United States District Court, N.D. Mississippi, Greenville Division
MEMORANDUM OPINION AND ORDER
M. BROWN UNITED STATES DISTRICT JUDGE,
prisoner civil rights action is before the Court on the
motion for summary judgment filed by “Dr. H. Kuiper,
” “Nurse L. Barron, ” and Centurion of
Mississippi, LLC, Doc. #65; which the Mississippi Department
of Corrections, Pelicia Hall, Steven Anderson, Robert
Benford, and Keba Taylor joined, Doc. #67.
about March 24, 2017, Chaz Pinkston, acting pro se, filed a
complaint in the United States District Court for the
Northern District of Mississippi, naming as defendants (1)
the Mississippi Department of Corrections
(“MDOC”); (2) “Nichols, ” a captain
at the Mississippi State Penitentiary (“MSP”);
(3) Keba Taylor, a lieutenant at MSP; (4) “S. Anderson,
” later identified as Steven Anderson,  a sergeant at
MSP; (5) “Centurion, ” later identified as
Centurion of Mississippi, LLC,  a contractor at MSP; (6)
“Dr. Kuiper, ” later identified as Dr. H. Kuiper,
doctor at MSP; and (7) “Ms. Barron, ” later
identified as L. Barron,  a registered nurse at MSP. Doc. #1.
With leave of this Court, Pinkston subsequently filed three
amended complaints-one to add Pelicia Hall as a defendant,
Doc. #13; one “to say Captain Benford, instead of
Captain Nichols, ” Doc. #19; and one to clarify that he is
asserting a due process claim, see Docs. #40, #43.
August 14, 2017, following a Spears hearing, United
States Magistrate Judge David A. Sanders issued an order
directing the defendants to answer the complaint, as amended,
by September 5, 2017. Doc. #16 at 1.
did not file an answer by September 5, 2017. On or about
September 6, 2017, Pinkston filed against Taylor a motion
seeking entry of default and a motion for default judgment.
Doc. #35; Doc. #36. On September 13, 2017, Taylor, without
seeking leave of the Court, filed an untimely answer. Doc.
#37. The same day, Judge Sanders denied Pinkston's motion
for entry of default on the ground that this Court likely
would not grant a default judgment because Taylor filed an
answer and because the Prison Litigation Reform Act
(“PLRA”) does not allow for entry of a default
judgment. Doc. #38.
December 5, 2017, Barron, Centurion, and Kuiper
(“Centurion Defendants”) filed a joint motion for
summary judgment. Doc. #65. The same day, MDOC, Hall,
Anderson, Benford, and Taylor (“MDOC Defendants”)
filed a “Joinder” regarding the motion for
summary judgment.Doc. #67. The motion for summary judgment
has been fully briefed. Doc. #94; Doc. #99.
January 3, 2018, this Court vacated Judge Sanders' order
denying default and directed the Clerk of the Court to enter
default against Taylor. Doc. #79. The Clerk entered default
the same day. Doc. #80. Six days later, Taylor filed a motion
to set aside default, Doc. #81, which this Court granted on
March 5, 2018, on the ground that Taylor was never served
with process, Doc. #103.
about February 16, 2018, Pinkston filed a “Motion for
Leave to File Motion for Temporary Restraining Order and a
Preliminary Injunction, ” Doc. #100, which is in
substance a motion for injunctive relief “to ensure
that he receives proper medical treatment and care to
counteract prison staff['s] wanton infliction of pain by
cruel and unusual punishment, ” Doc. #101 at 1
(quotation marks omitted). Approximately three weeks later,
on or about March 5, 2018, Pinkston filed an “Emergency
Motion” which, though less than clear, appears to be
both a supplement to Pinkston's motion for injunctive
relief, and a supplement to Pinkston's response to the
motion for summary judgment. Doc. #104.
about March 13, 2018, Pinkston filed two documents which are,
in substance, motions for sanctions against the defendants.
Doc. #107; Doc. #108. About a week later, Pinkston filed a
motion for reconsideration of this Court's order setting
aside default. Doc. #110.
Motion for Reconsideration
motion for reconsideration, Pinkston asks this Court to
reinstate default, and enter default judgment against Taylor.
Rule of Civil Procedure 54(b) “allows parties to seek
reconsideration of interlocutory orders
….” Austin v. Kroger Tex., L.P., 864
F.3d 326, 336 (5th Cir. 2017). Under Rule 54(b):
[A]ny order or other decision, however designated, that
adjudicates fewer than all the claims or the rights and
liabilities of fewer than all the parties does not end the
action as to any of the claims or parties and may be revised
at any time before the entry of a judgment adjudicating all
the claims and all the parties' rights and liabilities.
Fed. R. Civ. P. 54(b).
Although the source of the court's authority to revise or
amend an order or judgment is different for interlocutory
orders than for final orders or judgments, many of the same
policy considerations apply both to motions for
reconsideration under Rule 54(b) and to motions for
reconsideration under Rule 59(e). Accordingly, district
courts … frequently apply the same standards to the
eTool Dev., Inc. v. Nat'l Semiconductor Corp.,
881 F.Supp.2d 745, 748 (E.D. Tex. 2012) (collecting cases).
Under Fifth Circuit jurisprudence:
A Rule 59(e) motion “calls into question the
correctness of a judgment.” This Court has held that
such a motion is not the proper vehicle for rehashing
evidence, legal theories, or arguments that could have been
offered or raised before the entry of judgment. Rather, Rule
59(e) “serves the narrow purpose of allowing a party to
correct manifest errors of law or fact or to present newly
Templet v. HydroChem Inc., 367 F.3d 473, 478-79 (5th
Cir. 2004) (citations and alterations omitted). “A
motion to alter or amend the judgment under Rule 59(e) must
clearly establish either a manifest error of law or fact or
must present newly discovered evidence and cannot be used to
raise arguments which could, and should, have been made
before the judgment issued.” Schiller v.
