Bennett v. Morris et al
Filing
149
MEMORANDUM OPINION pursuant to 148 Final Judgment. Signed by District Judge Michael P. Mills on 1/6/20. (Breeden, Autumn)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
DEVIN BENNETT
PLAINTIFF
v.
No. 4:12CV108-MPM-DAS
CAPTAIN NORRIS MORRIS, ET AL.
DEFENDANTS
MEMORANDUM OPINION
This matter comes before the court on the pro se prisoner complaint of Devin Bennett, who
challenges the conditions of his confinement under 42 U.S.C. § 1983. For the purposes of the Prison
Litigation Reform Act, the court notes that the plaintiff was incarcerated when he filed this suit. The
plaintiff has brought the instant case under 42 U.S.C. § 1983, which provides a federal cause of action
against “[e]very person” who under color of state authority causes the “deprivation of any rights,
privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983. The plaintiff
alleges that the general conditions of his confinement while incarcerated at the Mississippi State
Penitentiary were unconstitutionally harsh. The defendants have moved for summary judgment; the
plaintiff has responded, and the parties have submitted additional briefing. The matter is ripe for
resolution. For the reasons set forth below, the defendants’ motion for summary judgment will be
granted, and judgement will be entered for the defendants.
Summary Judgment Standard
Summary judgment is appropriate if the “materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations, stipulations (including those
made for purposes of the motion only), admissions, interrogatory answers, or other materials” show
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) and (c)(1). “The moving party must show that if the evidentiary
material of record were reduced to admissible evidence in court, it would be insufficient to permit the
nonmoving party to carry its burden.” Beck v. Texas State Bd. of Dental Examiners, 204 F.3d 629,
633 (5th Cir. 2000) (citing Celotex Corp. v. Catrett, 477 U.S. 317 (1986), cert. denied, 484 U.S. 1066
(1988)). After a proper motion for summary judgment is made, the burden shifts to the non-movant to
set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986); Beck, 204 F.3d at 633; Allen v.
Rapides Parish School Bd., 204 F.3d 619, 621 (5th Cir. 2000); Ragas v. Tennessee Gas Pipeline
Company, 136 F.3d 455, 458 (5th Cir. 1998).
Substantive law determines what is material. Anderson, 477 U.S. at 249. “Only disputes over
facts that might affect the outcome of the suit under the governing law will properly preclude the entry
of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id., at
248. If the non-movant sets forth specific facts in support of allegations essential to his claim, a
genuine issue is presented. Celotex, 477 U.S. at 327. “Where the record, taken as a whole, could not
lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538 (1986);
Federal Savings and Loan, Inc. v. Krajl, 968 F.2d 500, 503 (5th Cir. 1992). The facts are reviewed
drawing all reasonable inferences in favor of the non-moving party. Allen, 204 F.3d at 621; PYCA
Industries, Inc. v. Harrison County Waste Water Management Dist., 177 F.3d 351, 161 (5th Cir.
1999); Banc One Capital Partners Corp. v. Kneipper, 67 F.3d 1187, 1198 (5th Cir. 1995). However,
this is so only when there is “an actual controversy, that is, when both parties have submitted evidence
of contradictory facts.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994); see Edwards v.
Your Credit, Inc., 148 F.3d 427, 432 (5th Cir. 1998). In the absence of proof, the court does not
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“assume that the nonmoving party could or would prove the necessary facts.” Little, 37 F.3d at 1075
(emphasis omitted).
