United States District Court, S.D. Mississippi, Southern Division
MEMORANDUM OPINION & ORDER
H. WALKER, UNITED STATES MAGISTRATE JUDGE.
Demario Dontez Walker, proceeding pro se and in
forma pauperis, filed a 42 U.S.C. § 1983 prisoner
civil rights complaint alleging unconstitutional conditions
of confinement at the South Mississippi Correctional
Institution (SMCI). Doc. . Plaintiff previously has been
assessed three strikes and is therefore barred from filing
complaints in forma pauperis unless he is
“under imminent danger of serious physical
injury.” 28 U.S.C. § 1915(g); see Doc.
. In fact, Plaintiff has filed dozens of prisoner civil
rights lawsuits and accumulated at least three strikes under
the Prison Litigation Reform Act (PLRA). See Walker v.
Norwood, No. 3:08-cv-275-TSL-JCS, 2009 WL 387337
(S.D.Miss. Feb. 13, 2009); Walker v. Lewis, Civil
Action No. 3:12cv441-CWR-LRA (S.D.Miss. July 10, 2012)
(identifying some of Plaintiff's prior dismissed lawsuits
that counted as “strikes”).
original complaint, Plaintiff alleges repeated and ongoing
assaults and extortion by other inmates. He further alleges
that SMCI staff has lost control and authority over the
prison gang members. According to Plaintiff, SMCI staff has
failed to protect him from the assaults and has placed him in
a dangerous housing unit. Plaintiff also alleges
unconstitutional conditions of confinement in the
administrative segregation unit at SMCI. On March 21, 2017,
Plaintiff filed an amended complaint. Doc. . In the
amended complaint, Plaintiff reasserts that he was the victim
of assaults, sexual assaults, and extortion by prison gang
members, and that gang members forced him to hide contraband
in his rectum. Plaintiff further alleges that he received
Rule Violation Reports (RVRs) on January 19, 2017, that did
not comport with due process and were issued in retaliation.
Plaintiff complains that on March 10, 2017, Defendant
Johnathan Hunt placed a “red tag” on inmate
Fredderick Thompson for no reason other than Defendant Hunt
believed Plaintiff and Thompson were in a “dating
relationship”. Plaintiff then filed a motion to amend
complaint on March 21, 2017, which the Court granted in part.
Doc.  & . Then again on May 9, 2017, Plaintiff
filed a motion to amend complaint, which the Court granted.
Doc.  & . The amended complaints essentially
restate the claims in his complaint and amended complaint,
but with added details.
subsequently filed a series of motions to amend his complaint
and to add parties. On May 25, 2017, he filed a motion to
amend the complaint, a motion to add plaintiffs, and a motion
to add certain defendants. Doc.   . In the first
of these motions, he sought to substitute Pelicia Hall as
Defendant, based on her appointment as Commissioner of the
Mississippi Department of Corrections (MDOC). Doc. . He
also requested that inmate Fredderick Eugene Thompson be
allowed to join the lawsuit as a plaintiff. Id. In
the motion to add plaintiffs, he submitted a list of
approximately 70 additional inmates whom he wished to join to
his lawsuit. Doc. . In the motion to add defendants,
Plaintiff requested that Lt. B. Miller and Captain Lockhart
be added as defendants. Doc. . On June 27, 2017,
Plaintiff filed what was designated as yet another motion to
amend his complaint. Doc. . In fact, the pleading is a
34-page proposed complaint. On July 13, 2017, he filed
another motion to amend his complaint. Doc. . In the
two-page motion, he requested that Belinda Miller, Captain
Lockhart, Investigator Houston, Unknown K-9 Officers, Captain
Mark Davis, K-9 Officer Keys, and Officer Jamario Clark be
added as defendants. He also requested that several new
plaintiffs be joined to the lawsuit. Plaintiff then attached
a 45-page proposed Fifth Amended Complaint. Doc. [51-1]. By
order dated July 19, 2017, the Court denied for the most part
these five additional motions to amend the complaint. Doc.
. However, Plaintiff was permitted to proceed against two
new defendants (Lt. B. Miller and Captain Lockhart), as well
as on claims for assault and conversion. Id. at 7.
after the Court's order of July 19, 2017, Plaintiff filed
nine additional motions to amend his complaint, which the
Court denied. See Doc. . The Court conducted a
screening hearing on November 9, 2017, at which time
Plaintiff testified under oath regarding the allegations in
his complaint. At the hearing, Plaintiff received almost 600
pages of documents, which included relevant portions of
Plaintiff's institutional record, medical records, and
Administrative Remedy Program (ARP) documentation. The
parties consented to proceed before a United States
Magistrate Judge. The Court established a discovery deadline
of March 14, 2018, and a dispositive motion deadline of April
4, 2018. Doc. .
