United States District Court, S.D. Mississippi, Northern Division
MEMORANDUM OPINION AND ORDER OF PARTIAL
CARLTON W. REEVES, UNITED STATES DISTRICT JUDGE.
matter is before the Court sua sponte. Pro se Plaintiff Wiley
David Wedgeworth is incarcerated with the Mississippi
Department of Corrections (“MDOC”), and he brings
this action challenging a denial of parole eligibility, the
conditions of his confinement, and Rule Violation Reports
(“RVRs”). The Court has considered and liberally
construed the pleadings. Many of the allegations are
as set forth below, Defendants State of Mississippi; MDOC;
GEO; Management and Training Corporation (“MTC”);
Wardens Grimmes and Jackson; Frank Shaw; Jerry Buscher;
Hubert Davis; Officers Lucy, Q. Dukes, Hardy, Pulliam,
Wesley, and Taha; Investigator Alexander; Lisa Herndon;
Derrick Smith; Frank Young; Lieutenant Thomas, also known as
Captain Thomas; Lieutenants Mason, Smith, and T. Donald;
Quincy Moffet; Sergeant Ruffin; CERT Officer Holloman; Lucy
Martin; Milton Blakely; Gary Holton; Sheneice Evans; Doris
McDonald; Captains Meryl and Brown; Richard Pennington; Jerry
Williams; Rusell Houston; Unqurie Smith; Shirley Inge; Mental
Health Counselor Jackson; Latoyah Gaines; and K-9 Officers
Woolman and Luke are dismissed.
filed this action on September 6, 2017. He is currently
serving three sentences. The 65 Defendants include the State
of Mississippi, MDOC, GEO, MTC, several of their employees,
and two prison nurses. Wedgeworth complains about a denial of
parole eligibility and various conditions of his confinement
and RVRs since 2010.
was convicted of grand larceny and burglary of an unoccupied
dwelling, and on March 22, 2010, the Harrison County Circuit
Court sentenced him to serve nine years on each count,
concurrently. He was nineteen years old at the time. Less
than seven months later, he was convicted of another burglary
and sentenced, as a habitual offender, to serve two years,
consecutive to the March sentences. He claims that even
though the March sentences were parole eligible, MDOC and
Defendants Commissioners Christopher B. Epps, Marshall
Fisher, and Pelicia Hall revoked his parole eligibility on
the first two sentences, solely based on the later, habitual
sentence. On October 5, 2016, Defendant Richard Pennington
allegedly denied Plaintiff's administrative grievance
“on illegal incarceration.” (Am Compl. [18-1] at
Wedgeworth's incarceration, he has served time at Walnut
Grove Youth Correctional Facility, East Mississippi
Correctional Facility (“EMCF”), Wilkinson County
Correctional Facility, South Mississippi Correctional
Institution (“SMCI”), and Central Mississippi
Correctional Facility (“CMCF”). GEO was a private
contractor that, on behalf of MDOC, ran Walnut Grove and,
through June 30, 2012, EMCF. After that point, MTC was the
private contractor that ran EMCF and Wilkinson. He contends
that his time at all five institutions have been marred by
various attacks by inmates and officers; retaliation; denials
of medical treatment, water, a mattress, and clothes;
unsanitary living conditions; and RVRs.
Wedgeworth alleges that between May 24, 2010 and April 3,
2015, he was subject to multiple physical and sexual assaults
by fellow inmates at each of the five prisons. One such
alleged attack occurred at Walnut Grove, on February 23,
2012, and was purportedly facilitated by Defendant Officer
Lucy. Then until March 12, Wedgeworth claims she denied him
medical treatment and retaliated against him for seeking
treatment. He contends he was eventually treated and put on a
list to see a dentist, because his teeth had been injured
during the altercation. Wedgeworth maintains, however, that
he was transferred before seeing the dentist,
“subjecting him to excruciating pains when eating and
restricting Plaintiff from being able to consume cold foods
or beverages . . . until May or June 2014.”
Id. at 14. Another one of the alleged attacks, at
EMCF, was in May of 2013 and happened despite the fact that
Defendant Captains Frank Young and Thomas allegedly were on
notice beforehand. Also, between the dates of March 21, 2014
and January 30, 2015, while at Wilkinson, Defendant CERT
Officer George allegedly encouraged other inmates multiple
times to stab Wedgeworth while he was in handcuffs. It is not
clear whether he was ever stabbed. He also claims during this
time an inmate orderly was poisoning him and had burned him.
Wedgeworth allegedly told Defendants Majors Walker and L.