The very purpose of summary judgment is to “pierce the pleadings and assess the proof in
order to see whether there is a genuine issue for trial.” Advisory Committee Note to the 1963
Amendments to Rule 56. Indeed, “[t]he amendment is not intended to derogate from the solemnity of
the pleadings[;] [r]ather, it recognizes that despite the best efforts of counsel to make his pleadings
accurate, they may be overwhelmingly contradicted by the proof available to his adversary.” Id. The
non-moving party (the plaintiff in this case), must come forward with proof to support each element of
his claim. The plaintiff cannot meet this burden with “some metaphysical doubt as to the material
facts,” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348,
1356 (1986), “conclusory allegations,” Lujan v. National Wildlife Federation, 497 U.S. 871, 871-73,
110 S.Ct. 3177, 3180 (1990), “unsubstantiated assertions,” Hopper v. Frank, 16 F.3d 92 (5th Cir.
1994), or by a mere “scintilla” of evidence, Davis v. Chevron U.S.A., Inc., 14 F.3d 1082 (5th Cir. 1994).
It would undermine the purposes of summary judgment if a party could defeat such a motion simply
by “replac[ing] conclusory allegations of the complaint or answer with conclusory allegations of an
affidavit.” Lujan v. National Wildlife Federation, 497 U.S. 871, 888, 110 S.Ct. 3177, 3188 (1990). In
considering a motion for summary judgment, a court must determine whether the non-moving party’s
allegations are plausible. Matsushita, supra. (emphasis added). “[D]etermining whether a complaint
states a plausible claim is context-specific, requiring the reviewing court to draw on its experience and
common sense.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937 (2009) (discussing plausibility of
claim as a requirement to survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6)).
In considering a motion for summary judgment, once the court “has determined the relevant
set of facts and drawn all inferences in favor of the nonmoving party to the extent supportable by the
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record, [the ultimate decision becomes] purely a question of law.” Scott v. Harris, 550 U.S. 372, 381
(2007) (emphasis in original). “When opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not
adopt that version of the facts for purposes of ruling on the motion for summary judgment.” Id. at
380.
Undisputed Material Facts
Mr. Bennett alleged facts to support various constitutional violations in his original complaint
and via several amendments to that complaint. The allegations in his original complaint involved a
claim of unconstitutionally harsh general conditions of confinement, while those in his amendments
involve problems with preparation and service of food (which is also a general conditions of
confinement claim), retaliation (in the form of declining to repair a television antenna), and bare
allegations of denial of adequate medical care and “security.”
Original Claims (Unconstitutional general conditions of confinement)
Leaking cell (No. 1)
Mr. Bennett alleges that “several” cells leak when it rains on A-Zone. [81] at 2. He concedes,
however, that the defendants attempted to repair the leaks, but the repairs are not completely
watertight when it rains. Mr. Bennett has not alleged that he faced a substantial risk of harm resulting
from an occasional leak during a rain storm.
Lack of Cleaning supplies (No. 2)
Bennett also claims that inmates are not receiving adequate cleaning supplies. [81] at 2. He
does not claim a total deprivation of cleaning supplies, but instead that inmates only receive “one or
two out of the four chemical agents we are supposed to receive” and that “sometimes those are
watered down.” Id. He does not allege he is completely deprived of cleaning products nor that the
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cleaning supplies he receives are totally inadequate. Rather, he alleges that he would like additional
choice regarding his cleaning supplies and he would like them to have a stronger concentration.
Window screens and pest control (No. 4)
Mr. Bennett claims that there are still gaps in “several” of the windows in Unit 29-J and that
“several” of the screens that have been placed over the windows do not fit properly. [81] at 2. This
claim relates to pest control. While Mr. Bennett concedes that MDOC’s efforts at pest control are
consistent, he feels they are nonetheless inadequate. Id. He believes that MDOC uses weak pesticides
and does not spray in all the areas that should be sprayed, though the pest control personnel
consistently spray once a month. Id.
Inadequate lighting (No. 5)
Bennett claims the lighting in his cell is inadequate. [81] at 2. However, he also alleges that
MCOC later installed substantially brighter bulbs.
