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Burgess v. Little

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

January 30, 2019

MARK ANTHONY BURGESS, MDOC # 77647 PLAINTIFF
v.
MR. O. LITTLE et al. DEFENDANTS

          REPORT AND RECOMMENDATION

          JOHN C. GARGIULO UNITED STATES MAGISTRATE JUDGE.

         BEFORE THE COURT is a Motion for Summary Judgment (ECF No. 42), filed by Defendants Management & Training Corporation (MTC) and MTC correctional staff at East Mississippi Correctional Facility (EMCF), in Meridian, Mississippi, namely Warden Frank Shaw, Deputy Warden Norris Hogans, Unit Manager Simone Jones, Lieutenant William Brown, and Lieutenant LeShauntae Hughes Moore. Pro se Plaintiff Mark Anthony Burgess is a postconviction prisoner in the custody of the Mississippi Department of Corrections serving a term of imprisonment at EMCF. Plaintiff has not responded to Defendants' Motion for Summary Judgment. Having considered the submissions, the record, and applicable law, the undersigned recommends that Defendants' Motion for Summary Judgment be GRANTED and Plaintiff's remaining claims dismissed with prejudice.

         BACKGROUND

         Plaintiff is serving a life sentence as a habitual offender and is currently housed at EMCF. Plaintiff initiated this suit on January 3, 2017, in the Circuit Court of Lauderdale County, Mississippi. The Circuit Court granted Plaintiff's petition to proceed in forma pauperis. Warden Shaw, Deputy Warden Hogans, and Unit Manager Jones removed the action to this Court based upon federal question jurisdiction.

         A Spears hearing was held on June 1, 2017. See Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985). After the Spears hearing, the undersigned issued a Report and Recommendation, recommending that Plaintiff's medical care and certain grievance-process-related claims be dismissed because Plaintiff previously litigated those claims in Burgess v. Reddix, Civil Action No. 3:13-cv-1006-CWR-FKB (S.D.Miss. 2013).[1] The undersigned recommended that Plaintiff's medical-care-related claims be dismissed for the additional reason that those claims were not based on allegations that Plaintiff was being denied medical treatment, but instead, on allegations that Plaintiff disagreed with the treatment he was being provided. (ECF No. 34, at 5-8). The undersigned found that Plaintiff's legal-mail-related claim was subject to dismissal on grounds that Plaintiff could not show that he was prejudiced because of the one-time occurrence of a court not receiving paperwork he had allegedly sent from prison. Id. at 8-9.

         Plaintiff did not file objections to the Report and Recommendation. District Judge William H. Barbour, Jr. adopted the undersigned's Report and Recommendation, agreeing that Plaintiff's medical-related-claims, grievance- process-related claims, and legal-mail-related claims should be dismissed for the reasons stated.

         Plaintiff's remaining claims are against Warden Shaw, Deputy Warden Hogans, Unit Manager Jones, Lieutenant Brown, and Lieutenant Moore. Plaintiff's claims concern numerous rule violation convictions and resulting discipline that Plaintiff received from late 2012 through March 2017, which Plaintiff maintains was the result of retaliation because he filed Reddix. The Rule Violation Report (RVR) convictions resulted in Plaintiff losing privileges and eventually being placed in closed custody housing. Plaintiff alleges that Unit Manager Jones issued or resolved numerous RVRs against Plaintiff because Plaintiff filed Reddix. Plaintiff alleges that, in retaliation for filing Reddix, he was subjected to excessive force by Lieutenant Brown and placed in segregation twice without due process by Lieutenant Moore. Plaintiff alleges that Warden Shaw and Deputy Warden Hogans, in retaliation for Plaintiff filing Reddix, conspired in failing to adequately address administrative grievances Plaintiff submitted through EMCF's administrative remedy program (ARP).

         Plaintiff characterizes himself as “a mental health offender with bipolar symptoms, ” whose “many RVRs” for “disruptive behavior or disorderly conduct” are due to Plaintiff's “bipolar symptoms.” (ECF No. 6, at 10). Plaintiff states that when he is “‘harassed' or ‘intimidated' by staff he undergoes bipolar symptoms angry behavior lashing out at staff members, who harass him by way of intimidation.” Id. at 10 [all sic in original].

         Defendants' Motion for Summary Judgment was filed on April 9, 2018. Nine and a half months have passed since that time, and Plaintiff has not filed a response to the Motion for Summary Judgment. It is certain that Plaintiff is aware of the Motion for Summary Judgment, as it was served upon him by Defendants (ECF No. 42, at 4) and furthermore Plaintiff requested and received a copy of the docket sheet in September 2018. (ECF No. 44).