Pena and Captain Ella Scott that he was in fear for his life
at the prison but they allegedly “refused to listen,
” and apparently Walker is also accused of knowing that
gang members had put a hit on Plaintiff. (2d Resp. Ex. [25-1]
at 59, 92). The latest alleged inmate attack occurred on
April 2 at SMCI. Wedgeworth claims he asked Defendant
Sheneice Evans to “press charges on [t]his assailant,
” but she did not. (Am Compl. [18-1] at 25). This list
of alleged attacks is not exhaustive.
Wedgeworth asserts that, at various points between March 12,
2012 and October 25, 2017, he was locked in a cell for weeks
at a time without showers or recreation and at different
times had no working water, sink or toilet in his cell.
During part of this time he was also allegedly subjected to
black smoke from fires set on the zone by other inmates and
was denied medical treatment for the smoke. On July 12, 2013,
Wedgeworth alleges that Defendants Warden Jerry Buscher,
Derrick Smith, and Officer Pulliam sent him to the lock down
unit for seven days, only in underwear and shoes, with no
hygiene items, mattress, or blanket. On June 22, 2015,
Defendants Mark Davis and Captain Reed allegedly denied
Wedgeworth his 90 day hearing to determine if he was eligible
to come off of long term segregation. Wedgeworth contends
that on July 27, Defendant Milton Blakely verbally harassed
him. Between July and August 5, Wedgeworth placed in lockdown
at SMCI with no water, in a “roach infested filthy
cell, ” he says. Id. at 27. During this latest
stint, Defendants Jimmie Rogers, Jennifer Smith Roberts,
Anthony G. Beasley, Captain Johnson, and Lieutenant Dixon
were allegedly aware that he was without water. Wedgeworth
claims that he was subjected to a roach infestation the
entire time during segregation at SMCI, which included the
bugs crawling on him and his food tray during meals.
next claims that, on October 5, 2015, he informed Defendant
Officer Wesley that another inmate was trying to steal his
laundry. Wesley “check[ed] out Plaintiff's laundry,
yet left it.” Id. at 29. The inmate then
allegedly stole his laundry. Wedgeworth alleges that he then
got into an altercation with him, and Wedgeworth was placed
in segregation for four days, without a property receipt.
When he emerged, some of his other property was missing. When
he told Defendant Captain Meryl, he allegedly just laughed.
September 9, 2016, Wedgeworth purportedly informed Defendants
Marshal Turner, Warden K. Blount, and Reed that he had been
without state issued clothing and a mattress since November
of 2015, but he still received neither. Finally, in June of
2017, Wedgeworth was allegedly subjected to unsanitary
conditions due to an inmate flooding, and throwing feces and
garbage at and into, his cell, to which he contends Roberts
was indifferent. Wedgeworth claims that Mark Davis punished
him with property restriction and not the offending inmate.
also claims officers beat him. On October 16, 2012, while
housed at EMCF, he was talking to a Lieutenant, when Captain
Young, Thomas, Officer Pulliam, and Defendants Lieutenant
Mason and Officer Q. Dukes allegedly subjected Wedgeworth to
excessive force. Mason and Thomas then purportedly denied him
medical treatment and locked him in his cell without
toiletries, a mattress, eating utensils, clothes, or hygiene
items for ten days. According to the pleadings, sometime
around January 1, 2013, Young had an inmate beat Wedgeworth.
August 22, 2013, Wedgeworth claims Defendant CERT Officer
Holloman and Thomas maced him seven consecutive times through
his cell's tray hole. They and Defendant Nurses Unqurie
Smith and Shirley Inge allegedly denied him medical treatment
afterwards. Back in his cell, Wedgeworth claims that there
was water mixed with mace, one inch deep in his cell, and his
bed had been maced. He contends that he could not breathe
from the pain and that he injured his head. Thomas,
Lieutenant Mason, Defendant Lieutenant T. Donald, Buscher,
Derrick Smith, and Defendant Quincy Moffet allegedly still
refused him medical treatment. Wedgeworth further contends he
was left naked in these conditions, with blood caked to his
hair, for two days and was forced to sleep on his table. He
was then taken to the hospital, in bloody clothes, and a
laceration on his head was stitched. Afterwards, he claims he
was brought back to the same cell and again stripped naked
until August 29.
next alleged excessive force incident occurred on May 12,
2015, while Wedgeworth was being escorted in restraints, to
the SMCI infirmary, by Defendant Lieutenant Denise Brewer,
Rogers and Defendant Officer Wolff. Wedgeworth claims Rogers,
Brewer, and Defendant Joy Ross beat him for no reason and
Wolff did not intervene.
November 7, 2015, while at CMCF, Wedgeworth claims that
Defendant K-9 Officer Brown slapped and choked him “for
accidentally pushing the collect phone over.”
Id. at 29-30.
next alleged use of force incidents occurred at SMCI.