Housing of Mentally Ill Offenders (Nos. 6 & 7)
Mr. Bennett complains that mentally ill inmates sentenced to death who are housed with him
in Unit 29 disrupt his quality of life. [81] at 3. MDOC does not, however, have discretion in housing
inmates sentenced to death. Male inmates convicted of a capital offense where the death sentence has
been imposed must, by statute, be committed to the custody of MDOC and transported to the
maximum-security cell block at Parchman. Miss. Code Ann. § 99-19-55(1). The exclusive remedy
for removing such an inmate that may become mentally ill after his criminal judgment is through an
application seeking post-conviction relief with the Mississippi Supreme Court. Miss. Code Ann. § 9919-57(2)(a). Further, the legislature has defined a mentally ill inmate in this context to be an inmate
the Mississippi Supreme Court finds does “not [to] have sufficient intelligence to understand the
nature of the proceedings against him, what he was tried for, the purpose of his punishment, the
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impending fate that awaits him, and a sufficient understanding to know any fact that might exist that
would make his punishment unjust or unlawful and the intelligence requisite to convey that
information to his attorneys or the court.” Miss. Code Ann. § 99-19-57(2)(b).
Rotation of Close Custody Offenders (No. 8)
Mr. Bennett alleges that close custody offenders, who are not part of the High Risk Incentive
Program, are not being rotated out of Unit 29-J every thirty days. [81] at 3. MDOC currently houses
Close Custody-High Risk offenders in the death row building. Aff. of J. Williams, ¶ 4. However, these
inmates are not housed in cells with death row inmates. Id. MDOC does, in fact, do a 30-day rotation
with these Close Custody-High Risk offenders. Id.
Death Row Incentive Program (No. 9)
The plaintiff claims that, while there is a death row incentive program in place, it is not being
properly regulated. [81] at 3.
Hawk call (No. 11)
Mr. Bennett claims that the hawk call purchased by MDOC to scare away birds stopped
working and has not been replaced. [81] at 3.
Additional Canteen Items (No. 14)
Bennett complains that there are not additional items beyond the normal canteen which death
row inmates can purchase. [81] at 3. He states that this is “not complicated” as it is done
electronically, and the tier workers could have “15-20 additional items available to order from canteen
it[’]s simply a matter of creating a special list only for them.”
New Toothbrushes (No. 15)
Mr. Bennett complains that he has not received a new toothbrush every quarter in violation of
the settlement agreement. [81] at 3.
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Proper installation of digital antenna (No. 17)
Mr. Bennett claims that in January 2016 MDOC installed a digital antenna, but “they did not
know what they were doing and as a result, he lost some of his in-cell programming.” [81] at 4. He
alleges that a technician ultimately fixed the problem and that cable TV was restored to Unit 29-J. Id.
He claims, however, that a pipe burst in October 2016 which again knocked out his antenna reception.
NEW CLAIMS
The court also allowed Bennett to amend his complaint to add new claims. [94]. In his
Amended Complaint, Bennett complains about the preparation and serving of food and kitchen
oversight in Unit 29, “retaliation”, “medical care”, and “security.” [85] at 4. He does not expound on
these claims, except to allege that the defendants are delaying the repair of the digital antenna “in
retaliation.” [81] at 4.
Unit 29 Kitchen
In July 2016 the kitchen in Unit 29 was closed by the Mississippi State Department of Health
(“MSDH”) based on poor sanitation conditions, repeated health inspection violations, and dilapidated
and inoperable kitchen equipment. Aff. of J. Williams, ¶ 5. After the kitchen closed, MDOC spent
approximately $1 million to renovate it and supply new equipment. Id. at ¶ 6. MSDH inspected the
kitchen on December 21, 2016, and on June 8, 2017, and gave the facility an “A” score. Id. at ¶¶ 7-8.
The Unit 29 kitchen reopened on June 14, 2017. Id. at ¶ 9. MSDH inspected the kitchen on October
24, 2017, and on June 6, 2018, and gave the facility a “B” score. Id. at ¶¶ 10-11. MSDH inspected the
kitchen on November 19, 2018, and again gave the facility an “A” score. Id. at ¶ 12.
