United States District Court, N.D. Mississippi, Greenville Division
CLIFTON T. TORREY, SR. PLAINTIFF
COMMISSIONER PELICIA HALL, DR. GLORIA PERRY, and WILLIE KNIGHTEN DEFENDANTS
MEMORANDUM OPINION AND ORDER
A. SANDERS UNITED STATES MAGISTRATE JUDGE
7, 2018, plaintiff Clifton T. Torrey, Sr., an inmate confined
at the Mississippi State Penitentiary at Parchman
(“Parchman”) 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 applies to this case because the plaintiff was
incarcerated when he filed this lawsuit.
1997, prior to his incarceration, Clifton Torrey had neck
surgery. Because of the injury necessitating the surgery,
Clifton Torrey was diagnosed in 2010 at the South Mississippi
Correctional Facility with foot drop in his right foot, a
condition which causes him to stumble easily and fall
frequently. Over time, he claims, his condition has worsened,
and he experiences hip and leg pain frequently. In 2012, a
nurse practitioner at the facility ordered him a pre-made leg
brace, which was returned because it cut into Torrey's
leg and foot. On several occasions throughout the next few
years, Torrey wrote to Dr. Gloria Percy and others attempting
to get the brace replaced. It was not until March 2015,
following Torrey's grievances alleging medical neglect
and delay, that it was approved that he would receive a
prosthetic leg brace.
to Torrey, he was not fitted for a leg brace and orthopedic
boots until March 2016, and he did not receive them until
April 27, 2016. They had to be refitted twice after he
received them. At some point, Torrey also received a back
brace. In June 2016, Torrey was transferred to Parchman and
housed in Unit 30-C, A building. In August 2016, his back and
knee braces were confiscated during a shakedown, because a
Parchman doctor refused to give him a medical pass to have
those items. In October 2016, the Parchman hospital manager,
Willie Knighten responded to a sick call stating that
Torrey's back and knee braces were being reordered.
According to Torrey, he only recently received his knee brace
and still has not received his back brace.
November 2016, Torrey made a representative from Bucker
Prosthetics aware that he needed the soles of his boots
resoled, as they were very slick and cause him to fall
frequently. The representative advised Torrey that he could
take Torrey's boots, resole them, and ship them back to
the prison, provided he was granted authorization to do so.
Torrey's shoes were not taken at that time.
November 2017, Torrey was sent to the infirmary to be placed
on a list to have his boots and leg brace fixed or replaced,
and on January 25, 2018, he was approved to go to Buckner
Prosthetics for new boots. As of the Spears hearing,
he still had not received repair or replacement on the leg
brace or the boots.
also claims that the showers at his housing unit are missing
tiles, which cause him to stumble easily, and that he has
fallen at least six times while housed in the unit due to the
slick-soled shower shoes, missing tiles, and absence of any
handicapped bars in Unit 30. Torrey further states that he
was told by his surgeon in 1997 that he would need to sleep
on an orthopedic pillow for the remainder of his life, and
that the Mississippi Department of Corrections
(“MDOC”) refuses to provide him with an
orthopedic pillow, better-soled shower shoes, a ten's
unit, and a thicker mattress, all of which he needs to
alleviate pain. By way of relief, he asks the Court to order
the defendants to provide these items, along with handicapped
bars in the showers, yearly replacement of his orthopedic
boots, a reissuance of his back brace, an MRI, and orthopedic
socks. He also requests monetary damages for the pain and
suffering he has experienced due to the defendants'
allegations of the defendants' wrongdoing date back to
2010. In a § 1983 action, courts apply a state's
statute of limitations for personal injury actions.
Wallace v. Kato, 549 U.S. 384, 387 (2007); Owens
v. Okure, 488 U.S. 235, 250 (1989). In Mississippi, the
applicable statute of limitations is three years.
See Miss. Code Ann. § 15-1-49; James v.
Sadler, 909 F.2d 834, 836 (5th Cir. 1990). While state
law establishes the length of the limitations period, federal
law governs when the limitations period accrues.
Wallace, 549 U.S. at 388. “Under federal law,
the limitations period begins to run the moment the plaintiff
becomes aware that he has suffered an injury or has
sufficient information to know that he has been
injured.” Pitrowski v. City of Houston, 237
F.3d 567, 576 (5th Cir. 2001) (internal citations and
quotations omitted). Here, Torrey knew of the medical
treatment (or lack of treatment) as early as 2010 but waited
until approximately February 8, 2018, to file a civil action.
Accordingly, Torrey cannot sustain a § 1983 claim
against any defendant for conduct occurring prior to February
8, 2015 - 3 years prior to the date he filed suit. Therefore,
any denial or delay of medical care claims occurring prior to
February 8, 2015, are dismissed with prejudice as frivolous.
See Gonzales v. Wyatt, 157 F.3d 1016, 1019-20 (5th
Cir. 1998) (holding that claims that are clearly time-barred
are properly dismissed under § 1915).
Defendants to be Dismissed
states that he named Commissioner Pelicia Hall as a defendant
in this lawsuit because she oversees MDOC. However, §
1983 does not “create supervisory or respondeat
superior liability.” Oliver v. Scott, 276
F.3d 736, 742 & n.6 (5th Cir. 2002); see also
Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir. 1987)
(“Under § 1983, supervisory officials cannot be
held liable for the actions of subordinates under any theory
of vicarious liability.”). Rather, in order to prevail
against an individual under § 1983 based solely on their
role as a supervisor, a plaintiff must show that: 1) the
supervisor's conduct directly caused a constitutional
violation; or 2) that the supervisor was “deliberately
indifferent” to a violation of a constitutional right.
Breaux v. City of Garland, 205 F.3d 150, 161 (5th
Cir. 2000). Here, Torrey claims only he wrote to Pelicia Hall
and that she failed to intervene. However, Hall faces no
constitutional liability in simply failing to investigate or
respond to Torrey's grievances, and therefore, he cannot
sustain a claim against her. See, e.g., Geiger v.
Jowers, 404 F.3d 371, 374 (5th Cir. 2005).
can Torrey sustain a claim against Willie Knighten, as it is
apparent from the testimony offered at his Spears
hearing that Knighten has attempted to intervene and get
Torrey's braces and boots reordered. An inmate's
constitutional right to medical care has been abridged only
if officials were deliberately indifferent to his serious
medical needs, as deliberate indifference to an inmate's
serious medical needs violates the Eighth Amendment's
prohibition against cruel and unusual punishment. Estelle
v. Gamble, 429 U.S. 97, 103-04 (1978). Under this
standard, a state actor is not liable under § 1983
unless the plaintiff alleges facts which, if true, would
demonstrate that the prison official (1) knew that the inmate
faced a substantial risk of serious harm; and (2) disregarded
that risk by failing to take reasonable measures to abate it.
Farmer v. Brennan, 511 U.S. 825, 839-40, 847 (1994).
It is apparent from Torrey's testimony that Knighten has
not ignored Torrey's plight and certainly not to a degree
that would establish deliberate indifference.