         The Rule Violation Reports (RVRs) referenced in or attached to Plaintiff's pleadings, including their date, charge, and resolution follow:

11/29/2012
RVR No. 16154 (ECF No. 6, at 185)
Disruptive behavior in violation of Rule B16. Disobeyed orders to stop talking loudly in medical and began threatening medical staff.
30 days loss of visitation privileges
10/24/2013
RVR No. 01394177 (ECF No. 42-3, at 1)
Refusing to obey an order of staff in violation of Rule B3
30 days loss of phone privileges
10/24/2013
RVR No. 01394176 (ECF No. 42-3, at 1)
Interfering with an employee in the performance of her duty in violation of Rule B2
30 days loss of phone privileges
2/22/2015
RVR No. 01579133 (ECF No. 44-5)
Destroying or defacing state property in violation of Rule B23
Loss of privileged housing, job, or meritorious living conditions
4/10/2015
RVR No. 01597033 (ECF No. 44-6)
Abusive, disrespectful and threatening language in violation of Rule B13
60 days loss of all privileges
7/8/2015
RVR No. 01641195 (ECF No. 42-7)
Disruptive behavior in violation of Rule B16
60 days loss of all privileges
7/11/2016
RVR No. 01708743 (ECF No. 42-8)
Disruptive behavior in violation of Rule B16 for throwing a chair at the
window and Nurse Brookshire three times.
Segregation for 10 days (time served)
7/11/2016
RVR No. 01702445 (ECF No. 42-9)
Possession of major contraband in violation of Rule C7. Plaintiff in possession of two bottles of prescription pills.
60 days loss of all privileges and custody review
11/25/2016
RVR No. 01723246 (ECF No. 42-10)
Disruptive behavior or disorderly conduct which threatens the orderly running of the facility
Found not guilty
11/27/2016
RVR No. 01723233 (ECF No. 42-11)
Refusing to obey an order of staff in violation of Rule B3 by leaving medical department and refusing to be escorted back to housing unit.
30 days loss of all privileges
3/14/2017
RVR No. 01798425 (ECF No. 42-12)
Being in a restricted or unauthorized area in violation of B11
Plaintiff placed in a holding cell in the medical department and medically evaluated. (ECF No. 43, at 15; ECF No. 43-2). Then moved to segregation until 4/11/2017. (ECF No. 43, at 16, ECF No. 43-13).
3/14/2017
RVR No. 01797573 (ECF No. 42-13)
Disruptive behavior in violation of Rule B16 after refusing to return to assigned housing pod, yelling at staff, running toward, threatening and throwing his cane at Captain Rowell and throwing books toward Sergeant Stewart. (ECF No. 42-13, at 2).
Plaintiff was given a warning because during the incident, Plaintiff was sprayed with chemical agent by Sergeant Stewart. (ECF No. 42-13, at 2)

         DISCUSSION

         A. Summary Judgment Standard

         Federal Rule of Civil Procedure 56 provides that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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.” Fed.R.Civ.P. 56(c). The United States Supreme Court has held that this language “mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a sufficient showing to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Moore v. Miss. Valley State Univ., 871 F.2d 545, 549 (5th Cir. 1989); Washington v. Armstrong World Indus., 839 F.2d 1121, 1122 (5th Cir. 1988).

         The party moving for summary judgment 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. Celotex, 477 U.S. at 323. The movant need not, however, support the motion with materials that negate the opponent's claim. Id. As to issues on which the non-moving party has the burden of proof at trial, the moving party need only point to portions of the record that demonstrate an absence of evidence to support the non-moving party's claim. Id. at 323-24. The non-moving party must then go beyond the pleadings and designate “specific facts showing that there is a genuine issue for trial.” Id. at 324.

         Summary judgment can be granted only if everything in the record demonstrates that no genuine issue of material fact exists. It is improper for the district court to “resolve factual disputes by weighing conflicting evidence, . . . since it is the province of the jury to assess the probative value of the evidence.” Kennett-Murray Corp. v. Bone, 622 F.2d 887, 892 (5th Cir. 1980). Summary judgment is also improper where the court merely believes it unlikely that the non-moving party will be able to prevail at trial. Nat'l Screen Serv. Corp. v. Poster Exchange, Inc., 305 F.2d 647, 651 (5th Cir. 1962).

         B. Plaintiff Has Not Shown Retaliation

         Prisoners have a constitutional right of access to the courts. Bounds v. Smith, 430 U.S. 817, 822 (1977). Plaintiff alleges that prison officials retaliated against him for filing Reddix. “To state a valid claim for retaliation under [S]ection 1983, a prisoner must allege (1) a specific constitutional right, (2) the defendant's intent to retaliate against the prisoner for his or her exercise of that right, (3) a retaliatory adverse act, and (4) causation.” Bibbs v. Early, 541 F.3d 267, 270 (5th Cir. 2008).

To assure that prisoners do not inappropriately insulate themselves from disciplinary actions by drawing the shield of retaliation around them, trial courts must carefully scrutinize these claims. To state a claim of retaliation an inmate must allege the violation of a specific constitutional right and be prepared to establish that but for the retaliatory motive the complained of incident - such as the filing of disciplinary reports as in the case at bar - would not have occurred. This places a significant on the inmate. Mere conclusory allegations of retaliation will not withstand a summary judgment challenge. The inmate must produce direct evidence of motivation or, in the more probable scenario, allege a chronology of events from which retaliation may plausibly be inferred. Although we decline to hold as a matter of law that a legitimate prison disciplinary report is an absolute bar ...

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