Retaliation
Mr. Bennett believes that the defendants have delayed the repair of the digital antenna “in
retaliation.” [81] at 4. He specifically alleged the antenna did not work because “they did not know
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what they were doing and as a result, Plaintiff lost some of his in-cell programming.” [81] at 4.
Bennett further claims a technician ultimately fixed the problem, and cable TV was restored to Unit
29-J, but that a pipe burst in October 2016 which knocked out his antenna reception. Id.
Medical Care
Mr. Bennett has made a bare claim for denial of medical care – without identifying his
medical problem or the treatment he believes he should have received for it. He has not stated how
any of the defendants have been deliberately indifferent to his medical needs.
Security
Bennett also makes a bald complaint that there are “problems with … security” at Unit 29-J.
[85] at 4. Mr. Bennett has made no factual allegations regarding his “security” claims in his Amended
Complaint.
General Conditions of Confinement
Most of Mr. Bennett’s claims in this case involve allegations regarding the general conditions
of his confinement. “[T]he Eighth Amendment may afford protection against conditions of
confinement which constitute health threats but not against those which cause mere discomfort or
inconvenience.” Wilson v. Lynaugh, 878 F.2d 846, 849 (5th Cir.1989), cert. denied, 493 U.S. 969
(1989)(citation omitted). “Inmates cannot expect the amenities, conveniences, and services of a good
hotel.” Id. at 849 n.5 (citation omitted). Prison officials have certain duties under the Eighth
Amendment, but these duties are only to provide prisoners with “humane conditions of confinement,”
including “adequate food, clothing, shelter, and medical care . . . .” Woods v. Edwards, 51 F.3d 577,
581 n.10 (5th Cir. 1995) (quoting Farmer v. Brennan, 511 U.S. 825, 832 (1994)). Considering the
“totality of the circumstances,” McCord v. Maggio, 910 F.2d 1248 (5th Cir. 1990), the instant claims do
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not rise to the level of a constitutional violation. The plaintiff has not identified any “basic human
need” which he was denied for an unreasonable period of time. See Woods, 51 F.3d at 581.
None of Mr. Bennett’s allegations regarding general conditions of confinement rise to the level
of a constitutional violation. As to a leaking cell, he has not alleged that he suffered substantial harm
from the water entering his unit, and, in any event, a cell that leaks during a rainstorm, without more,
does not rise to the level of a constitutional violation. See Cotton v. Taylor, 176 F.3d 479, 1999 WL
155652, at *2 (5th Cir. 1999) (per curiam) (unpublished)(conditions of confinement violated Eighth
Amendment where plaintiffs testified that, due to leaking roofs, “there was so much water on the floor
at times that the electrical receptacles would spark and smoke and that they feared electrocution”).
His claim regarding inadequate cleaning supplies is likewise without merit. He complains
that he would like more choice regarding his cleaning supplies, including supplies with more
concentrated chemicals. He does not allege that he faces a substantial risk of harm resulting from the
cleaning products he receives. Further, Mr. Bennet has not alleged that the defendants were
deliberately indifferent regarding cell cleanliness. He concedes that he receives cleaning supplies, but
not the supplies he would prefer. Put simply, prisoners possess no constitutional right to any particular
cleaning supplies: “Prisoners simply are not entitled to the cleaning supplies of their choice.” Thomas
v. Gusman, Civ. Action No. 11–1424, 2012 WL 607970, at *4 (E.D.La. Jan. 27, 2012), adopted, 2012
WL 607698 (E.D.La. Feb. 24, 2012); see also Simmons v. Gusman, Civ. Action No. 14–1907, 2015
WL 151113, at *5 (E.D.La. Jan. 12, 2015); accord Tallmore v. Hebert, Civ. Action No. 07–1220, 2008
WL 2597939, at *3 (W.D.La. May 28, 2008) (“There is simply no constitutional requirement that any
specific type of disinfectant be used by prison officials.”) (adopted by Doherty, J., on June 26, 2008);
Ellis v. Crowe, Civ. Action No. 09–3061, 2010 WL 724158, at * 16 (E.D.La. Feb. 19, 2010)(rejecting
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a prisoner's claim that the cleaning supplies provided were not “the right stuff”). These allegations fail
to state a constitutional claim.
