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Walker v. Hollaway

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

July 8, 2019

DEMARIO DONTEZ WALKER PLAINTIFF
v.
ANGIE HOLLAWAY, et al. DEFENDANTS

          REPORT AND RECOMMENDATION

          ROBERT H. WALKER, UNITED STATES MAGISTRATE JUDGE

         Before the Court are motions for summary judgment filed by both the pro se Plaintiff [73] and by the Defendants [44], as well as a number of related motions which the undersigned will discuss in this report and recommendation, but will deal with via separate orders.

         Facts and Procedural History

         Demario Dontez Walker, Mississippi Department of Corrections (MDOC) inmate # L1');">162');">2');">2');">2');">2');">2');">2');">25, is presently incarcerated at Central Mississippi Correctional Facility (CMCF) according to the MDOC web site, serving sentences totaling 1');">13 years for three convictions of false pretense from Jeff Davis, Lamar and Rankin Counties. His tentative release date is June 9, 2');">2');">2');">2');">2');">2');">2');">202');">2');">2');">2');">2');">2');">2');">25. On September 7, 2');">2');">2');">2');">2');">2');">2');">201');">17, [1');">1" name="FN1');">1" id= "FN1');">1">1');">1] while he was confined at South Mississippi Correctional Institution (SMCI), Walker filed this civil rights lawsuit under 42');">2');">2');">2');">2');">2');">2');">2 U.S.C. § 1');">1983, naming as defendants Associate Warden Angie Hollaway, Case Manager Chasity Blakley, SMCI Superintendent Jacqualine (sic) Banks, Assistant Director of Offender Services Jarita Bivens, Corrections Officers Jamario Clark and Marcus E. Nelson, [2');">2');">2');">2');">2');">2');">2');">2" name="FN2');">2');">2');">2');">2');">2');">2');">2" id= "FN2');">2');">2');">2');">2');">2');">2');">2">2');">2');">2');">2');">2');">2');">2');">2] and MDOC Commissioner Pelicia Hall. Walker complains he was administratively reclassified to C-custody on August 2');">2');">2');">2');">2');">2');">2');">22');">2');">2');">2');">2');">2');">2');">2, 2');">2');">2');">2');">2');">2');">2');">201');">17 due to Rules Violations Reports (RVRs) issued to him in retaliation for his filing a prior' 1');">1983 lawsuit, Civil Action 1');">1:1');">17cv2');">2');">2');">2');">2');">2');">2');">27-RHW.[3] He alleges Blakley performed the reclassification which Hollaway approved, and as a result he was moved from housing Unit 1');">10 which he claims had no active gang members, to housing Unit 9 which is “nothing but gang members.” Bivens is alleged to have approved his transfer from Unit 1');">10 to Unit 9. [1');">1, p. 4-5] Walker states his prior lawsuit alleged that gang leaders forced him into “sexual slavery, ” and he asserts in this case that as of August 2');">2');">2');">2');">2');">2');">2');">22');">2');">2');">2');">2');">2');">2');">2, 2');">2');">2');">2');">2');">2');">2');">201');">17 (just six days before he signed his complaint) gang members are forcing him to return to the sex trade or be beaten, that he is blindfolded during sexual encounters, and is being starved and allowed to shower only twice a week. Id.

         Walker alleges he has reported Clark for sexually assaulting him on at least a dozen occasions between February 2');">2');">2');">2');">2');">2');">2');">22');">2');">2');">2');">2');">2');">2');">2, 2');">2');">2');">2');">2');">2');">2');">201');">16 and March 1');">10, 2');">2');">2');">2');">2');">2');">2');">201');">17.[4] He claims Clark is part of a gang and that he put out a statewide “hit” on Walker. [1');">1, pp. 5-6] As to Defendants Banks and Hall, Walker states only conclusory allegations that they “ordered the campagins (sic) of (1');">1) harassment (2');">2');">2');">2');">2');">2');">2');">2) retaliation (3) terror” which the remaining defendants carried out. [1');">1, p. 7]

         On September 7, 2');">2');">2');">2');">2');">2');">2');">201');">17, Walker was moved from SMCI to CMCF. [44-2');">2');">2');">2');">2');">2');">2');">2, p. 6] On September 2');">2');">2');">2');">2');">2');">2');">29, 2');">2');">2');">2');">2');">2');">2');">201');">17, he filed [6] a motion to amend his complaint to add new defendants and claims which the Court granted in part, adding as defendants Pamela Robinson, Director of Offender Services/Director of Classification because after Walker notified her of his situation, she approved his classification and transfer to CMCF; and Ron King, CMCF Superintendent, because he assigned Walker a top bunk (Walker claims King knew he was medically restricted to a lower bunk), provided Walker no hygiene and clothing, denied him mail, showers, recreation, cleaning supplies, legal material and writing supplies (requiring Walker to borrow a pen from another inmate), and housed him with violent inmates. [1');">16] The Court denied a second motion to amend to add claims under an invalidated portion of the Gender Motivated Violence Act, 34 USC § 1');">12');">2');">2');">2');">2');">2');">2');">2361');">1, and for lack of factual allegations to present a constitutional claim. [1');">15], [1');">17] By January 1');">1, 2');">2');">2');">2');">2');">2');">2');">201');">18, Walker was moved to the State Penitentiary (MSP) at Parchman, MS. [1');">14]

