Singleton v. Fisher et al

Filing 49

ORDER adopting in part and rejecting in part Report and Recommendations re 20 Report and Recommendations.. Signed by District Judge Debra M. Brown on 5/12/17. (jtm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
SHAWN M. SINGLETON

PLAINTIFF

V.

NO. 4:15-CV-00084-DMB-RP

COMMISSIONER MARSHALL L.
FISHER, et al.

DEFENDANTS

ORDER
This pro se prisoner civil rights action is before the Court for consideration of the Report
and Recommendation of United States Magistrate Judge S. Allan Alexander. Doc. #20. For the
reasons below, the Report and Recommendation will be adopted in part and rejected in part.
I
Procedural History
A. Complaint and Subsequent Filings
On June 15, 2015,1 Shawn M. Singleton filed a complaint in the United States District
Court for the Northern District of Mississippi against numerous defendants, claiming sexual
assault during pat-down searches, unconstitutionally harsh general conditions of confinement,
mail tampering, deficient handling of grievances, deprivation of property without due process of
law, failure to protect, denial of medical care, and constitutionally inadequate living space within
his cell. Doc. #20 at 1. The complaint was written on a Northern District of Mississippi form
titled “Prisoner’s Complaint Challenging Conditions of Confinement,” which includes the
following prompt:
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Singleton’s complaint was received by the Clerk of Court on July 2, 2015, but was approved by prison authorities
as legal mail on June 15, 2015, and postmarked on June 30, 2015. A pro se prisoner’s 42 U.S.C. § 1983 complaint
“should be deemed filed as of the date that he duly submitted it to prison authorities for forwarding to the clerk of
court.” Cooper v. Brookshire, 70 F.3d 377, 378 (5th Cir. 1995).

The court must find that you exhausted the prison’s grievance system and
administrative remedies before it can consider this Complaint. State everything
you did to present your grievance(s). Be specific. Include the date(s) on which
you filed or presented your grievances to prison officers; identify the officer(s).
State your claim(s) exactly.
Doc. #1 at 5. In response to this inquiry, Singleton stated, “copies of all ARP’s will be attached
to this form if they were exhausted or if they are still in action or not.” Id.
On August 31, 2015, Singleton filed an exhibit to his complaint which includes a “First
Step Response Form” related to a sick visit with “Nurse Practitioner Brown.”2 Doc. #11.
Approximately a month later, Singleton filed a statement “in respect to the Prison Litigation
Reform Act ... That requires an inmate to exhaust all available administrative remedies ....” Doc.
#16 (emphasis omitted). In this filing, Singleton claims:
I filed all my A.R.P.’s seeking administrative remedy but fact being that only two
A.R.P.’s have been exhausted in all most a year and I have received no further
responses from any of my A.R.P.’s. that were filed before this suit was filed. I
have fulfilled my responsibility in seeking all available administrative remedy
through M.D.O.C. Fact being I have been denied Administrative Remedy due the
M.D.O.C. and M.S.P.’s failure to comply to policy set forth by the state.
Id. at 2.
On November 2, 2015, Singleton filed a document stating, “I would like to amend to file
and a statement on the procedural default subject on the procedural default subject on M.D.O.C.
administrative officials ....” Doc. #18. Such filing includes a second step response form dated
September 29, 2015, and a memorandum of law stating that he “followed all procedural
recommendation” but that MDOC officials failed to respond to his grievances. See id. at 5.
B. Spears Hearing and Report and Recommendation
On November 9, 2015, Singleton appeared before United States Magistrate Judge S.
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The document states that “these pages will be pages 14-2 of 148 and 14-3 of 148 of my complaint.” Singleton’s
complaint was not served on any defendant until at the earliest when the report and recommendation was issued over
four months later on December 15, 2015.