Mr. Bennett also argues that MDOC’s pest control program, while consistent, is nonetheless
inadequate. However, the very fact that that MDOC’s pest control efforts are consistent undermines
the argument that they are poor enough to constitute deliberate indifference. The presence of insects
and pests in a rural Mississippi prison unit does not, alone, establish a constitutional violation. See,
e.g., Alex v. Stalder, 73 F.App’x 80, 2003 WL 21756781 (5th Cir. June 24, 2003) (fact that snake came
into prisoner's cell, and that he had been bitten by ants and spiders, did not establish an Eighth
Amendment violation and the case was correctly dismissed as frivolous); Benjamin v. Gusman, civil
action no. 17-07014, 2018 WL 1448759 (E.D. La., February 22, 2018), Report adopted at 2018 WL
1419870 (E.D. La., March 22, 2018) (“mere presence of spiders or such similar pests does not rise to
the level of a constitutional violation” even though plaintiff was bitten). These allegations fail to state
a constitutional claim.
The plaintiff has not supported his claim regarding insufficient lighting with factual
allegations. Mr. Bennett alleged in his response to the defendants’ motion for summary judgment that
he does not know what the light level is inside his cell. He states, however, that MDOC has now
installed new bulbs which are significantly brighter than the old ones. Further, he has not alleged facts
to show that the level of light in his cell has exposed him to a substantial risk of serious harm. As
such, he has not stated a claim for which relief could be granted as to the level of light in his cell.
Mr. Bennett also claims that the defendants violated the Eighth Amendment prohibition
against cruel and unusual punishment by housing on Death Row mentally ill inmates who have been
sentenced to death with the other Death Row inmates who are not mentally ill. The Mississippi
Department of Corrections is, however, bound by statute to house male inmates sentenced to death in
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the maximum-security cell block at the Mississippi State Penitentiary (Death Row). See Miss. Code
Ann. § 99-19-55(1). The only way to house a mentally ill Death Row inmate elsewhere is through an
application seeking post-conviction collateral relief with the Mississippi Supreme Court. Miss. Code
Ann. § 99-19-57(2)(a). Even then, the Legislature has narrowly defined “mentally ill” in this context
to mean an inmate who “does not have sufficient intelligence to understand the nature of the
proceedings against him, what he was tried for, the purpose of his punishment, the impending fate that
awaits him, and a sufficient understanding to know any fact that might exist that would make his
punishment unjust or unlawful and the intelligence requisite to convey that information to his
attorneys or the court.” Miss. Code Ann. § 99-19-57(2)(b). The defendant MDOC employees do not
have the power to house mentally ill Death Row inmates anywhere other than Unit 29-J. This
allegation does not state a valid constitutional claim.
Mr. Bennett claims that close custody offenders, who are not part of the High Risk Incentive
Program, are not being rotated out of Unit 29-J every thirty days. [81] at 3. The evidence available
shows, however, that close custody inmates are being rotated out every 30 days. Prisons are
“necessarily-dangerous places,” which “house society’s most antisocial and violent people in close
proximity with one another,” thereby making it inevitable that “some level of brutality ... among
prisoners” may occur. Farmer v. Brennan, supra, 511 U.S. at 858–59 (Thomas, J., concurring). See
also Verrette v. Major, 2011 WL 3269319, *2 (W.D. La. July 29, 2011) (dismissing an inmate's failureto-protect claim upon a finding that, even if the defendant was aware of an inmate's history of
violence, “[p]risons are dangerous places housing dangerous people” and “[i]t is unreasonable to
believe persons overseeing the classification of inmates for work assignments and housing can prevent
all potential prisoner-on-prisoner violence”). Mr. Bennett has not alleged that he lives in fear for his
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safety from the Close Custody-High Risk inmates; instead, he alleges that these inmates are engaging
in disruptive behavior. [81] at 3. This is not enough to establish a constitutional violation.
