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Weathington v. Clark

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

March 7, 2018

JEROME WEATHINGTON PLAINTIFF
v.
DONOVAN CLARK, ET AL. DEFENDANTS

          OPINION AND ORDER

          DAVID A. SANDERS UNITED STATES MAGISTRATE JUDGE

         On 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.

         I. Plaintiff's Allegations & Parties to Suit

         On 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 unit.

         The 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 outside.

         Weathington 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.

         Weathington 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.

         After 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.

         On 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 Gibbs.

         II. Failure to Intervene

         Weathington 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)).

         Weathington 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.

         This 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 action.

         Similarly, 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 ...


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