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Whetstone v. Brown

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

March 4, 2019

NEVIN KERR WHETSTONE PLAINTIFF
v.
ANGELA BROWN, ET AL. DEFENDANTS

          ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

          JANE M. VIRDE MAGISTRATE JUDGE.

         Before 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 final judgment.

         I. Plaintiff's Allegations

         Years ago, Nevin Whetstone suffered an injury to his sacrum[1] 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.

         Whetstone 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.

         II. Procedural History

         After review of Whetstone's complaint alleging an unconstitutional denial of medical care, the Court held a Spears[2] hearing and thereafter ordered process to issue for Angela Brown, Pam Jarrett, and Nurse Hill. Doc. #18.[3] 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.

         In 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.

         Subsequently, 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.

         On 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 denied.
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.

         On 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.

         III. Nurse Hill & Show ...


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