFF
v.
KELVIN WILLIAMS, et al. DEFENDANTS

          ORDER

          DEBRA M. BROWN, UNITED STATES DISTRICT JUDGE

         This 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. #15.

         I Procedural History

         On or 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.

         On June 25, 2015, United States Magistrate Judge David A. Sanders held a Spears[1] 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.

         No 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.

         II Motion for Enlargement of Time

         In his 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 in original).

         Contrary to Johnson's representations, no counsel of record has appeared on his behalf in this case.[2] 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.

         Accordingly, his motion for time to file objections to the R&R is denied.

         III Report and Recommendation

         A. Standards of Review

         The 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.

         1. Review of Report and Recommendation

         Where 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)).

         Under 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).

         2. Review under PLRA

         Pursuant 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. 2016).

         In 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).

         “A 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).

         B. Factual Background

         On 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 ...


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