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McGilberry v. Morris

United States District Court, N.D. Mississippi, Greenville Division

January 11, 2019

PHILLIP MCGILBERRY PLAINTIFF
v.
TIMOTHY MORRIS, ET AL. DEFENDANTS

          MEMORANDUM OPINION

          SHARION AYCOCK, U.S. DISTRICT JUDGE.

         This matter comes before the court on the pro se prisoner complaint of Phillip McGilberry, who challenges the conditions of his confinement under 42 U.S.C. § 1983. For the purposes of the Prison Litigation Reform Act, the court notes that the plaintiff was incarcerated when he filed this suit. The plaintiff has brought the instant case under 42 U.S.C. § 1983, which provides a federal cause of action against “[e]very person” who under color of state authority causes the “deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983. The plaintiff alleges that the defendants failed to protect him against attack by other inmates - and that the defendants provided inadequate medical care for his resulting injuries. The defendants have moved [54] for summary judgment, and Mr. McGilberry has not responded. The matter is ripe for resolution. For the reasons set forth below, the defendants' motion for summary judgment will be granted, and judgment will be entered in favor of the defendants.

         Summary Judgment Standard

         Summary judgment is appropriate if the “materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials” show that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a) and (c)(1). “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) (citing Celotex Corp. v. Catrett, 477 U.S. 317 (1986), cert. denied, 484 U.S. 1066 (1988)). After a proper motion for summary judgment is made, the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986); Beck, 204 F.3d at 633; Allen v. Rapides Parish School Bd., 204 F.3d 619, 621 (5th Cir. 2000); Ragas v. Tennessee Gas Pipeline Company, 136 F.3d 455, 458 (5th Cir. 1998).

         Substantive law determines what is material. Anderson, 477 U.S. at 249. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id., at 248. If the non-movant sets forth specific facts in support of allegations essential to his claim, a genuine issue is presented. Celotex, 477 U.S. at 327. “Where the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L.Ed.2d 538 (1986); Federal Savings and Loan, Inc. v. Krajl, 968 F.2d 500, 503 (5th Cir. 1992).

         The facts are reviewed drawing all reasonable inferences in favor of the non-moving party. Allen, 204 F.3d at 621; PYCA Industries, Inc. v. Harrison County Waste Water Management Dist., 177 F.3d 351, 161 (5th Cir. 1999); Banc One Capital Partners Corp. v. Kneipper, 67 F.3d 1187, 1198 (5th Cir. 1995). However, this is so only when there is “an actual controversy, that is, when both parties have submitted evidence of contradictory facts.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994); see Edwards v. Your Credit, Inc., 148 F.3d 427, 432 (5th Cir. 1998). 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 very purpose of summary judgment is to “pierce the pleadings and assess the proof in order to see whether there is a genuine issue for trial.” Advisory Committee Note to the 1963 Amendments to Rule 56. Indeed, “[t]he amendment is not intended to derogate from the solemnity of the pleadings. Rather, it recognizes that despite the best efforts of counsel to make his pleadings accurate, they may be overwhelmingly contradicted by the proof available to his adversary.” Id. The non-moving party (the plaintiff in this case), must come forward with proof to support each element of his claim. The plaintiff cannot meet this burden with “some metaphysical doubt as to the material facts, ” Matsushita, 475 U.S. at 586, 106 S.Ct. at 1356, “conclusory allegations, ” Lujan v. National Wildlife Federation, 497 U.S. 871, 871-73, 110 S.Ct. 3177, 3180 (1990), “unsubstantiated assertions, ” Hopper v. Frank, 16 F.3d 92 (5th Cir. 1994), or by a mere “scintilla” of evidence, Davis v. Chevron U.S.A., Inc., 14 F.3d 1082 (5th Cir. 1994). It would undermine the purposes of summary judgment if a party could defeat such a motion simply by “replac[ing] conclusory allegations of the complaint or answer with conclusory allegations of an affidavit.”