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Allan Alexander for a Spears hearing.3 On December 15, 2015, Judge Alexander issued a
Report and Recommendation addressing Singleton’s claims. Doc. #20. Judge Alexander began
by noting:
Mr. Singleton acknowledged that he has not exhausted the administrative
remedies for most of his claims, namely: sexual assault during pat-down searches,
unconstitutionally harsh general conditions of confinement, mail tampering,
deficient handling of grievances, the taking of property (a fan) without due
process of law, and failure to protect him from attack by other inmates. As he has
not exhausted these claims, the court will not expound upon them.
Singleton has, however, exhausted his administrative remedies for the following
two claims: (1) denial of medical care for an infection in his foot, and (2) that
there was unconstitutionally deficient available living space for him and his
cellmates.
Id. at 1-2. Judge Alexander also noted that Singleton’s unexhausted taking of property claim
failed because Singleton had an adequate remedy under state law. Id. 5-6.
Judge Alexander then recommended that Singleton’s denial of medical care claim be
dismissed because Singleton had not alleged that any of the defendants acted with deliberate
indifference, and that claims brought against Governor Phil Bryant be dismissed because
“plaintiff does not allege that [the Governor] had any personal involvement or caused the alleged
incident in any way.” Id. at 6. Finally, Judge Alexander recommended that “Singleton’s sole
remaining claim – constitutionally inadequate living space within his cell area – should proceed
against Commissioner Marshall L. Fisher, Deputy Commissioner Jerry Williams, Superintendent
Earnest Lee, Warden Timothy Morris, and Deputy Warden Wendell Banks.” Id. at 7.
Singleton filed timely objections to the Report and Recommendation. Doc. #22.

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The Fifth Circuit has held “that a magistrate may conduct an evidentiary hearing, if needed, to flesh out the
substance of a prisoner’s claims. A Spears hearing is in the nature of a motion for more definite statement.” Wesson
v. Oglesby, 910 F.2d 278, 281 (5th Cir. 1990) (citing Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985)) (internal
quotation marks omitted).

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II
Standard of Review
Where objections to a report and recommendation have been filed, a court must conduct a
“de novo review of those portions of the ... report and recommendation to which the Defendants
specifically raised objections. With respect to those portions of the report and recommendation to
which no objections were raised, the Court need only satisfy itself that there is no plain error on
the face of the record.” Gauthier v. Union Pac. R.R. Co., 644 F.Supp.2d 824, 828 (E.D. Tex.
2009) (citing Douglass v. United Serv. Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996))
(internal citations omitted).
III
Analysis
In his objections, Singleton argues that he sufficiently alleged deliberate indifference
regarding his medical treatment and that his other claims should not be dismissed for failure to
exhaust.
A. Denial of Medical Care
The Fifth Circuit Court of Appeals recently summarized its denial of medical care
jurisprudence as follows:
Prisoners are entitled to receive adequate medical care. A prison official violates
the Eighth Amendment’s prohibition against cruel and unusual punishment when
his conduct demonstrates deliberate indifference to a prisoner’s serious medical
needs, constituting an unnecessary and wanton infliction of pain. A prison inmate
can demonstrate an Eighth Amendment violation by showing that a prison official
refused to treat him, ignored his complaints, intentionally treated him incorrectly,
or engaged in any similar conduct that would clearly evince a wanton disregard
for any serious medical needs.
[T]here is both an objective and subjective standard. A prison official acts with
deliberate indifference only if (A) he knows that inmates face a substantial risk of
serious bodily harm and (B) he disregards that risk by failing to take reasonable
measures to abate it. Unsuccessful medical treatment, acts of negligence, or
medical malpractice do not constitute deliberate indifference, nor does a
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prisoner’s disagreement with his medical treatment, absent exceptional
circumstances. Delay in medical care can only constitute an Eighth Amendment
violation if there has been deliberate indifference that results in substantial harm.
Rogers v. Boatright, 709 F.3d 403, 409-10 (5th Cir. 2013) (internal quotation marks, alterations,
and citations omitted).
In the Report and Recommendation, Judge Alexander held:
Mr. Singleton has alleged nothing more than his disagreement with the course of
treatment provided. Medical personnel examined and treated him for, alternately,
bacterial infection and fungal infection. Though neither treatment proved
effective, Singleton has not shown that Drs. Madubuonwu and Santos – or Nurse
Brown – intentionally provided treatment with “subjective recklessness as used in
the criminal law,” as required to meet the standard of deliberate indifference
necessary to sustain a claim for denial of medical care. Indeed, Singleton
continued the prescribed treatments – while debriding the area and administering
over-the-counter topical antibiotic – and the combined treatments finally rid him
of the infection. As such, these allegations are without merit and should be
dismissed for failure to state a claim upon which relief could be granted.
Doc. #20 at 3-4 (internal citation omitted).
In his objections, Singleton objects to this conclusion on the grounds that “if it was not
for his ex-wife paying for the medication to be smuggled in to the prison by an M.D.O.C. officer
he would have lost his foot. [The doctor] did not prescrib[e] the antibiotic but the one time that
did not work. As for [the nurse,] what she did prescrib[e] did not work and they done nothing
else.” Doc. #22 at 1.
Even assuming these allegations are true, Singleton has not adequately alleged deliberate
indifference. Singleton has alleged that he was prescribed an ineffective antibiotic; however, this
allegation standing alone is insufficient to show deliberate indifference. See Boatright, 709 F.3d
at 409-10 (“Unsuccessful medical treatment, acts of negligence, or medical malpractice do not
constitute deliberate indifference.”). Accordingly, this objection is overruled.

