Whetstone v. Hall et al

Filing 25

ORDER denying 23 Motion for Reconsideration ; denying 24 Motion to Amend. Signed by Magistrate Judge Jane M. Virden on 2/22/18. (cr)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
NEVIN KERR WHETSTONE

PLAINTIFF

V.

NO. 4:17CV158-JMV

PELICIA HALL, ET AL.

DEFENDANTS
ORDER

The plaintiff has filed two motions that are pending before the Court: (1) a “Motion to
Amend Memorandum Opinion and Order,” which the Court construes as a motion for
reconsideration; and (2) an “Amended Complaint,” which the Court construes as a motion for
leave to amend the complaint filed in this action. See Docs. #23 & #24. Upon consideration, the
motions are denied for the reasons as stated herein.
I
Background
On January 23, 2018, this Court entered a Memorandum Opinion and Order regarding the
plaintiff’s claims that the defendants have denied him appropriate medical treatment in violation
of his constitutional and federal statutory rights. Doc. #17. While the Court allowed the
plaintiff’s constitutional claims to proceed against certain defendants, it also dismissed certain
defendants and the plaintiff’s statutory claims. Id. The plaintiff now seeks reconsideration of
the portion of the Memorandum Opinion and Order that (1) dismissed defendants Pelicia Hall
and Richard Pennington and (2) dismissed the plaintiff’s claim under the Americans with
Disabilities Act (“ADA”) and the Rehabilitation Act (“RA”). See Doc. #23. He also seeks to
amend his complaint to clarify that each defendant named in this lawsuit personally knew of his

medical problems and deliberately disregarded his requests for adequate medical treatment. Doc.
#24.
II
Motion for Reconsideration
The plaintiff’s request for reconsideration of the Court’s Memorandum Opinion and
Order is governed by Federal Rule of Civil Procedure 59(e). An order granting Rule 59(e) relief
is appropriate when: (1) there has been an intervening change in the controlling law, (2) where
the movant presents newly discovered evidence that was previously unavailable, or (3) to correct
a manifest error of law or fact. Schiller v. Physicians Resource Group, Inc., 342 F.3d 563, 567
(5th Cir. 2003). A Rule 59(e) motion cannot be used to raise theories or arguments which could,
and should, have been made earlier, nor can it be used to re-urge matters that have already been
advanced by a party. Helena Laboratories Corp. v. Alpha Scientific Corp., 483 F.Supp.2d 538,
539 (E.D. Tex. 2007) (citation and quotation marks omitted).
A. Hall and Pennington
The plaintiff first maintains that the Court should not have dismissed defendants Pelicia
Hall and Richard Pennington, as each responded with deliberate indifference to his pleas for
medical attention. The plaintiff claims that he did not give detailed information against these
defendants in his complaint because of space constraints, and that he did not expound on their
roles in this lawsuit at his Spears hearing in an attempt to help the Court expedite the hearing
process. The result, the plaintiff states, is that the Court misunderstood his allegations against
Hall and Pennington. See Doc. #23 at 1. The plaintiff contends that both Hall and Pennington
were in violation of various policies by failing to ensure he received medical treatment, and that
his letters/grievances to them made them aware of his claim that he was being denied his
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constitutional right to medical care. He claims that under existing law, their ability and duty to
help him, combined with their knowledge of his lack of treatment, makes them liable for their
failure to ensure he received proper medical care.
As previously noted by the Court in its Memorandum Opinion and Order, § 1983 does
not “create supervisory or respondeat superior liablity.” Oliver v. Scott, 276 F.3d 736, 742 n.6
(5th Cir. 2002). Rather, “[e]ach Government official, his or her title notwithstanding, is only
liable for his or her own misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). Therefore,
supervisory officials may be held liable only if they (i) affirmatively participate in acts that cause
a constitutional deprivation, or (ii) implement unconstitutional policies that causally result in
plaintiff's injury. See Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir.1987).
The Court finds no reason to depart from its original ruling in this case. See Doc. #17 at
3. Neither Hall nor Pennington are subject to liability under the facts as presented by the
plaintiff, as their alleged failure to respond to the plaintiff’s letters and grievances is not the type
of affirmative, personal involvement in a constitutional deprivation that will subject either of
them to constitutional liability. See, e.g., Mayes v. Valdez, No. 3:15-CV-3424-M-BH, 2017 WL
4075184, at *7 (N.D. Tex. Aug. 21, 2017), report and recommendation adopted, No. 3:15-CV3424-M-BH, 2017 WL 4022890 (N.D. Tex. Sept. 13, 2017) (collecting cases); see also
Dehghani v. Vogelgesang, 226 F. App’x 404, 406 (5th Cir. 2007) (holding plaintiff’s allegation
that warden failed to adequately investigate grievance did not amount to constitutional violation).
Accordingly, the plaintiff’s allegations are insufficient to suggest that either Hall or Pennington,
through their own action or inaction, violated the plaintiff’s constitutional rights, and they are
properly dismissed from this action.
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B. ADA/RA
This Court dismissed the plaintiff’s claim that the defendants’ conduct violated the ADA
and/or RA, finding that neither Act “covers the mere absence or inadequacy of medical treatment
for a prisoner.” Doc. #17 at 5 (citations omitted).
The Court notes that on January 22, 2018, one day before the Memorandum Opinion and
Order in this case was entered, the plaintiff signed a memorandum addressed to the Court, in
which the plaintiff sought to clarify some of the issues addressed at his Spears hearing. See Doc.
#21. In that document, the plaintiff explicitly stated that he did not intend for the Court to
interpret his claims as raising “a discrimination suit.” Id. In the instant motion, however, the
plaintiff claims that he “is a very qualified individual” under both federal statutes, and that the
defendants’ denial of medical treatment evidences discrimination against him. Doc. #23 at 4.
The ADA and RA exist to protect individuals from being discriminated against because
they have disabilities; they do not exist to challenge a person’s treatment for a disability. See
Cleveland v. Gautreaux, 98 F.Supp.3d 717, 746 (M.D. La. Aug. 1, 2016) (noting “the ADA
prohibits discrimination because of disability, not inadequate treatment for disability”). That is,
neither statute cited by the plaintiff sets out “a standard of care for medical treatment.” See, e.g.,
Walls v. Tex. Dept. of Crim. J., 270 F. App’x 358, 359 (5th Cir. 2008) (noting plaintiff’s ADA
claim was properly dismissed as “simply a restatement of the denial-of-medical-care claim”).
Here, the plaintiff’s claim is properly construed as one for the denial of medical care, and his
ADA and RA claims were properly dismissed.