proceeded to file a plethora of discovery-related motions
prior to the discovery deadline, nineteen by the Court's
count. Meanwhile, on April 4, 2018, Defendants filed a motion
for summary judgment which asserted, among other things, that
Plaintiff failed to exhaust administrative remedies with
respect to all claims asserted in his original and amended
complaints. See Doc.  . In the interests
of judicial economy, the Court entered an order directing
Plaintiff to file a response limited to the exhaustion issue
and set a deadline of May 4, 2018, for Plaintiff to file his
response. Doc. . Plaintiff continued to file an
additional 16 discovery-related motions after the discovery
and motions deadlines had expired. In addition, he filed at
least 17 “responses” to Defendants' motion
for summary judgment.
in the interests of justice and judicial economy, the Court
determined that, prior to ruling on Defendants' motion
for summary judgment, Plaintiff should be afforded the
opportunity to file a single, consolidated motion for
discovery on the exhaustion issue. Doc. . Accordingly,
the Court set a deadline of July 6, 2018, for Plaintiff to
file one and only one motion for discovery limited to the
issue of exhaustion. The Court stayed all other discovery
until ruling on the exhaustion issue and directed Plaintiff
to refrain from filing any more discovery motions unrelated
to the exhaustion issue. Plaintiff duly filed a motion for
exhaustion-related discovery on July 10, 2018. Doc. .
The Court denied Plaintiff's motion. Doc. . The then
Court struck Plaintiff's 17 prior responses to summary
judgment and directed Plaintiff to file, by October 15, 2018,
a single response to Defendants' motion for summary
judgment, limited to the issue of exhaustion. Id. at
5. The Court later granted Plaintiff an extension to December
3, 2018, to file his single response to Defendants'
motion. Doc. .
not satisfied by the Court's admonition to file a single
response to summary judgment, Plaintiff has filed three
additional responses to summary judgment. See Doc.
  . Plaintiff later filed a motion to withdraw
his response filed on October 18, 2018, which motion the
Court now grants. Doc. . Thus, there remain two
responses to Defendants' motion for summary judgment.
Despite Plaintiff's breach of the Court's directive,
when ruling on Defendants' motion for summary judgment,
the Court will consider the following of Plaintiff's
pleadings: Plaintiff's response filed November 19, 2018
(Doc. 390); exhibits to the response filed on December 6,
2018 (Doc. ); and Plaintiff's response filed on
December 10, 2018 (Doc. ).
provides that “[t]he court shall grant summary judgment
if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a); Sierra Club,
Inc. v. Sandy Creek Energy Assocs., L.P., 627 F.3d 134,
138 (5th Cir. 2010). Where the summary judgment evidence
establishes that one of the essential elements of the
plaintiff's cause of action does not exist as a matter of
law, all other contested issues of fact are rendered
immaterial. Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986); Topalin v. Ehrman, 954 F.2d 1125, 1138
(5th Cir. 1992). In making its determinations of fact on a
motion for summary judgment, the court must view the evidence
submitted by the parties in a light most favorable to the
non-moving party. McPherson v. Rankin, 736 F.2d 175,
178 (5th Cir. 1984).
moving party has the duty to demonstrate the lack of a
genuine issue of a material fact and the appropriateness of
judgment as a matter of law to prevail on its motion.
Union Planters Nat'l Leasing v. Woods, 687 F.2d
117 (5th Cir. 1982). The movant accomplishes this by
informing the court of the basis of its motion, and by
identifying portions of the record which highlight the
absence of genuine factual issues. Topalian, 954
F.2d at 1131. “Rule 56 contemplates a shifting burden:
the nonmovant is under no obligation to respond unless the
movant discharges [its] initial burden of demonstrating
[entitlement to summary judgment].” John v. State
of Louisiana, 757 F.3d 698, 708 (5th Cir.
1985). Once a properly supported motion for summary judgment
is presented, the nonmoving party must rebut with
“significant probative” evidence. Ferguson v.
Nat'l Broad. Co., Inc., 584 F.2d 111, 114 (5th Cir.
of his response to summary judgment, Plaintiff cites to
Martin v. Harrison County Jail, 975 F.2d 192
(5th Cir. 1992) and argues that “a pro se
prisoner faced with a summary judgment motion must receive an
understandable notice of the requirement of the summary
judgment rules.” Doc.  at 3. In fact, the case
cited by Plaintiff stands for the exact opposite proposition.
In Martin the Fifth Circuit held that
“particularized additional notice of the potential
consequences of a summary judgment motion and the right to
submit opposing affidavits need not be afforded a pro se
litigant.” Id. at 193. Despite Plaintiff's
blatant misrepresentation of Fifth Circuit precedent,
Plaintiff demonstrates in his response to the motion for
summary judgment that he fully understands summary judgment
procedures. See Doc.  at 3-4.