United States District Court, N.D. Mississippi, Greenville Division
MEMORANDUM OPINION AND ORDER
M. VIRDEN UNITED STATES MAGISTRATE JUDGE.
January 8, 2018, plaintiff Nevin Kerr Whetstone, an inmate in
the custody of the Mississippi Department of Corrections
(“MDOC”) who is housed at the Mississippi State
Penitentiary at Parchman (“Parchman”), appeared
before the court for a hearing pursuant to Spears v.
McCotter, 766 F.2d 179 (5th Cir.1985), to determine
whether there exists a justiciable basis for his claim filed
under 42 U.S.C. § 1983. A plaintiff's claim will be
dismissed if “it lacks an arguable basis in law or
fact, such as when a prisoner alleges the violation of a
legal interest that does not exist.” Martin v.
Scott, 156 F.3d 578 (5th Cir. 1998) (citations omitted).
The Prison Litigation Reform Act (“PLRA”) applies
to this case because the plaintiff was incarcerated when he
filed this lawsuit.
to Nevin Whetstone's complaint, as clarified at his
Spears hearing, he suffered an injury to his
sacrum when he was in middle school that caused
his sacrum to thereafter slip out of place approximately once
a month. Whetstone claims that this problem did occur, it was
remedied by having a medical provider manipulate his sacrum
back into place. Once Whetstone was imprisoned, however, he
did not receive the regular manipulations to his sacrum, and
in 1990, it “locked” into place, causing him
suffer a lower tract problem and, eventually, a spinal
claims he has continually sought treatment from an osteopath,
chiropractor, and/or an orthopedic surgeon in the
twenty-seven years he has been incarcerated, and that he has
never seen an off-site doctor or been provided with any
tests. Whetstone states that the penitentiary medical
providers who seem sympathetic to his condition have told him
that the authorizing officials will not approve a referral to
a specialist, while others, such as the defendant medical
professionals at Parchman, “minimize” and
“downplay” his condition. Whetstone maintains
that although he has been given an x-ray and his chart now
indicates that he has “abnormal architecture, ”
no medical professional he has seen in the past three years
has prescribed him any treatment. As a result, Whetstone
contends, more vertebrae have “frozen, ” and he
is growing increasingly immobile.
claims that he twice wrote MDOC Commissioner Pelicia Hall
complaining of the denial of adequate medical care, and that
she did not respond to him or in any way acknowledge receipt
of his letters. He also contends that the he filed a
grievance with the Administrative Remedies Program
(“ARP”) Director Richard Pennington in January
2017, and that Pennington's only response was to send
Whetstone a form letter stating that he needed to be more
on or about October 25, 2017, Whetstone filed this action
under § 1983, Title II of the Americans with
Disabilities Act “(ADA”) and Section 504 of the
Rehabilitation Act (“RA”) against defendants
Pelicia Hall, Richard Pennington, Angela Brown, Pam Jarrett,
Dr. Woodard, and Nurse Hill. Whetstone asks the court to
order the State to afford him a medical release and award him
compensatory damages for the violations of his statutory and
Defendants Entitled to Dismissal
only complaint against Commissioner Pelicia Hall is that she
refused to respond to his letters. She has no involvement in
the allegations contained in this lawsuit beyond her position
as Commissioner and cannot be subjected to liability in this
action absent some personal wrongdoing. See Oliver v.
Scott, 276 F.3d 736, 742 & n.6 (5th Cir. 2002)
(holding § 1983 does not “create supervisory or
respondeat superior liability”); Thompson
v. Steele, 709 F.2d 381, 382 (5th Cir. 1983)
(“Personal involvement is an essential elements of a
civil rights cause of action.”). Therefore, Pelicia
Hall should be dismissed as a defendant.
complains that Richard Pennington failed to respond to his
grievances in a proper manner. However, to state a valid
claim under 42 U.S.C. § 1983, a plaintiff must
“allege a violation of a right secured. . . by the
Constitution or laws of the United States” by a state
actor. Rogers v. Boatright, 709 F.3d 403, 407 (5th
Cir. 2013). Inmates have no constitutional or federal right
to a prison grievance procedure. See Adams v. Rice,
40 F.3d 72, 75 (4th Cir.1994). Therefore, an inmate cannot
possess a right to have a grievance resolved. See Geiger
v. Jowers, 404 F.3d 371, 374-75 (5th Cir.2005).
Accordingly, Richard Pennington should be dismissed as a
Spears hearing, Whetstone clarified that his
complaints concerning Dr. Woodard concerned events that
occurred between 1996 to 2009, while Whetstone was housed in
a different facility. The court notes that in this §
1983 action, it must apply Mississippi's general
three-year statute of limitations for personal injury
actions. See Wallace v. Kato, 549 U.S. 384, 387
(2007); Owens v. Okure, 488 U.S. 235, 250 (1989);
see also Miss. Code Ann. § 15-1-49; James
v. Sadler, 909 F.2d 834, 836 (5th Cir. 1990). The
accrual period for an injury “begins to run the moment
the plaintiff becomes aware that he has suffered an injury or
has sufficient information to know that he has been injured.@
Pitrowski v. City of Houston, 237 F.3d 567, 576 (5th
Cir. 2001) (internal citations and quotations omitted). Here,
Whetstone was clearly aware of his need for medical treatment
between 1996 and 2009, but did not bring an action against
Dr. Woodard until October of 2017. Therefore, the statute of
limitations bars his complaints against Dr. Woodard, and Dr.
Woodard should be dismissed as a defendant.
requests that the court order his medical release. However,
Whetstone cannot obtain release from prison as a form of
relief in a civil rights lawsuit. See, e.g., Preiser v.
Rodriguez, 411 U.S. 475, 490 (1973) (“Congress has
determined that habeas corpus is the appropriate remedy for
state prisoners attacking the validity of the fact or length
of their confinement, and that specific determination must
override the general terms of § 1983.”).
Accordingly, this request for relief will be denied.