Weathington v. Clark et al

Filing 23

OPINION AND ORDER - Defendants John Doe #3, Timothy Morris, Jacwanna L. Robinson, and Shaniqua Gibbs are DISMISSED with prejudice; PROCEED against Defendants Clark, Brewer, Page, John Doe #1, John Doe #2, and John Doe #4. Signed by Magistrate Judge David A. Sanders on 3/7/18. (cr)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
JEROME WEATHINGTON

PLAINTIFF

V.

NO. 4:17CV20-DAS

DONOVAN CLARK, ET AL.

DEFENDANTS
OPINION AND ORDER

On March 1, 2018, Jerome Weathington, a federal inmate currently housed at the
Mississippi State Penitentiary (“MSP”), appeared before the Court for a hearing pursuant to
Spears v. McCotter, 766 F.2d 179 (5th Cir.1985), to determine whether there exists a justiciable
basis for his claim filed under 42 U.S.C. § 1983. A plaintiff’s claim will be dismissed if “it lacks
an arguable basis in law or fact, such as when a prisoner alleges the violation of a legal interest
that does not exist.” Martin v. Scott, 156 F.3d 578 (5th Cir. 1998) (citations omitted). The
Prison Litigation Reform Act (“PLRA”) applies to this case because the plaintiff was
incarcerated when he filed this lawsuit.
I. Plaintiff’s Allegations & Parties to Suit
On August 12, 2015, Weathington was housed in Unit 29G at the Mississippi State
Penitentiary (“MSP”) under protective custody. According to Weathington, he and his cellmate
had been arguing in the days prior, and Weathington wanted to move cells to avoid any physical
conflict. When Weathington left his cell to take a shower that day, he asked Officer Donovan
Clark if it would be possible to speak with his case manager, Jacqanna L. Robinson. Clark
denied the request and ordered Weathington back into his cell. Weathington refused to enter his
cell. Weathington claims that Clark then left the unit and returned with four additional officers:

Jonathan Brewer, Jeremy Page, and John Does #1 and #2. At this time, there was a female
correctional officer, John Doe #3, controlling the doors in the tower unit.
The officers attempted to handcuff Weathington, and he refused, again demanding to
speak to Ms. Robinson. According to Weathington, he was then sprayed in the face with mace
by either John Doe #1 or John Doe #2. Weathington ran. He claims that the officers who had
entered the unit moments earlier — Clark, Brewer, Page, John Doe #1, and John Doe #2 —
caught him, knocked him to the ground, and began to beat him with their fists, boots, and radios.
Weathington asserts that he passed out, but that before he lost consciousness, he heard Ms.
Robinson tell the officers that Weathington was a federal inmate and that they would get into
trouble. Weathington claims that he was handcuffed at some point while he was unconscious,
and that he remembers being pushed through the doors of the unit and falling, face-first, onto the
ground outside.
Weathington states that he was then placed in a transport van and driven to the Unit 42
hospital. He claims that he was slapped by either Page or Clark and was again rendered
unconscious. He asserts that he received stiches to the back of his head and above his left eye at
the hospital, and that he returned to his housing unit with a sore wrist and a swollen face.
Weathington contends that when he got out of the van upon his return to his housing unit, John
Doe #4, the transport van officer, hit him in the stomach.
Weathington maintains that sometime between August 13 and August 26, 2015, Clark
came by Weathington’s door and stated that he and the other officers treated Weathington as
they did because Weathington had been showing off for other inmates.
After the alleged assault against him, Weathington was written a Rule Violation Report
(“RVR”) for assaulting an officer during the above-recounted events. He asserts that he was not

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given a copy of the RVR, and that officers lied and said he had refused the copy. Weathington
obtained witness statements, which he presented at his disciplinary hearing. According to him,
the hearing officer refused to consider the statements and found him guilty of an allegedly false
charge. As punishment, Weathington spent 20 days in isolation and lost 18 months of canteen
and visitation privileges.
On February 13, 2017, Weathington filed the instant lawsuit alleging that Defendants
subjected him to excessive force, failed to intervene and protect him from excessive force, failed
to ensure that incidents were video recorded at MSP, and violated his due process rights with
regard to his disciplinary charge. Named as Defendants in this suit are: Officer Donovan Clark,
Officer Jonathan Brewer, Officer Jeremy Page, Officer John Doe #1, Officer John Doe #2,
Officer John Doe #3, Officer John Doe #4, Warden Timothy Morris, Case Manager Jacwanna L.
Robinson, and Shaniqua Gibbs.
II. Failure to Intervene
Weathington claims that Defendants John Doe #3, Jacwanna L. Robinson, and Shaniqua
Gibbs are constitutionally liable for failing to intervene to stop the use of excessive force against
him. A defendant may face liability under § 1983 for failing to intervene if he is present at the
scene, saw excessive force being used, was in a position to realistically prevent the force, had
time to prevent it, and failed to do so. Spencer v. Rau, 542 F. Supp. 2d 583, 595 (W.D. Tex.
2007) (citing Davis v. Rennie, 264 F.3d 86, 97-98 (1st Cir. 2001)).
Weathington claims that John Doe #3, the female correctional officer in the control tower
when the incident occurred, failed to protect him. At his Spears hearing, however, he stated that
he did not see her exit the control tower and assumes that she could have, and did not, intervene.

