McCray v. Mississippi Department of Corrections et al
MEMORANDUM OPINION and ORDER - Claim against Bernice Brown is DISMISSED with prejudice; claim against MCCF is dismissed; claim against MDOC, Dr. Paige, H.S.A.H. Williamson, and Dr. Woods will proceed. Signed by Magistrate Judge Roy Percy on 11/9/17. (cr)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OTIS OLIVER MCCRAY
NO. 4:17CV115- RP
MISSISSIPPI DEPARTMENT OF CORRECTIONS, ET AL.
MEMORANDUM OPINION AND ORDER
On November 7, 2017, plaintiff Otis Oliver McCray 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 applies to this case because the plaintiff
was incarcerated when he filed this lawsuit.
I. Plaintiff’s Allegations
McCray, an inmate housed at the Marshall County Correctional Facility (“MCCF”),
alleges that he suffers from a prolapsed rectum, and that the Mississippi Department of
Corrections (“MDOC”) refuses to provide the necessary surgical treatment.
McCray also states that Dr. Woods, his treating physician at MCCF, diagnosed him with
Hepatitis C in early 2017, and that he has been denied treatment for that condition by Dr. Woods,
Dr. Paxton Paige, and H.S.A. H. Williamson. He also claims that he contracted the disease from
contaminated tools used by a dentist at MCCF.
Finally, McCray asserts in his complaint that Defendant Bernice Brown failed to mail his
legal documents. At his Spears hearing, however, McCray declared that his allegations against
Brown had been resolved and stated that she should be dismissed from the instant suit.
II. Defendant Entitled to Dismissal
McCray asserts that his complaint against Defendant Bernice Brown has been resolved
and that she should be dismissed from this lawsuit. Therefore, pursuant to Federal Rule of Civil
Procedure 41(a), McCray’s claims against Bernice Brown will be dismissed with prejudice.1
III. Claim to be Dismissed
At his Spears hearing, McCray stated that he wanted to assert a claim against the
unidentified dentist who allegedly gave him Hepatitis C by using contaminated tools. However,
McCray conceded that he has assumed that he contracted Hepatitis C from a dentist using
contaminated tools because he does not know how else he could have contracted the disease.
The court finds that this claim fails to rise above the level of speculation, and therefore, is
insufficient to raise “more than a sheer possibility” that the unnamed defendant is responsible for
McCray’s diagnosis of Hepatitis C. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007). This claim will be dismissed.
McCray’s claim against Bernice Brown is dismissed with prejudice. McCray’s claim that
he contracted Hepatitis C from the unlawful actions of a dentist at MCCF is dismissed.
However, McCray has stated a claim against MDOC, Dr. Paige, H.S.A. H. Williamson, and Dr.
McCray cannot otherwise sustain a claim against Bernice Brown in this action based on the allegations presented,
as his claims against her have already been unsuccessfully litigated. See, e.g., Wilson v. Lunaugh, 878 F.2d 846, 850
(5th Cir. 1989).
Woods for the denial of medical treatment, and process will issue against these defendants for
McCray’s denial of medical care claim.
SO ORDERED this the 7th day of November, 2017.
/s/ Roy Percy
UNITED STATES MAGISTRATE JUDGE
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