United States District Court, N.D. Mississippi, Greenville Division
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY
M. VIRDE MAGISTRATE JUDGE.
the Court is the Defendants' motion for summary judgment,
and Plaintiff's responses thereto. The parties having
consented to U.S. Magistrate Judge jurisdiction in this case
in accordance with 28 U.S.C. § 636(c), the undersigned
has the authority to enter this order and the accompanying
ago, Nevin Whetstone suffered an injury to his
sacrum that required him to periodically seek the
services of a medical professional to manipulate it back in
place. Unable to receive regular manipulations once
imprisoned, Whetstone claims that his sacrum locked into
place in 1990, causing him to suffer a lower tract problem
and, eventually, a spinal collapse.
alleges that he has continually sought osteopathic,
chiropractic, and/or orthopedic specialist services in his
over two decades of incarceration, but that he has never seen
an off-site physician or had tests run. Doc. #68-2 at 2. He
claims that Nurse Hill, a nurse at the Central Mississippi
Correctional Facility (“CMCF”), told him in 2011
that authorizing officials would not approve him to see a
specialist, and that medical providers at the Mississippi
State Penitentiary at Parchman (“Parchman”), such
as Angela Brown and Pam Jarrett, minimize his condition.
Whetstone contends that though he has seen medical
professionals regularly, none of them provide any adequate
treatment, which is causing him to grow increasingly immobile
as his range of motion decreases.
review of Whetstone's complaint alleging an
unconstitutional denial of medical care, the Court held a
Spears hearing and thereafter ordered
process to issue for Angela Brown, Pam Jarrett, and Nurse
Hill. Doc. #18. On May 21, 2018, counsel for Defendants
Jarrett and Brown entered a waiver of service, later filing a
timely answer on behalf of said Defendants. See
Docs. #33, #34, & #39. However, counsel for Defendants
moved for a more definite statement as to the identity of
“Nurse Hill” in order to identify her and
determine whether she is an employee of Centurion, the
contract medical provider for the Mississippi Department of
Corrections (“MDOC”), for whom it must provide a
defense. Doc. #40. The Court entered an order granting
Centurion's motion regarding Whetstone's legal claims
against Nurse Hill, but it determined that Whetstone had
identified Nurse Hill as an individual employed by Wexford
Medical at CMCF in 2011. Doc. #47. As such, it determined
that Whetstone had provided sufficient information for
Centurion to determine whether Nurse Hill is or was a
Centurion employee. Id.
response to the Court's order regarding a more definite
statement, Whetstone identified “Nurse Hill [as] the
first defendant who was fully apprised of plaintiff's
problem; she was seen twice in 2011.” Doc. #51 at 1. He
further contended that Nurse Hill documented his spinal
disorder in medical records following a medical evaluation in
February 2012. Id. In reply, counsel for Centurion
stated that it was unable to identify Nurse Hill, and it
further noted that Centurion was not the medical provider for
MDOC until 2015, well past the relevant time period of
Whetstone's allegations. Doc. #54.
Whetstone moved the Court to issue process against the Nurse
Hill who worked at the CMCF for Wexford Medical in 2011 and
2012. Doc. #56. This Court granted the order, and process
issued against Nurse Hill, via Wexford Medical. Doc.
#57. The summons was returned unexecuted in October 2018,
however, as the process server was unable to identify her for
service. Doc. #60. On November 13, 2018, Whetstone submitted
a motion to compel Wexford Medical to provide Nurse
Hill's identity to the Court. Doc. #67.
November 19, 2018, Defendants filed the pending motion for
summary judgment. Doc. #68. On November 21, 2018, this Court
entered an order denying Whetstone's motion to compel and
requiring him to show cause why Nurse Hill should not be
dismissed from this action, noting, in part:
This Court has issued process for Nurse Hill twice already,
and Wexford Medical has been unable to identify her as an
employee of the agency. See, e.g., Docs. #18, #27,
#57, #58, & #60. Counsel for Defendants who have appeared
in this action have investigated, and they have been unable
to determine the identity of Nurse Hill. Doc. #54. It is
apparent that “Nurse Hill” cannot be identified
as a proper defendant based on the information provided by
Plaintiff. Therefore, the Court finds that it would be futile
to grant Plaintiff's motion, and the motion will be
Additionally, the Court notes that Plaintiff filed the
instant lawsuit in late 2017. See Doc. #1. As the
Court noted at the time of Plaintiff's Spears
hearing, it was not apparent at the onset of this case that
Nurse Hill's involvement in the allegations of this
lawsuit were limited to events that occurred around 2011.
See Doc. #17. Plaintiff's subsequent
communications with the Court, however, demonstrate that her
involvement in the issues related to this lawsuit were in
fact limited to 2011 and 2012. See, e.g., Doc. #51.
Therefore, Plaintiff's allegations against Nurse Hill
cannot be sustained in this lawsuit, as they are barred by
Mississippi's three-year statute of limitations. See
e.g., Wallace v. Kato, 549 U.S. 384, 387 (2007);
Owens v. Okure, 488 U.S. 235, 250 (1989); see
also Miss. Code Ann. § 15-1-49. Accordingly, the
Court finds that Plaintiff must show cause why Nurse Hill
should not be dismissed from this lawsuit, as
Mississippi's statute of limitations bars Plaintiff's
claims against her. See, e.g., Gartrell v. Gaylor,
981 F.2d 254, 256 (5th Cir. 1993) (holding courts may dismiss
claims sua sponte under 28 U.S.C. § 1915(d)
where it is clear that the claim is barred by the applicable
statute of limitations).
Doc. #72. On or about December 11, 2018, Whetstone filed a
response to the order to show cause, maintaining that Wexford
is deliberately stone-walling the Court, and that the United
States Marshals are capable of finding Nurse Hill. See,
e.g., Doc. #77. He otherwise argues that Nurse Hill is
an integral part of his case, and that this Court should
require her to answer his allegations based on the
“continuing violation doctrine” in federal common
law, as she was the medical professional who documented that
he had a spinal condition and who stated that prison
officials would not authorize the treatment he needed.
Id. at 2-3.
January 17, 2019, the Court entered an order requiring
Defendants to supplement their summary judgment response and
providing Whetstone an opportunity to supplement his summary
judgment response. See Doc. #78. Defendants and
Whetstone each timely filed a supplement, and Whetstone
subsequently alleged that Defendants' summary judgment
proof was manufactured. See Docs. #79, #84, #87. On
February 11, 2019, counsel for Defendants submitted a
suggestion of death for Defendant Pamela Jarrett. Doc. #83.
On or about February 13, 2019, Whetstone filed a motion
seeking to substitute Centurion of Mississippi, Nurse Hill,
and Angela Brown as parties in place of Pamela Jarrett. Doc.
#86. Defendants did not respond to the motion.
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