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This allegation fails to identify any facts that would allow a finding of liability against her under
prevailing legal standards, and therefore, she will be dismissed from this action.
Similarly, Weathington complains only that his case manager, Jacwanna Robinson,
instructed the officers that they would get into trouble if they did not cease the alleged assault on
Weathington. Weathington does not allege that Robinson participated in the attack, nor that she
could have acted to prevent or stop it. Rather, he claims that he was in and out of consciousness
during the alleged attack, and only remembers this one statement Robinson made to the officers.
Robinson’s presence at the incident is insufficient to state a cause of action against her, and she
will be dismissed.
At his Spears hearing, Weathington stated that Defendant Shaniqua Gibbs wrote an
incident report stating that Weathington had assaulted an officer. Therefore, he assumes that she
was present at the scene of the incident and is, presumably, somehow involved in the alleged
attack against him. These allegations are insufficient to state a claim against Gibbs, and Gibbs is
entitled to be dismissed.
III. Failure to Protect
Weathington asserts that Timothy Morris failed to protect him from harm at the hands of
his officers. Specifically, he claims that Warden Morris is liable in this action as he did not
require his officers to wear body cameras, which are supposed to be used in any calculated use of
force incidents.
Under the Eighth Amendment, prison officials have a duty to protect inmates from
violence and to take reasonable measures to protect their safety. Farmer v. Brennan, 511 U.S.
825, 832-33(1994). Liability attaches to an officer’s failure to protect an inmate only where the
inmate demonstrates that he was “incarcerated under conditions posing a substantial risk of

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serious harm and that the prison officials acted with deliberate indifference to the inmate’s
safety.” Id. at 834; Johnson v. Johnson, 385 F.3d 503, 524 (5th Cir. 2004). “Deliberate
indifference” means that a prison official is liable only where he knows that the inmate faces a
substantial risk of serious harm and disregards the risk. Id. at 837 (quotation marks omitted).
Neither negligence nor dereliction of duty can be the basis of a failure-to-protect claim. See
Adames v. Perez, 331 F.3d 508, 514 (5th Cir. 2003); see also Daniels v. Williams, 474 U.S. 327
(1986) (holding negligence does not state §1983 cause of action).
Weathington does not claim that Morris had any personal involvement in the events that
caused his alleged constitutional injury. Rather, Morris is named as a defendant because he is a
supervisory official. However, Warden Morris cannot be held liable for the actions of his
subordinates absent some action or inaction by him that constituted deliberate indifference, as
supervisory officials are responsible only for their own lawlessness. See Ashcroft v. Iqbal, 556
U.S. 662 (2009); see also Oliver v. Scott, 276 F.3d 736, 742 & n.6 (5th Cir. 2002) (holding §
1983 does not “create supervisory or respondeat superior liability”); Thompson v. Steele, 709
F.2d 381, 382 (5th Cir. 1983) (“Personal involvement is an essential elements of a civil rights
cause of action.”). Weathington does not allege that Morris’ failure to enforce the rules
regarding body cameras was predicated on deliberate indifference. Therefore, Warden Morris
will be dismissed from this action.
IV. Due Process
Weathington claims that he was written an allegedly false RVR, improperly denied
privileges, and prevented from presenting evidence at his disciplinary hearing. These allegations
require the Court to consider whether Weathington’s due process rights were violated with
regard to the disciplinary action taken against him.

