United States District Court, S.D. Mississippi, Western Division
REPORT AND RECOMMENDATION
MICHAEL T. PARKER, UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on Defendants' Motion to
Dismiss or alternatively for Summary Judgment  and
Plaintiff's Response . Having carefully considered
the parties' submissions and the applicable law, the
undersigned recommends that the Motion  be granted and
this action be dismissed with prejudice.
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
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.
November 6, 2017, Plaintiff moved to amend his Complaint 
to add Bivens claims. Mot. . The Court denied
his motion to amend on November 21, 2017. Order . 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 . The only remaining claims are those
brought under state law. Id.
filed their Motion to Dismiss or alternatively for Summary
Judgment  on September 4, 2018. Plaintiff filed his
Response  on September 25, 2018. This matter is ripe for
undersigned has considered the Motion  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).
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
Fruit and Clothing Claim
states in his Memorandum in Support of Complaint  that he
did not receive fresh fruit daily. Memo.  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