United States District Court, N.D. Mississippi, Greenville Division
OPINION AND ORDER
A. SANDERS UNITED STATES MAGISTRATE JUDGE
March 1, 2018, Jerome Weathington, a federal inmate currently
housed at the Mississippi State Penitentiary
(“MSP”), 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.
Plaintiff's Allegations & Parties to Suit
August 12, 2015, Weathington was housed in Unit 29G at the
Mississippi State Penitentiary (“MSP”) under
protective custody. According to Weathington, he and his
cellmate had been arguing in the days prior, and Weathington
wanted to move cells to avoid any physical conflict. When
Weathington left his cell to take a shower that day, he asked
Officer Donovan Clark if it would be possible to speak with
his case manager, Jacqanna L. Robinson. Clark denied the
request and ordered Weathington back into his cell.
Weathington refused to enter his cell. Weathington claims
that Clark then left the unit and returned with four
additional officers: Jonathan Brewer, Jeremy Page, and John
Does #1 and #2. At this time, there was a female correctional
officer, John Doe #3, controlling the doors in the tower
officers attempted to handcuff Weathington, and he refused,
again demanding to speak to Ms. Robinson. According to
Weathington, he was then sprayed in the face with mace by
either John Doe #1 or John Doe #2. Weathington ran. He claims
that the officers who had entered the unit moments earlier -
Clark, Brewer, Page, John Doe #1, and John Doe #2 - caught
him, knocked him to the ground, and began to beat him with
their fists, boots, and radios. Weathington asserts that he
passed out, but that before he lost consciousness, he heard
Ms. Robinson tell the officers that Weathington was a federal
inmate and that they would get into trouble. Weathington
claims that he was handcuffed at some point while he was
unconscious, and that he remembers being pushed through the
doors of the unit and falling, face-first, onto the ground
states that he was then placed in a transport van and driven
to the Unit 42 hospital. He claims that he was slapped by
either Page or Clark and was again rendered unconscious. He
asserts that he received stiches to the back of his head and
above his left eye at the hospital, and that he returned to
his housing unit with a sore wrist and a swollen face.
Weathington contends that when he got out of the van upon his
return to his housing unit, John Doe #4, the transport van
officer, hit him in the stomach.
maintains that sometime between August 13 and August 26,
2015, Clark came by Weathington's door and stated that he
and the other officers treated Weathington as they did
because Weathington had been showing off for other inmates.
the alleged assault against him, Weathington was written a
Rule Violation Report (“RVR”) for assaulting an
officer during the above-recounted events. He asserts that he
was not given a copy of the RVR, and that officers lied and
said he had refused the copy. Weathington obtained witness
statements, which he presented at his disciplinary hearing.
According to him, the hearing officer refused to consider the
statements and found him guilty of an allegedly false charge.
As punishment, Weathington spent 20 days in isolation and
lost 18 months of canteen and visitation privileges.
February 13, 2017, Weathington filed the instant lawsuit
alleging that Defendants subjected him to excessive force,
failed to intervene and protect him from excessive force,
failed to ensure that incidents were video recorded at MSP,
and violated his due process rights with regard to his
disciplinary charge. Named as Defendants in this suit are:
Officer Donovan Clark, Officer Jonathan Brewer, Officer
Jeremy Page, Officer John Doe #1, Officer John Doe #2,
Officer John Doe #3, Officer John Doe #4, Warden Timothy
Morris, Case Manager Jacwanna L. Robinson, and Shaniqua
Failure to Intervene
claims that Defendants John Doe #3, Jacwanna L. Robinson, and
Shaniqua Gibbs are constitutionally liable for failing to
intervene to stop the use of excessive force against him. A
defendant may face liability under § 1983 for failing to
intervene if he is present at the scene, saw excessive force
being used, was in a position to realistically prevent the
force, had time to prevent it, and failed to do so.
Spencer v. Rau, 542 F.Supp.2d 583, 595 (W.D. Tex.
2007) (citing Davis v. Rennie, 264 F.3d 86, 97-98
(1st Cir. 2001)).
claims that John Doe #3, the female correctional officer in
the control tower when the incident occurred, failed to
protect him. At his Spears hearing, however, he
stated that he did not see her exit the control tower and
assumes that she could have, and did not, intervene.
allegation fails to identify any facts that would allow a
finding of liability against her under prevailing legal
standards, and therefore, she will be dismissed from this
Weathington complains only that his case manager, Jacwanna
Robinson, instructed the officers that they would get into
trouble if they did not cease the alleged assault on
Weathington. Weathington does not allege that Robinson
participated in the attack, nor that she could have acted to
prevent or stop it. Rather, he claims that he was in and out
of consciousness during the alleged attack, and only
remembers this one statement Robinson made to the ...