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III
Motion for Leave to Amend
The plaintiff seeks to file an amended complaint to assert that “[a]ll the defendants in this
case responded with deliberate indifference to plaintiff’s serious medical need.” Doc. #24. The
plaintiff’s request to file an amended complaint is governed by Rule 15(a) of the Federal Rules
of Civil Procedure, leave to amend should be freely given “when justice so requires.” Fed. R.
Civ. P. 15(a)(2).1 While leave to amend is not automatic, courts should not deny leave to amend
absent a substantial reason for doing so. See, e.g., Jacobsen v Osborne, 133 F.3d 315, 318 (5th
Cir. 1998). Factors that may be considered in resolving whether leave to amend should be
granted include whether there has been undue delay, bad faith or dilatory motive on the part of
the movant, repeated failure to cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party, and futility of amendment. Id. (citation and quotation marks
omitted).
Here, the plaintiff seeks to amend his complaint to attempt to revive the claims and
defendants previously dismissed by the Court’s prior ruling. It would frustrate the purposes of
the Prison Litigation Reform Act (“PLRA”) if, after screening, a plaintiff could simply file an
amended complaint and reinstate those claims and defendants which had been previously
dismissed. Accordingly, based on the futility of amendment, the plaintiff’s motion to amend is
denied.

1
Rule 15(a) permits parties to amend their pleadings “once as a matter of course at any time before a responsive
pleading is served.” Fed. R. Civ. P. 15(a). Although a responsive pleading has not been served in this matter, the
Federal Rules must be considered in conjunction with the likewise applicable Prison Litigation Reform Act
(“PLRA”), which requires courts to screen inmate complaints and dismiss appropriate claims and defendants as soon
as practicable. 28 U.S.C. § 1915A.

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IV
Conclusion
For the reasons as set forth herein, the plaintiff’s motion for reconsideration [23] is
DENIED, and the plaintiff’s motion to file an amended complaint [24] is DENIED.
SO ORDERED this 22nd day of February, 2018.
s/ Jane M. Virden
UNITED STATES MAGISTRATE JUDGE

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