The plaintiff claims that the Death Row incentive program is not being properly regulated.
[81] at 3. He claims that the privilege of playing basketball occurs on a first come first serve basis,
and is not reserved for those that earned the incentive. Id. There is no constitutional right for an
inmate to have access to an incentive program; as such, this allegation will be dismissed for failure to
state a claim upon which relief could be granted.
Mr. Bennett claims that the hawk call used to repel birds has broken and no longer keeps
birds away from Unit 29. Inmates, however, have no constitutional right to be free from birds during
yard call. In any event, as the defendants attempted to alleviate the bird problem by installing the
hawk call, Mr. Bennet has not shown that they have been deliberately indifferent in addressing the
problem.
Bennett alleges that Death Row inmates are permitted only regular canteen items. He argues
that addressing this problem is “not complicated” as it is done electronically, and the tier workers
could have “15-20 additional items available to order from canteen it[’]s simply a matter of creating a
special list only for them.” The inability to purchase additional items beyond basic canteen items does
not rise to the level of a constitutional violation as it does not implicate the deprivation of a basic
human need. These allegations fail to state a claim upon which relief could be granted.
Mr. Bennett alleges that he has not received a new toothbrush every quarter in violation of a
previously negotiated settlement agreement. [81] at 3. He has not alleged that he has been completely
deprived of a toothbrush, only that he has not received a new one in accordance with the settlement
agreement. This is simply not sufficient to trigger a claim of inadequate access to personal hygiene
items.
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Mr. Bennett claims that in January 2016 MDOC installed a digital antenna, but “they did not
know what they were doing and as a result, he lost some of his in-cell programming.” [81] at 4. The
denial of several channels of cable television simply does not rise to the level of a constitutional
violation.
Mr. Bennett also alleges that the Unit 29 kitchen is unsanitary. Indeed, the kitchen was
closed down for that reason in 2016. However, as reflected by the MSDH inspections, MDOC and its
contract vendor, Aramark, have continually improved the equipment, kitchen practices, and food
quality in the Unit 29 kitchen since it reopened. The kitchen then completely renovated and has
received either an “A” or “B” score from the Health Department since. In any event, Mr. Bennett has
not shown that he faced a substantial risk of serious harm from the condition of the Unit 29 kitchen; as
such, he has not shown that the defendants were deliberately indifferent to his health regarding kitchen
conditions.
Retaliation
Devin Bennett believes that the defendants are delaying the repair of the Unit 29 digital
antenna “in retaliation.” [81] at 4. Prison officials may not retaliate against prisoners for exercising
their constitutional rights. Morris v. Powell, 449 F.3d 682, 684 (5th Cir. 2006). On the other hand,
courts must view such claims with skepticism to keep from getting bogged down in every act of
discipline prison officials impose. Id. The elements of a claim under a retaliation theory are the
plaintiff’s invocation of “a specific constitutional right,” the defendant’s intent to retaliate against the
plaintiff for his or her exercise of that right, a retaliatory adverse act, and causation, i.e., “but for the
retaliatory motive the complained of incident . . . would not have occurred.” Woods v. Smith, 60 F.3d
1161, 1166 (5th Cir.1995) (citations omitted ), cert. denied, 516 U.S. 1084, 116 S. Ct. 800, 133 L. Ed.
2d 747 (1996). A prisoner seeking to establish a retaliation claim must also show that the prison
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official’s conduct was sufficiently adverse so that it would be capable of deterring a person of ordinary
firmness from exercising his constitutional rights in the future. Winding v. Grimes, 4:08CV99-FKB,
2010 WL 706515 at 3 (S.D. Miss. Feb. 22, 2010); citing Morris v. Powell, 449 F.3d 682, 684–85 (5th
Cir. 2006) at 685. A single incident involving a minor sanction is insufficient to prove retaliation.