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In order to establish a due process violation, a prisoner must establish that he has been
denied a protected interest by the challenged prison action. Richardson v. Joslin, 501 F.3d 415,
418 (5th Cir. 2007). Generally, protected liberty interests are “limited to freedom from restraint
which, while not exceeding the sentence in such an unexpected manner as to give rise to
protection by the Due Process Clause of its own force . . . nonetheless impose[] [an] atypical and
significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin v.
Conner, 515 U.S. 472, 484 (1995) (internal citations omitted).
An inmate does not have a constitutional right to be free from being charged with a
disciplinary infraction, even if the report of the offense is untrue. See, e.g., Brown v. LeBlanc,
No. 09-1477-P, 2013 WL 1947180, at *6 (W.D. La. Mar. 27, 2013), report and recommendation
adopted, No. 09-1477-P, 2013 WL 1947175 (W.D. La. May 9, 2013) (collecting cases).
Accordingly, Weathington’s allegation that the RVR was false fails to state a constitutional
claim.
Moreover, neither Weathington’s allegation that he did not receive a copy of the RVR,
nor his claim that the disciplinary officer refused to consider his witness statements state a viable
claim. In this case, Weathington was charged with a disciplinary offense and found guilty of the
offense. Due process only requires “some evidence” to support a disciplinary hearing finding,
not absolute proof. See Superintendent, Mass. Correctional Institution v. Hill, 472 U.S. 445, 457
(1985) (holding procedural due process requires only some evidence to support findings made in
disciplinary hearing). This conclusion is not altered an allegation that Defendants failed to
follow policy by providing him with a copy of his RVR, as a mere failure to follow prison policy
does not raise a constitutional issue. See, e.g., Myers v. Klevenhagen, 97 F.3d 91, 94 (5th Cir.
1996) (holding that “a prison official’s failure to follow the prison’s own policies, procedures or

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regulations does not constitute a violation of due process, if constitutional minima are
nevertheless met”). Therefore, neither the fact that Weathington’s version of the incident was
not accepted, nor that he did not receive a copy of the RVR, is sufficient to state a due process
claim.
Additionally, an inmate’s protected “interests are generally limited to ... regulations or
statutes which affect the quantity of time rather than the quality of time served by a prisoner.”
Madison v. Parker, 104 F.3d 765, 767 (5th Cir.1997). Here, as punishment for the RVR,
Weathington spent 20 days in isolation and lost visitation and canteen privileges for 18 months.
Neither a 20-day period of isolation nor a 6-month restriction in privileges is severe enough to
trigger due process protections. See Pickens v. Minton, 109 F. App'x 655, 656 (5th Cir. 2004)
(holding 20 days in isolation insufficient to trigger protections associated with due process); see
also Cline v. Vasquez, No. 1:13CV27, 2014 WL 5363885, at *2 (E.D. Tex. Oct. 21, 2014)
(holding petitioner's claims concerning disciplinary segregation and the loss of email, phone and
visitation privileges for 180 days do not implicate due process concerns); Frechou v. King, No.
1:13-CV-549-KS-MTP, 2014 WL 172079, at *2 (S.D. Miss. Jan. 15, 2014) (holding plaintiff did
assert cognizable constitutional violation by losing prison privileges for 180 days). Therefore,
Weathington has failed to state a viable due process claim.
V. Excessive Force
“[I]nmates have a constitutional right to be free from the use of excessive force.”
Anthony v. Martinez, 185 F. App’x 360, 363 (5th Cir. 2006) (citing Hudson v. McMillian, 503
U.S. 1, 5-10 (1992)). A prisoner can sustain a claim for excessive force only by showing that he
suffered an injury that, while not necessarily significant, was more than de minimis, and that the
injury resulted from the use of force that the force was not applied in a good-faith effort to

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maintain or restore discipline, but rather, was applied maliciously and sadistically to cause harm.
See Hudson, 503 U.S. at 6, 10; Gomez v. Chandler, 163 F.3d 921, 923–24 (5th Cir. 1999).
Here, Weathington has alleged that Defendants Donovan Clark, Jonathan Brewer, Jeremy
Page, John Doe #1, John Doe #2, and John Doe #4, beat, kicked, and slapped him while he was
restrained and/or otherwise incapacitated. Assuming his allegations as true for purposes of this
Order, the Court finds Weathington has stated a claim against these Defendants, and that process
should issue against them.
VI. Conclusion
For the reasons as set forth above, the Court ORDERS:
1. That Defendants John Doe #3, Timothy Morris, Jacwanna L. Robinson, and Shaniqua
Gibbs be DISMISSED from this action with prejudice.
2. That Weathington’s due process, failure to intervene, and failure to protect claims be
DISMISSED.
3. That Weathington’s claim of excessive force PROCEED against Defendants Clark,
Brewer, Page, John Doe #1, John Doe #2, and John Doe #4.
SO ORDERED this the 7th day of March, 2018.
s/ David A. Sanders
UNITED STATES MAGISTRATE JUDGE

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