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B. Exhaustion
The Prison Litigation Reform Act (“PLRA”) contains a mandatory requirement that all
available administrative remedies be exhausted before a prisoner can bring a § 1983 lawsuit. 42
U.S.C. § 1997e(a) (“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.”).
“[E]xhaustion is an affirmative defense, rather than a pleading requirement the prisoner must
satisfy in his complaint.” Coleman v. Sweetin, 745 F.3d 756, 763 (5th Cir. 2014) (citation
omitted). Because exhaustion is an affirmative defense, “it is error to dismiss a prisoner’s
complaint for want of exhaustion before a responsive pleading is filed unless the failure to
exhaust is clear from the face of the complaint.” Id. “District courts may not circumvent this
rule by considering testimony from a Spears hearing or requiring prisoners to affirmatively plead
exhaustion through local rules.” Id.
Here, it appears Judge Alexander, in dismissing Singleton’s claims as unexhausted, relied
on statements made by Singleton during the Spears hearing or on statements elicited by the
exhaustion inquiry on Singleton’s form complaint. Either reliance would be error. See Coleman,
745 F.3d at 763 (“[C]oncluding that Coleman failed to exhaust administrative remedies, the
magistrate judge necessarily relied upon the Step 2 grievances [attached to the complaint] or
Lively’s testimony from the Spears hearing. Either basis constitutes reversible error.”).
Accordingly, the Court rejects Judge Alexander’s recommendation that Singleton’s claims be
dismissed for failure to exhaust and sustains Singleton’s objections in this regard.
C. Remaining Recommendations
Singleton has not objected to Judge Alexander’s recommendations regarding dismissal of

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the claims against Bryant or dismissal of the takings claim. The Court has reviewed these
recommendations and has found no clear error. Accordingly, such recommendations will be
adopted.
IV
Conclusion
For the reasons above, Judge Alexander’s Report and Recommendation [20] is
ADOPTED in Part and REJECTED in Part.

The Report and Recommendation is

REJECTED to the extent it recommends dismissal of Singleton’s claims for failure to exhaust.
The Report and Recommendation is ADOPTED in all other respects. Accordingly, Singleton’s
claims against Bryant and his claims based on unconstitutional takings are DISMISSED.
SO ORDERED, this 12th day of May, 2017.

/s/ Debra M. Brown
.
UNITED STATES DISTRICT JUDGE

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