Davis v. Kelly, 2:10CV271-KS-MTP (citing Jones v. Greninger, 188 F.3d 322, 325 (5th Cir. 1999),
2:10CV271-KS-MTP, 2012 WL 3544865 Id.). Similarly, inconsequential (de minimis) acts by prison
officials do not give rise to an actionable retaliation claim. See Morris at 685.
In this case, Mr. Bennett must prove that he engaged in constitutionally protected activity
(seeking redress for grievances), faced significant adverse consequences, and that such action was
taken “in an effort to chill [his] access to the courts or to punish [him]for having brought suit.”
Enplanar, Inc. v. Marsh, 11 F.3d 1284, 1296 (5th Cir.), cert. denied, 513 U.S. 926, 115 S. Ct. 312, 130
L. Ed. 2d 275 (1994); see also Serio v. Members of Louisiana State Board of Pardons, 821 F.2d 1112,
1114 (5th Cir.1987). The showing in such cases must be more than the prisoner’s “personal belief that
he is the victim of retaliation.” Woods v. Edwards, 51 F.3d 577, 580 (5th Cir. 1995). Johnson v.
Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997).
The Fifth Circuit has made clear the dangers of permitting retaliation claims to proceed in the
absence of factual allegations to support an inference of a retaliatory motive. In Whittington v.
Lynaugh, 842 F.2d 818, 819 (5th Cir. 1988), the plaintiff, Daniel Johnson, had filed numerous
lawsuits against administrators and staff within the Texas prison system. The defendants then
denied Johnson’s request to have his custody status upgraded, and Johnson alleged that the
denial was in retaliation for filing his previous suits. Id. The Fifth Circuit rejected Johnson’s
claim – and explained why courts must insist upon specific factual allegations to support an
inference of retaliation:
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If we were to hold that [Johnson] by his allegations in this case had established a case
which was entitled to the full panoply of discovery, appointment of counsel, jury trial
and the like, we would be establishing a proposition that would play havoc with every
penal system in the country. Prison administrators must classify and move prisoners.
It is a virtual truism that any prisoner who is the subject of an administrative decision
that he does not like feels that he is being discriminated against for one reason or
another, such as the past filing of a grievance, a complaint about food or a cellmate, or
a prior complaint that he was not being treated equally with other prisoners. If we
were to uphold the further pursuit of [Johnson’s] complaint in this case we would be
opening the door to every disgruntled prisoner denied the next level of trustyship,
reassigned to another prison job, moved to another cell, [or] claiming his shoes were
uncomfortable, to bring such a suit.
Whittington v. Lynaugh, 842 F.2d 818, 819 (5th Cir. 1988).
Prisoners routinely file grievances against prison staff on an ongoing basis, for any
number of reasons. As such, it is not uncommon for a prisoner to file a grievance, then receive a
Rule Violation Report sometime thereafter. Thus, to avoid turning nearly every charge of prison
rule violations against a prisoner into a claim of retaliation, courts insist upon additional
allegations or evidence to substantiate a retaliation claim, such as prison staff issuing threats of
disciplinary action if an inmate files further grievances, staff members pulling an inmate aside to
threaten him, members of prison staff perpetrating unprovoked acts of violence against an
inmate, or prison staff members wholly fabricating charges of prison rule violations against an
inmate. See Decker v. McDonald, 2010 WL 1424322 (E.D. Tex. 2010) (Magistrate Judge’s
Report and Recommendation) (unpublished), adopted by the District Court, 2010 WL 1424292
(E.D. Tex.) (unpublished).