Wedgeworth claims that Mark Davis would repeatedly refer to
him in racially and sexually derogatory terms. Then, on April
21, 2016, Wedgeworth alleges that Mark Davis grabbed him,
twisted his arm, and slapped him through his cell bars,
“calling Plaintiff several vulgar racial derogatories
[sic].” Id. at 30. On December 15, Mark Davis
allegedly sprayed him twice in the face with a fire
extinguisher and then “viciously and maliciously
attack[ed]” him, while Defendant Officer Hutchison and
Rogers were present. Id. at 31. When Wedgeworth
filed a grievance on this incident, Pennington allegedly
declined to process the grievance as a sensitive issue.
these incidents, Wedgeworth likewise received multiple RVRs
between 2012 and 2017. Some resulted in lost earned time;
some did not. RVRs # 1420367, 1420370, 1420662, 1436480,
1436481, 1436482, 1452724, 1453286, and 1453320 resulted in
lost earned time. Of the ones that resulted in lost earned
time, some were reversed. RVR # 1420367 was reversed on December
26, 2013, but MDOC allegedly still has not restored the lost
earned time associated with that particular RVR. RVR #
1420662 was reversed January 21, 2014.
proceeds in this Court, specifically invoking § 1983 and
state law. He seeks damages and injunctive relief.
Prison Litigation Reform Act of 1996, applies to prisoners
proceeding in forma pauperis in this Court. One of
the provisions reads, “the court shall dismiss the case
at any time if the court determines that . . . the action . .
. (i) is frivolous or malicious; (ii) fails to state a claim
on which relief may be granted; or (iii) seeks monetary
relief against a defendant who is immune from such
relief.” 28 U.S.C. § 1915(e)(2)(B). The statute
“accords judges not only the authority to dismiss a
claim based on an indisputably meritless legal theory, but
also the unusual power to pierce the veil of the
complaint's factual allegations and dismiss those claims
whose factual contentions are clearly baseless.”
Denton v. Hernandez, 504 U.S. 25, 32 (1992).
“[I]n an action proceeding under [28 U.S.C. §
1915, a federal court] may consider, sua sponte, affirmative
defenses that are apparent from the record even where they
have not been addressed or raised.” Ali v.
Higgs, 892 F.2d 438, 440 (5th Cir. 1990).
“Significantly, the court is authorized to test the
proceeding for frivolousness or maliciousness even before
service of process or before the filing of the answer.”
Id. The Court has permitted Wedgeworth to proceed
in forma pauperis in this action. The Complaint is
subject to sua sponte dismissal under § 1915.
asserts claims under § 1983 and state law, concerning
his parole eligibility, RVRs, and conditions of his
confinement. Generally, he sues the State, MDOC, GEO, MTC,
their employees, and two nurses.
Wedgeworth sues the State and MDOC under § 1983 and the
Mississippi Constitution for allegedly depriving him of
parole eligibility, ex post facto. These two are also sued
under § 1983 for the various conditions of
Wedgeworth's confinement from 2010 to present as well as
§ 1983 provides:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State . . . subjects, or
causes to be subjected, any citizen of the United States . .
. to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the
party injured in an action at law, suit in equity, or other
proper proceeding for redress. . . .
42 U.S.C. § 1983. The State of Mississippi is not
amenable to suit under this statute, because “a State
is not a person within the meaning of § 1983.”
Will v. Mich. Dep't of State Police, 491 U.S.
58, 64 (1989). This holding likewise applies to “any
governmental entities that are considered ‘arms of the
State' for Eleventh Amendment purposes.”
Id. at 70. MDOC is considered an arm of the State of
Mississippi. Miss. Code Ann. § 47-5-1; Scott v.
Miss. Dep't of Corrs., No. 2:05cv2159-KS-JMR, 2006
U.S. Dist. LEXIS 43683 at *2 (S.D.Miss. June 12, 2006).
Therefore, the § 1983 claims against the State and MDOC
are dismissed with prejudice.
to the extent the State and MDOC are sued under state law,
the Mississippi Tort Claims Act does not waive the
State's Eleventh Amendment immunity “from suit in
federal court.” Miss. Code Ann. § 11-46-5(4).
Therefore, the state law claims against the State and MDOC
are dismissed without prejudice.
and its Employees
sues GEO under “the laws of Mississippi as well as the
U.S. Constitution, ” for incidents occurring at Walnut
Grove and EMCF prior to July 1, 2012. (Am. Compl. [18-1] at
42). GEO employee Officer Lucy is sued under § 1983. She
is accused of an alleged failure to protect on February 23,
2012, and a denial of medical treatment and retaliation until
March 12. Defendant Investigator Alexander is alleged to ...