         Walker was released from prison in 2');">2');">2');">2');">2');">2');">2');">201');">18. As of June 1');">18, 2');">2');">2');">2');">2');">2');">2');">201');">18 he gave his address as 300 Lafayette Avenue in Leakesville, MS [37]; by July 1');">10, 2');">2');">2');">2');">2');">2');">2');">201');">18 his address changed to 91');">16 Inge Street, Jackson, MS [40]; and effective September 2');">2');">2');">2');">2');">2');">2');">20, 2');">2');">2');">2');">2');">2');">2');">201');">18 his address was 2');">2');">2');">2');">2');">2');">2');">22');">2');">2');">2');">2');">2');">2');">21');">1 N. Timber Street, Brandon, MS. [49] Although Walker did not identify them as such, the Leakesville address is the Greene County Jail, the Jackson address is a half-way house, and the Brandon address is the Rankin County Jail. [37]

         Defendants Hollaway, Blakley, Banks, Bivens, Clark, Hall, Robinson and King moved for summary judgment on September 2');">2');">2');">2');">2');">2');">2');">24, 2');">2');">2');">2');">2');">2');">2');">201');">18, asserting Walker failed to exhaust administrative remedies prior to filing suit, claiming they are entitled to sovereign immunity for all official capacity claims, and urging that Walker has failed to state an actionable claim against them. [44] Walker first responded on September 2');">2');">2');">2');">2');">2');">2');">28, 2');">2');">2');">2');">2');">2');">2');">201');">18, stating he did not oppose the motion except as to his claims against Jamario Clark and agreeing to dismissal of all other named Defendants. He argued his claims against Clark had “been carried through via ARP/PREA at MDOC to their end fully.” [50] Based on that response, the undersigned entered a Report and Recommendation recommending the summary judgment motion be granted as to all Defendants except Clark. [52');">2');">2');">2');">2');">2');">2');">2] On October 1');">11');">1, 2');">2');">2');">2');">2');">2');">2');">201');">18, Walker filed [53] a motion for extension of time to complete discovery, for assistance, for time in the library, and to withdraw [50] his response to the summary judgment motion. He also filed [54] a three-sentence motion for discovery on the issue of exhaustion and immunity, which was followed a week later with [56] another motion seeking extension of time to respond to the summary judgment motion, and also requesting dismissal of Defendants' motion and discovery on summary judgment issues. Walker also filed [57] his objection to the Report and Recommendation to dismiss all defendants save Clark.

         On October 31');">1, 2');">2');">2');">2');">2');">2');">2');">201');">18 Walker filed [59] a second response in opposition to Defendants' motion for summary judgment and [60] a third motion to amend the complaint. He filed [67] a supplemental (third) response opposing the summary judgment motion on December 1');">10, 2');">2');">2');">2');">2');">2');">2');">201');">18, and yet another (fourth) response [70] to Defendants' motion on December 2');">2');">2');">2');">2');">2');">2');">21');">1, 2');">2');">2');">2');">2');">2');">2');">201');">18, along with his own motion for summary judgment [73], and motions seeking a temporary restraining order [71');">1] to prohibit MDOC from housing him at MSP, CMCF, or SMCI; to supplement the complaint [72');">2');">2');">2');">2');">2');">2');">2] to clarify his claims; and for a copy of Defendants' file [75] because his own case file was reportedly destroyed by flooding in a storage room.[5] Walker also filed a fifth response to the summary judgment motion which he designated a “clarification” or “supplement” to his earlier response(s). In that document, Walker contends Defendants' motion is premature for lack of discovery, challenges documents submitted in support of Defendants' motion, and states he does not have his case file or access to a law library and is receiving medications for mental problems. [76]

         On January 2');">2');">2');">2');">2');">2');">2');">2, 2');">2');">2');">2');">2');">2');">2');">201');">19, Walker filed documents titled “additional evidence of compliance with exhaustion, ” a sixth response to Defendants' motion. These documents consist of:

1');">1. A September 5, 2');">2');">2');">2');">2');">2');">2');">201');">17 letter from ARP director R. Pennington to Walker at SMCI advising Walker that Pennington had forwarded Walker's letter to CID Chief Sean Smith for investigation of Walker's allegations, that he should contact Chief Smith or his team with questions or concerns regarding the issue, and that if Walker were not satisfied with CID's results upon completion of the investigation, Walker could submit his complaint to his facility's ARP office for consideration. [80-2');">2');">2');">2');">2');">2');">2');">2, pp. 1');">1, 3]
2');">2');">2');">2');">2');">2');">2');">2. An ARP form dated August 9, 2');">2');">2');">2');">2');">2');">2');">201');">17 and bearing case number CID, in which Walker reports that Marcus Nelson and others at SMCI “participated in sexual assault and a sex slave ring (forcing sex with others for money) pimping out gay inmates.” After reporting this conduct Walker states he received six RVRs, was removed from two jobs, placed in administrative segregation, removed from trusty status, and threatened with transfer to other violent facilities or units or lockdown. Walker requested that he be allowed to file criminal charges, not be transferred, and that retaliation stop. [80-2');">2');">2');">2');">2');">2');">2');">2, p. 2');">2');">2');">2');">2');">2');">2');">2]
3. A September 2');">2');">2');">2');">2');">2');">2');">25, 2');">2');">2');">2');">2');">2');">2');">201');">17 letter from Pennington to Walker at CMCF stating that Pennington had forwarded Walker's letter to CID Chief Smith for investigation, that he should contact Chief Smith or his team with questions or concerns regarding the issue, and if Walker were not satisfied with CID's results at the completion of the investigation, he could submit his complaint to his facility's ARP office for consideration. [80-2');">2');">2');">2');">2');">2');">2');">2, pp. 4, 7]
4. A handwritten document labeled “Sensitive Issue ARP, ” stamped received by ARP September 2');">2');">2');">2');">2');">2');">2');">25, 2');">2');">2');">2');">2');">2');">2');">201');">17, in which Walker states he was sexually assaulted by Officers Clark and Nelson and several inmates prior to transportation to CMCF and reiterating his claims of retaliation via RVRs, administrative reclassification, etc. He requested that ...

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