Hurd v. Stanciel et al

Filing 25

MEMORANDUM OPINION re 24 Order on Report and Recommendations,. Signed by District Judge Sharion Aycock on 5/18/16. (jlm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
ROCKY C. HURD

PLAINTIFF

v.

No. 4:15CV73-SA-JMV

WARDEN SONJA STANCIEL, ET AL.

DEFENDANTS

MEMORANDUM OPINION
This matter comes before the court on the objections by the pro se prisoner Rocky C. Hurd to
the Magistrate Judge’s Report and Recommendation that the instant case be dismissed for failure to
state a claim upon which relief could be granted. 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. As discussed below, the court
will approve and adopt the Report and Recommendation in part, but permit some of the plaintiff’s
claims to move forward.
Discussion
In discussing the plaintiff’s complaint, the Magistrate Judge divided the plaintiff’s claims into
three categories: (1) denial of adequate medical treatment (worn out shoes and back pain), (2) denial
of due process, and (3) general conditions of confinement (slippery shower and athlete’s foot
contracted from standing water). The Magistrate Judge recommended dismissing all of these claims
for failure to state a claim upon which relief could be granted. The Magistrate Judge also separately
recommended that defendants Warden Sonja Stanciel, Commissioner Marshall Fisher, and

Superintendent Earnest Lee be dismissed because none of these defendants had any personal
involvement in the events giving rise to this suit.
After the Spears hearing, Mr. Hurd filed a 62-page “Motion of Amended [Brief] Statement of
Facts,” which the court interprets as a supplement to the complaint. However, most of the new
allegations occurred after Mr. Hurd filed the instant complaint (June 4, 2015); as such, he could not
have exhausted his administrative remedies as to these allegations prior to filing this case. Although
exhaustion of administrative remedies is an affirmative defense, normally to be pled by a defendant,
the court may dismiss a pro se prisoner claim if failure to exhaust is apparent on the face of the
complaint. Carbe v. Lappin, 492 F.3d 325 (5th Cir. 2007). The Prison Litigation Reform Act states, in
pertinent part:
No action shall be brought with respect to prison conditions under section 1983 of this
title, or any other Federal law, by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as are available are exhausted.
42 U.S.C. § 1997e(a). As Hurd’s failure to exhaust the claims arising after the filing date is plain on
the face of the pleadings, the court will not consider those claims.
Some of Hurd’s claims, however, involve events which were not dated or occurred prior to the
date this case was filed; as such, he may have exhausted his administrative remedies as to those
claims, and the court will review them on the merits under 28 U.S.C. § 1915A.1 The Magistrate Judge
discussed Hurd’s claims regarding: (1) his slip and fall, (2) his delay in getting shoes, and (3) his
claim that he did not receive due process as to the handling of various Rule Violation Reports
regarding his failure to provide a urine sample for testing. The Magistrate Judge recommended

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Section 1915A requires a district court in a prisoner case to “as soon as practicable” to screen the
case and dismiss any claim if it “is frivolous, malicious, or fails to state a claim upon which relief may
be granted; or . . . seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C.
§ 1915A(a) and (b).
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dismissing these allegations for failure to state a claim upon which relief could be granted, and the
court will adopt the Report and Recommendation as to these claims.
In his 62-page meandering document [10] which the court construes as an amended
complaint, Mr. Hurd lists ten claims, summarized below:
(1) Denial of adequate medical treatment during his stay at the Mississippi State Penitentiary –
untimely dispensing of medication and failure to conduct an MRI examination;
(2) Exposure to hazardous conditions, including feces and urine on the floor in the bathrooms,
rust, chemical smells, and lack of proper deodorant (which Hurd remedied by using lotion as
deodorant for months at a time), and poor ventilation;
(3) Assault and verbal abuse, including being attacked by a K-9 officer, which occurred at the
South Mississippi Correctional Institution (not at the Mississippi State Penitentiary, where the
rest of Hurd’s claims arose);
(4) “Corporal punishment,” which he defines as all inmates being punished for a single inmate’s
wrongdoing – the result of which was denial of parole and reduction in custody level;
(5) Due process violations regarding Rule Violation Reports and untimely hearings;
(6) Denial of participation in religious services, blocking of outside religious materials, including
receipt of “care packages” containing personal hygiene supplies and other items not available
from the canteen at the penitentiary;
(7) Lack of accommodations for handicapped prisoners at other institutions (Central Mississippi
Correctional Facility and South Mississippi Correctional Institution);
(8) “False imprisonment” through unnecessary Rule Violation Report and findings of parole
violations, which led to continued imprisonment or return to prison;

