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Wedgeworth v. State

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

March 23, 2018

WILEY DAVID WEDGEWORTH, # 144574 PLAINTIFF
v.
STATE OF MISSISSIPPI, et al. DEFENDANTS

          MEMORANDUM OPINION AND ORDER OF PARTIAL DISMISSAL

          CARLTON W. REEVES, UNITED STATES DISTRICT JUDGE.

         This 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 disturbing.

         However, 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.

         BACKGROUND

         Wedgeworth 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.

         Wedgeworth 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 31).

         Since 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.[1] 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.

         First, 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.

         Next, 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.

         Wedgeworth 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.

         On 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.

         Plaintiff 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.

         On 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.

         The 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.

         On 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.

         The 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.

         Besides 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.[2] 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.

         Wedgeworth proceeds in this Court, specifically invoking § 1983 and state law. He seeks damages and injunctive relief.

         DISCUSSION

         The 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.

         Wedgeworth 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.

         State and MDOC

         First, 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 the RVRs.

         First, § 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.

         Second, 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.

         GEO and its Employees

         Wedgeworth 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 ...


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