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Koh v. Berkebile

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

March 12, 2019

JUNNE KOH PLAINTIFF
v.
WARDEN BERKEBILE and DR. WASHINGTON DEFENDANTS

          REPORT AND RECOMMENDATION

          MICHAEL T. PARKER, UNITED STATES MAGISTRATE JUDGE

         THIS MATTER is before the Court on Defendants' Motion to Dismiss or alternatively for Summary Judgment [28] and Plaintiff's Response [33]. Having carefully considered the parties' submissions and the applicable law, the undersigned recommends that the Motion [28] be granted and this action be dismissed with prejudice.

         FACTUAL BACKGROUND

         Plaintiff Junne Koh, proceeding pro se and in forma pauperis, is a post-conviction inmate in the custody of the Federal Bureau of Prisons currently housed at McRae Correctional Institution in Georgia. Plaintiff was previously housed at the Adams County Correctional Center (ACCC) in Washington, Mississippi. Plaintiff filed this lawsuit on March 8, 2017 alleging that Defendants did not provide him with fresh fruit, proper fitting clothing, and adequate dental care.

         Plaintiff sued Warden Berkebile because he was not given fresh fruit on a daily basis and he was not allowed to exchange his clothing as frequently as he desired. Plaintiff sued Dr. Washington, the dentist at ACCC, because he allegedly damaged Plaintiff's teeth while providing dental treatment. As a remedy for these alleged wrongs, Plaintiff seeks monetary damages and injunctive relief.[1]

         On November 6, 2017, Plaintiff moved to amend his Complaint [1] to add Bivens claims. Mot. [14]. The Court denied his motion to amend on November 21, 2017. Order [15]. On November 22, 2017, the Court dismissed Plaintiff's claims brought under 42 U.S.C. § 1983 because Defendants are not state actors and Plaintiff was housed in a federal prison. Order [16]. The only remaining claims are those brought under state law. Id.

         Defendants filed their Motion to Dismiss or alternatively for Summary Judgment [28] on September 4, 2018. Plaintiff filed his Response [33] on September 25, 2018. This matter is ripe for consideration.

         ANALYSIS

         Summary Judgment Standard

         The undersigned has considered the Motion [28] under the summary judgment standard. “Under Rule 56(c), summary judgment is proper ‘if the pleadings, depositions, answers to interrogatories, and admission 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.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed.R.Civ.P. 56(c)). The Court must view the evidence in the light most favorable to the non-moving party. Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004). If the moving party meets its burden, the “nonmovant must go beyond the pleadings and designate specific facts showing there is a genuine issue for trial.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).

         Summary judgment is proper “where a party fails to establish the existence of an element essential to his case and on which he bears the burden of proof.” Washington v. Armstrong World Indus., Inc., 839 F.2d 1121, 1122 (5th Cir. 1988). In the absence of proof, the Court does not “assume that the nonmoving party could or would prove the necessary facts.” Id. at 1075 (emphasis omitted). “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.'” McDonald v. Entergy Operations, Inc., 2005 WL 2474701, at *3 (S.D.Miss. Apr. 29, 2005) (quoting Kennett-Murray Corp. v. Bone, 622 F.2d 887, 892 (5th Cir. 1980)).

         Fresh Fruit and Clothing Claim

         Plaintiff states in his Memorandum in Support of Complaint [2] that he did not receive fresh fruit daily. Memo. [2] at 1. He also states that prisoners at ACCC are not allowed to exchange their old clothing for new clothing as often as Plaintiff would prefer. Id. at 2. The undersigned finds that these allegations do not give rise to a claim under Mississippi state law, either through common law or statute. Moreover, Plaintiff has not explained or ever discussed how these alleged conditions create a cause of action under state law. Plaintiff has failed to state a cause of action as to the alleged denial and delay of fresh fruit and clothing. Summary judgment should be granted in Defendants' favor as to Plaintiff's claims regrading fresh fruit and clothing.[2]

         Dental ...


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