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(9) Poor treatment by prison officials and medical staff, including cursing, verbal abuse,
“frivolous” Rule Violation Reports and suspended privileges; and
(10) Denial of benefits because of indigency, criminal record, and disability.
The following allegations were not mentioned in Hurd’s original complaint, are unrelated to it,
and will thus be dismissed: (3) verbal abuse and assault by a K-9 officer while housed at the South
Mississippi Correctional Institution, (4) “corporal punishment,” (6) denial of religious services,
materials, and “care packages,” (7) lack of accommodations for handicapped prisoners, (9) cursing
and verbal abuse, and (10) denial of benefits because of indigency, criminal record, and disability. The
dismissal of these claims is without prejudice to Mr. Hurd’s ability to bring them in separate suits.
Mr. Hurd’s Objections
Mr. Hurd’s primary objections to the Report and Recommendation were that he believes that it
did not adequately discuss his claims regarding: (1) a 17-day delay in medical treatment (medication)
for back pain and hypertension, (2) a delay in building repairs causing the slippery floor conditions
which, in turn, led to his slip and fall in the shower, (3) a delay of four months in getting replacements
for his worn-out shoes, (4) generally unsanitary conditions in Mississippi State Penitentiary Unit 30-B,
and (5) denial of due process in handling the Rule Violation Report regarding Mr. Hurd’s alleged
failure to provide a sample of his urine for drug testing.2 Mr. Hurd’s allegations in his complaint and
amended complaint are, for the most part, disorganized and difficult to follow; however, when
coupled with his objections to the Report and Recommendation, the court has a better picture of them.
The court will discuss these five objections in turn below.

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Mr. Hurd has made other allegations in his objections; however, those events occurred after the date
he filed the instant case and, as set forth above, he could not have exhausted administrative remedies
for these allegations prior to filing this case – as required under the Prison Litigation Reform Act.
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First, the Magistrate Judge’s Report and Recommendation discussed the delay in medical
treatment after Mr. Hurd’s slip-and-fall injury because that was the focus of his allegations.
Nonetheless, the reasoning in the Report and Recommendation also applies to the alleged 17-day
delay in providing medications to treat hypertension and arthritis. As Mr. Hurd has not alleged that the
delay in treatment was caused by the defendants’ reckless disregard for his health and safety, then he is
not entitled to relief under 42 U.S.C. § 1983.
Second, the Magistrate Judge’s analysis of Hurd’s allegations that deteriorating building
conditions caused his slip and fall is complete and accurate. Mr. Hurd is not entitled to relief based on
these allegations because they sound wholly in negligence – which does not rise to the level of a
constitutional violation under 42 U.S.C. § 1983. Thus, Hurd’s allegations regarding his slip and fall
will be dismissed for failure to state a claim upon which relief could be granted.
Third, the court fully adopts the Magistrate Judge’s discussion of Hurd’s allegations regarding
a four-month delay in replacing his worn-out tennis shoes. Once Hurd requested shoes on the correct
form – and from the correct people – he received them. As such, these allegations will be dismissed
for failure to state a claim upon which relief could be granted.
Fourth, the Magistrate Judge discussed the leakage from sinks and toilets only in the context
of creating the slick conditions leading to Hurd’s slip and fall in the bathroom – as that was the context
in which Hurd presented these allegations in his complaint, amended complaint, grievances, and
letters. However, in his objections, he makes clear that he wishes to proceed on a separate claim of
unsanitary conditions of confinement as to the leaking plumbing, standing water smelling of sewage,
chemical fumes in the living area, and poor ventilation. Viewing the documents Hurd has presented as
a whole (including his objections to the Report and Recommendation), the court holds that these
allegations state a claim of unsanitary general conditions of confinement as to defendants

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Superintendent Earnest Lee, Warden Sonja Stanciel, Unit Administrator Lt. Michael Weeks, and
Commissioner Marshal Fisher will move forward.
Finally, Mr. Hurd identifies several Rule Violation Reports for which he was found guilty;
however, the only one predating the filing of this case involves his alleged failure to provide a urine
sample for drug testing. As the Magistrate Judge found, the court holds, as to this Rule Violation
Report, that even if Hurd’s allegations are true, they fail to state a constitutional question because the
punishment (90 days loss of privileges) is not severe enough to trigger due process protections.
Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995). The Magistrate Judge
was correct in recommending dismissal of this claim.
Conclusion
For the reasons set forth above, the Magistrate Judge’s Report and Recommendation will be
adopted in part. All of Mr. Hurd’s claims will be dismissed except for his claim against defendants
Superintendent Earnest Lee, Warden Sonja Stanciel, Unit Administrator Lt. Michael Weeks, and
Commissioner Marshal Fisher for permitting unsanitary general conditions of confinement as to
leaking plumbing, standing water smelling of sewage, chemical fumes in the living area, and poor
ventilation.

SO ORDERED, this, the 18th day of May, 2016.
/s/ Sharion Aycock_________
U.S. DISTRICT JUDGE

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