         Undisputed Material Facts[1]

         The court has drawn the facts in this case from the pleadings and documents on the docket and the testimony provided by plaintiff during his August 20, 2016, Spears hearing. While housed in Unit 29 K-Building, Mr. McGilberry told Wardens Timothy Morris and Johnnie Denmark that his cell door would not lock. Both Morris and Denmark told him the doors would be repaired, but they were not. The plaintiff alleges that he was later attacked in his cell. The Magistrate Judge summarized the facts in his Report and Recommendation:

On July 18, [2015], the Trusty passing out food put McGilberry's in the cell door tray hole, then came back and asked, “Did I give you two cookies?” McGilberry said that he only received one cookie, but the Trusty did not believe him and told some gang members that McGilberry had “disrespected” him. McGilberry believes that the Trusty is a member of the Gangster Disciples prison gang, and the two had argued in the past. That same day, six to eight members of the Gangster Disciples entered his cell through the malfunctioning door, beat him, and stabbed him thirteen times. Other inmates nearby raised the alarm and called to prison guards to break up the fight, and on hearing the ruckus, the gang members fled. McGilberry sustained stab wounds on his neck, ear, arm, legs, and back. He was bleeding badly and asked to be taken to medical, but the officer on-scene said he had to wait for the senior officer to do so. He was eventually transported to medical and treated for his injuries.

         Report and Recommendation [14], pp. 1-2. Mr. McGilberry was quickly taken to the prison hospital, then transferred to a local civilian hospital. Once he was examined and treated there, he was airlifted to the University of Mississippi Medical Center in Jackson, Mississippi. Mr. McGilberry seeks monetary damages in the amount of $500, 000.00. Doc. 1 at 4.

         Failure to Protect

         Mr. McGilberry claims that the defendants failed to protect him from attack by other inmates. “The Eighth Amendment affords prisoners protection against injury at the hands of other inmates.” Johnson v. Lucas, 786 F.2d 1254, 1259 (5th Cir. 1986) (citations omitted). Deliberate indifference “[is] the proper standard to apply in the context of convicted prisoners who claim[] denial of medical care or the failure to protect.” Grabowski v. Jackson County Public Defender's Office, 47 F.3d 1386, 1396 (5th Cir. 1995). A prisoner plaintiff cannot show that a prison official showed deliberate indifference unless he can show that “the official [knew] of and disregard[ed] an excessive risk to inmate health or safety;” indeed, the official must have been aware of facts giving rise to an inference that a substantial risk of serious harm existed - and he must have drawn that inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994).

         An inmate pursuing a claim for failure to protect may prove his claim by showing that the defendants knew of a specific threat to him but failed to take measures to protect from it. Id. at 843. However, even in the absence of specific threat, an inmate may prove a claim of failure to protect if he can show that he was placed in a prison environment “where terror reigns.” Jones v. Diamond, 636 F.2d 1364 (5th Cir. 1981), overruled on other grounds by International Woodworkers of America, AFL-CIO and its Local No. 5-376 v. Champion Intern. Corp., 790 F.2d 1174 (5th Cir. 1986). This situation arises in a jail or prison where officials permit violent offenders to hold sway over part or all of the facility - creating “a pervasive risk of harm and a failure to take reasonable steps to prevent the known risk.” Stokes v. Delcambre,710 F.2d 1120 (5th Cir. 1983) (sheriff housed college students arrested on a non-violent misdemeanor charge with a dozen inmates charged with violent felonies - leading to the students' severe beating and rape). Indeed, “it does not matter whether the risk comes from a single source or multiple sources, any more than it matters whether a prisoner faces excessive risk of attack for reasons personal to him or because all prisoners in his situation face such a risk.” Farmer, 511 U.S. at 843. However, “in order to be deliberately indifferent, a prison official must be subjectively aware of the risk.” Adames v. Perez, 331 F.3d 508, 512 (5th Cir. 2003) (emphasis in original). In Adames, the prison officials knew that the locks on the cells in Adames' unit could be defeated - and that prisoners had defeated the locks, exited their cells, and attacked other inmates. Id. at 513. The Fifth Circuit, however, found the defendants not to be ...


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