United States District Court, S.D. Mississippi, Eastern Division
OPINION AND ORDER
MICHAEL T. PARKER, UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on Defendants' Motion for
Summary Judgment . Having considered the Motion , the
record, and the applicable law, the Court finds that the
Motion  should be granted and that this action should be
dismissed with prejudice.
March 30, 2017, Plaintiff Jermaine Stewart, proceeding
pro se and in forma pauperis, filed his
complaint pursuant to 42 U.S.C. § 1983. The allegations
in Plaintiff's complaint occurred while he was a
post-conviction inmate at the Wayne County Jail in
Waynesboro, Mississippi. Plaintiff is currently incarcerated in
the South Mississippi Correctional Institution. In his
complaint and as clarified by his testimony at the
Spears hearing,  Plaintiff asserts claims against
Defendants concerning the excessive use of force, the
conditions of his confinement, and the denial of due process.
to Plaintiff, on April 8, 2016, Defendant James T. Walley
searched Plaintiff's cell and discovered white shirts,
boxers, and socks. Walley began gathering these clothing
items, and Plaintiff asked Walley why he was taking the
clothes. Walley informed Plaintiff that the additional
clothes were contraband items. Walley attempted to throw the
clothes in the trash, but Plaintiff grabbed them. Thereafter,
Walley allegedly pushed Plaintiff two or three times toward
the cell door. Walley and Defendant Jason Purvis began
escorting Plaintiff down the hall to an isolation cell.
According to Plaintiff, Walley pushed him again, and
Plaintiff threw his shoulder back and told Walley to
“get off me; I'm walking on my own free
Purvis allegedly sprayed Plaintiff with pepper spray, and one
of the officers placed him in a chokehold. Walley and Purvis
then placed him in a medical evaluation cell. Plaintiff
requested that the officers clean the pepper spray off him,
so the officers returned with a water hose and sprayed him.
Plaintiff allegedly asked Walley and Purvis to take him to
the medical unit, but the officers refused.
to Plaintiff, he was wearing only underwear and socks and
requested clean clothes, but none were provided. Allegedly,
Plaintiff was held in the medical evaluation cell, which did
not have a shower, mattress, or blanket, for three or four
days. According to Plaintiff, he was not injured as a result
of being pushed or placed in a choke hold, but was in pain
for two days as a result of the pepper spray.
alleges that Defendant Sheriff Jody Ashley failed to properly
train Walley and Purvis and failed to properly respond to his
grievances regarding the actions of Walley and Purvis.
Plaintiff claims that all Defendants violated his due process
rights. According to Plaintiff, as a result of the incident
with Walley and Purvis, he was placed in a medical evaluation
cell for three or four days and then held in an isolation
cell for approximately one month. Additionally, Defendants
allegedly restricted his privileges for approximately one
month. Specifically, Plaintiff was unable to use the
telephone, have visitors, use the canteen/commissary,
participate in church services, or visit the law library for
about one month.Plaintiff alleges that these disciplinary
actions were taken against him without a proper hearing.
See Omnibus Order .
January 26, 2018, Defendants Walley, Purvis, and Sheriff
Ashley filed their Motion for Summary Judgment .
FOR SUMMARY JUDGMENT
motion for summary judgement will be granted when “the
record indicates that there is ‘no genuine issue as to
any material fact and that the moving party is entitled to
judgment as a matter of law.'” Causey v. Sewell
Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir.
2004) (citing Fed. R. Civ. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986)). “The moving
party must show that if the evidentiary material of record
were reduced to admissible evidence in court, it would be
insufficient to permit the nonmoving party to carry its
burden.” Beck v. Texas State Bd. of Dental
Examiners, 204 F.3d 629, 633 (5th Cir. 2000). The Court
is not permitted to make credibility determinations or weigh
the evidence. See Deville v. Marcantel, 567 F.3d
156, 164 (5th Cir. 2009) (citing Turner v. Baylor
Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir.
2001)). When deciding whether a genuine issue of fact exists,
“the court must view the facts and the inferences to be
drawn therefrom in the light most favorable to the nonmoving
party.” Sierra Club, Inc. v. Sandy Creek Energy
Assocs., L.P., 627 F.3d 134, 138 (5th Cir. 2010).
the nonmoving party “cannot defeat summary judgment
with conclusory allegations, unsubstantiated assertions, or
‘only a scintilla of evidence.'” Turner
v. Baylor Richardson Medical Center, 476 F.3d 337, 343
(5th Cir. 2007) (quoting Little v. Liquid Air Corp.,
37 F.3d 1069, 1075 (5th Cir. 1994)). In the absence of proof,
the Court does not “assume that the nonmoving party
could or would prove the necessary facts.”
Little, 37 F.3d at 1075 (emphasis omitted). The
nonmovant cannot survive a proper motion for summary judgment
by resting on the allegations in his pleadings. Isquith
v. Middle South Utilities, Inc., 847 F.2d 186, 199 (5th
Cir. 1988); see also Celotex, 477 U.S. at 325-26.
Instead, the nonmovant must present evidence sufficient to
support a resolution of the factual issues in his favor.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250