Physicians Res. Grp. Inc., 342 F.3d 563, 567 (5th Cir.
2003) (internal quotation marks omitted). Additionally,
“a trial court is free to reconsider and reverse
interlocutory orders for any reason it deems sufficient, even
in the absence of new evidence or an intervening change or in
clarification of the new law.” Stoffels ex rel. SBC
Tel. Concession Plan v. SBC Commc'ns, Inc., 677 F.3d
720, 727-28 (5th Cir. 2012) (internal alterations omitted).
argues that reconsideration is necessary because Taylor
waived the defense of improper service by filing his answer
and because Taylor had independent knowledge of the lawsuit
a “defendant's actual notice of … litigation
… is insufficient to satisfy Rule 4's [service]
requirements.” Way v. Mueller Brass Co., 840
F.2d 303, 306 (5th Cir. 1988). Furthermore, while it is true
that failure to include improper service in an answer results
in waiver of the defense,  pleadings filed without leave of court
are “[w]ithout legal effect.” U.S. ex rel.
Mathews v. HealthSouth Corp., 332 F.3d 293, 296 (5th
Cir. 2003). Thus, an untimely answer is a nullity. In re
Legal Xtranet, Inc., No. 11-51042, 2011 WL 3652756, at
*4 (Bankr.W.D.Tex. Aug. 19, 2011) (“[B]ecause AT&T
failed to obtain leave of court before filing its untimely
Amended Answer, the Amended Answer is a nullity and the
original Answer remains the live pleading.”). It
follows, therefore, that a defense may not be waived by an
untimely answer. Accordingly, Taylor's untimely answer
did not waive the right to object to service in opposing
default judgment, and Pinkston's argument to the contrary
is rejected. The motion for reconsideration will be denied.
seeks sanctions in the form of dismissal of the pending
motion for summary judgment and the related joinder. As
grounds for this relief, Pinkston contends the MDOC
Defendants filed their joinder after the deadline for joinder
of parties set in the scheduling order governing this case.
Pinkston further alleges that the Centurion Defendants: (1)
by filing exhibits in support of their motion for summary
judgment, “filed their discovery on December 5th, 2017,
” after the discovery deadline; (2) responded to
motions related only to the MDOC defendants; (3) supplemented
their discovery disclosures after the discovery deadline; and
(4) replied in support of the motion for summary judgment
without seeking leave of the Court. The Court has reviewed
Pinkston's contentions and finds that none of the conduct
identified by Pinkston violates an applicable rule or order,
much less justifies the sanction of dismissing a dispositive
motion. Accordingly, the motions for sanctions will be
Rule 56 of the Federal Rules of Civil Procedure,
“[s]ummary judgment is proper only when the record
demonstrates that no genuine issue of material fact exists
and the movant is entitled to judgment as a matter of
law.” Luv N' Care, Ltd. v. Groupo
Rimar, 844 F.3d 442, 447 (5th Cir. 2016). “A
factual issue is genuine if the evidence is sufficient for a
reasonable jury to return a verdict for the non-moving party,
and material if its resolution could affect the outcome of
the action.” Burton v. Freescale Semiconductor,
Inc., 798 F.3d 222, 226 (5th Cir. 2015) (quotation marks
omitted). On a motion for summary judgment, a court must
“consider the evidence in the light most favorable to
the nonmoving party and draw all reasonable inferences in its
favor.” Edwards v. Cont'l Cas. Co., 841
F.3d 360, 363 (5th Cir. 2016).
seeking summary judgment, “[t]he moving party bears the
initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of the
record which it believes demonstrate the absence of a genuine
issue of material fact.” Nola Spice Designs,
L.L.C. v. Haydel Enters., Inc., 783 F.3d 527, 536
(5th Cir. 2015) (quotation marks and alterations omitted). If
the moving party satisfies this burden, “the non-moving
party must go beyond the pleadings and by her own affidavits,
or by the depositions, answers to interrogatories, and
admissions on file, designate specific facts showing that
there is a genuine issue for trial.” Id.
(quotation marks omitted). “Where the nonmoving party
bears the burden of proof at trial, the moving party
satisfies this initial burden by demonstrating an absence of
evidence to support the nonmoving party's case.”
Celtic Marine Corp. v. James C. Justice Cos., Inc.,
760 F.3d 477, 481 (5th Cir. 2014).
about July 18, 2016, Pinkston was admitted to the hospital
unit of MSP after going on a hunger strike at the Wilkinson
County Correctional Facility and experiencing a documented
eleven-pound weight loss. Doc. #65-2 at 8-10, 14. Pinkston
was diagnosed with Narcissistic Personality Disorder
following an initial psychiatric review by an MSP
psychiatrist but was not placed on any psychiatric
medication. Id. at 7, 22.
days of his transfer to MSP, Pinkston stated that he was on a
hunger strike in order to get medical treatment for his dry
skin. Id. at 26. The specific medical treatment he
requested was Eucerin lotion and A&D ointment.
Id. Pinkston was advised that Eucerin cream was
non-formulary and could not be provided. Id.
At that time, however, Pinkston was given a new order to
apply A&D ointment to his dry skin twice daily.
Id. at 26-27. He was also later provided with
medicated shampoo after he complained of an itchy scalp.
Id. at 209.
of the hunger strike, Pinkston was placed under continuous
observation until at least September 20, 2016. See
generally id. at 5-266. Pinkston often complained to
medical providers during their daily rounds, asserting that
dissatisfaction with his diet and skin treatment options were
the reasons for his hunger ...