First, Mr. Bennett has not shown that a problem with the digital antenna qualifies as an
adverse retaliatory act, such that it would deter a person of ordinary firmness from further exercising
his constitutional rights. See Morris, 449 F.3d at 684-85, 686. Even if a failure to repair the digital
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antenna constituted a qualifying adverse retaliatory act, Bennett has not alleged facts showing intent
on the part of a defendant to retaliate against him for exercising his constitutional rights. In addition,
he specifically alleged the antenna did not work because “[the repair technicians] did not know what
they were doing,” not out of a desire to retaliate. [81] at 4. Bennett further claims a technician
ultimately fixed the problem, and cable TV was restored to Unit 29-J, but that a pipe burst in October
2016 which knocked out his antenna reception. Id. Thus, there is no evidence in this matter to
suggest that “but for” a retaliatory motive on the part of the defendants, Bennett’s digital antenna
service in his cell would have been uninterrupted. This claim is without merit.
In this case, Mr. Bennett has offered only his personal belief that the defendants have
delayed repairing the digital antenna in an effort to retaliate against him (presumably for seeking
redress for these various grievances, though he does not elaborate). As set forth above, an
inmate’s personal belief that he is the victim of retaliation does not rise to the level of a § 1983
claim for retaliation. Woods, supra.
Denial of Medical Treatment
As to this claim, Mr. Bennett alleges only that the defendants denied him medical treatment,
without identifying his medical issue or the treatment he believes the defendants should have provided
to him. In order to prevail on an Eighth Amendment claim for denial of medical care, a plaintiff must
allege facts which demonstrate “deliberate indifference to the serious medical needs of prisoners
[which] constitutes ‘unnecessary and wanton infliction of pain’ proscribed by the Eighth Amendment
. . . whether the indifference is manifested by prison doctors or prison guards in intentionally denying
or delaying access to medical care . . . .” Estelle v. Gamble, 429 U.S. 97, 104-105, 50 L. Ed. 2d 251,
260 (1976); Mayweather v. Foti, 958 F.2d 91, 91 (5th Cir. 1992). The test for establishing deliberate
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indifference is one of “subjective recklessness as used in the criminal law.” Farmer v. Brennan, 511
U.S. 825, 837 (1994). Under this standard, a state actor may not be held liable under 42 U.S.C. §
1983 unless plaintiff alleges facts which, if true, would establish that the official “knows of and
disregards an excessive risk to inmate health or safety; the official must both be aware of facts from
which the inference could be drawn that a substantial risk of serious harm exists, and he must also
draw the inference.” Id. at 838. Only in exceptional circumstances may a court infer knowledge of
substantial risk of serious harm by its obviousness. Id. Negligent conduct by prison officials does not
rise to the level of a constitutional violation. Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662 (1986),
Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668 (1986). In cases arising from delayed medical
attention rather than a clear denial of medical attention, a plaintiff must demonstrate that he suffered
substantial harm resulting from the delay in order to state a claim for a civil rights violation. Mendoza
v. Lynaugh, 989 F.2d 191, 193 (5th Cir. 1993); Campbell v. McMillin, 83 F. Supp. 2d 761 (S. D. Miss.
2000). A prisoner’s mere disagreement with medical treatment provided by prison officials does not
state a claim against the prison for violation of the Eighth Amendment by deliberate indifference to his
serious medical needs. Gibbs v. Grimmette, 254 F.3d 545 (5th Cir.2001), Norton v. Dimazana, 122
F.3d 286, 292 (5th Cir. 1997).
Mr. Bennett has not provided any facts to support his allegation of denial of medical care. As
such, he has failed to state a constitutional claim regarding this issue.
Security
Mr. Bennett merely mentions “security” in his amended complaint, without providing any
facts to define or support that claim. He has not shown that he faces a substantial risk of serious harm
to which prison officials were deliberately indifferent, Farmer, 511 U.S. at 834; as such, this allegation
must be dismissed for failure to state a claim upon which relief could be granted.
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Conclusion
For the reasons set forth above, none of the plaintiff’s claims have merit. The defendants’
motion for summary judgment will, therefore, be granted, and judgment will be entered in favor of the
defendants. A final judgment consistent with this memorandum opinion will issue today.
SO ORDERED, this, the 6th day of January, 2020.
/s/ Michael P. Mills____________________
UNITED STATES DISTRICT JUDGE
NORTHERN DISTRICT OF MISSISSIPPI
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