United States District Court, S.D. Mississippi, Northern Division
REPORT AND RECOMMENDATION
C. GARGIULO UNITED STATES MAGISTRATE JUDGE.
matter is before the Court sua sponte, following a
Spears hearing, for evaluation pursuant to 28 U.S.C.
§ 1915A. Pro se Plaintiff Mark Anthony
Burgess, a postconviction inmate in the custody of the
Mississippi Department of Corrections (MDOC), alleges
constitutional violations. Having considered the record,
Plaintiff's testimony during the Spears hearing,
and applicable law, the undersigned recommends dismissal of
several of Plaintiff's claims as frivolous or for failure
to state a claim upon which may be granted.
is currently incarcerated at East Mississippi Correctional
Facility (EMCF) in Meridian, Mississippi. He filed suit on
January 3, 2017, in the Circuit Court of Lauderdale County,
Mississippi, against numerous defendants, some medical
personnel at EMCF and some wardens and other security
officials at EMCF. Defendants Frank Shaw, Norris Hogans, and
Simone Jones removed the action to this Court based upon
federal question jurisdiction. A Spears hearing was
held on June 1, 2017, where Plaintiff was afforded ample
opportunity to orally and fully present his allegations.
is fifty-four years old and serving life without parole. He
refers to himself as a mental health offender with bipolar
symptoms and many serious health issues. (ECF No. 1-1, at 8).
Plaintiff's primary allegation is that he has not
received adequate medical care at EMCF for chronic kidney,
abdominal, and shoulder pain. Intertwined with this issue is
Plaintiff's allegation that he has been denied a
grievance process at EMCF that is responsive to his medical
previously filed suit against EMCF officials, raising similar
or identical claims in Burgess v. Reddix, No.
3:13-cv-1006-CWR-FKB, 2014 WL 1050753 (S.D.Miss. Mar. 14,
2014). In Reddix, United States District Judge
Carlton W. Reeves adopted the Report and Recommendation of
United States Magistrate Judge F. Keith Ball, who found that
the defendants were entitled to summary judgment because
“Plaintiff was given medical treatment, just not as
often or exactly the type he wanted.” 2014 WL 1050753,
at *4. Plaintiff was expressly advised by this ruling that
“[f]ailed medical treatment, negligence, neglect, nor
medical malpractice give rise to a claim under §
1983.” Id. (citing Varnado v.
Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991). As he does
in this case, Plaintiff also argued in Reddix that
the grievance process at EMCF was inadequate and not
responsive to his medical needs. Plaintiff's claim
regarding the grievance procedure was also dismissed in
Reddix, with the Court informing Plaintiff that he
has “no constitutional right to a grievance procedure,
and has no due process liberty interest right to having his
grievance resolved to his satisfaction.” Id.
at 7 (citing Geiger v. Jowers, 404 F.3d 371, 374-75
(5th Cir. 2005); Jones v. Shabazz, No. H-06-1119,
2007 WL 2873042, at *21 (E.D. Tex. Sept. 28, 2007)).
appealed the judgment in Reddix to the Fifth Circuit
Court of Appeals. The Fifth Circuit affirmed, finding:
The record and Burgess's allegations could not lead to
the conclusion that the defendants “refused to treat
him, ignored his complaints, intentionally treated him
incorrectly, or engaged in any similar conduct that would
clearly evince a wanton disregard for any serious medical
needs. Domino v. Texas Dep't of Criminal
Justice, 239 F.3d 339, 350 (5th Cir. 2014). Burgess does
not have a constitutional right to have his grievances
resolved in his favor or to have his claims reviewed pursuant
to a grievance process that is responsive to his perceived
injustices; thus, the denials of his grievances do not
implicate his constitutional rights or give rise to a 42
U.S.C. § 1983 claim. Geiger v. Jowers, 404 F.3d
371, 374 (5th Cir. 2005); see also Stauffer v.
Gearheart, 741 F.3d 574, 587 (5th Cir. 2014).
Burgess v. Reddix, No. 14-60234, 609 Fed.Appx. 211,
212 (5th Cir. 2015).
Fifth Circuit issued its opinion in Reddix on July
2, 2015. Plaintiff filed this suit on January 27, 2017, a
year and a half later. Plaintiff stated under oath at the
omnibus hearing that the medical claims in this case are a
continuation of the complaints that he advanced in
Reddix. Plaintiff testified at the omnibus hearing
that he filed this suit because the prior suit did not do any
good. Plaintiff maintains that he is still trying to get
proper medical treatment.
believes that Defendants have conspired to retaliate against
him because he filed suit in Reddix. Plaintiff
maintains that he has been falsely accused of rule
violations, and someone at EMCF has tampered with his legal
mail. Plaintiff alleges that excessive force has been used
against him twice. He complains regarding being placed in
segregation without a disciplinary hearing.
Screening and 42 U.S.C. § 1983
prisoner seeking redress from an officer or employee of a
governmental entity, Plaintiff's complaint is subject to
preliminary screening pursuant to 28 U.S.C. § 1915A.
Section 1915A(b) provides for sua sponte dismissal
of a complaint, or any portion thereof, if the Court finds it
is frivolous or malicious, if it fails to state a claim upon
which relief may be granted, or if it seeks monetary relief
against a defendant who is immune from such relief. The
screening provisions in 28 U.S.C. § 1915A do not affect
the rule that a court reviewing a complaint must accept as
true all allegations of material fact and construe them in
the light most favorable to the plaintiff, or ...