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Burgess v. Little

United States District Court, S.D. Mississippi, Northern Division

March 5, 2018

MARK ANTHONY BURGESS, MDOC # 77647 PLAINTIFF
v.
MR. O. LITTLE et al. DEFENDANTS

          REPORT AND RECOMMENDATION

          JOHN C. GARGIULO UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court sua sponte, following a Spears hearing, for evaluation pursuant to 28 U.S.C. § 1915A.[1] 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.

         BACKGROUND

         Plaintiff 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.

         Plaintiff 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 complaints.

         Plaintiff 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)).

         Plaintiff 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).

         The 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.

         Plaintiff 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.

         DISCUSSION

         A. Screening and 42 U.S.C. § 1983

         As a 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. ยง 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 ...


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