Whetstone v. Hall et al

Filing 88

ORDER granting 68 Motion for Summary Judgment. Signed by Magistrate Judge Jane M. Virden on 3/4/19. (cr)

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

PLAINTIFF
CIVIL ACTION NO.: 4:17CV158-JMV

ANGELA BROWN, ET AL.

DEFENDANTS

ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Before the Court is the Defendants’ motion for summary judgment, and Plaintiff’s
responses thereto. The parties having consented to U.S. Magistrate Judge jurisdiction in this case
in accordance with 28 U.S.C. § 636(c), the undersigned has the authority to enter this order and
the accompanying final judgment.
I.
Plaintiff’s Allegations
Years ago, Nevin Whetstone suffered an injury to his sacrum1 that required him to
periodically seek the services of a medical professional to manipulate it back in place. Unable to
receive regular manipulations once imprisoned, Whetstone claims that his sacrum locked into
place in 1990, causing him to suffer a lower tract problem and, eventually, a spinal collapse.
Whetstone alleges that he has continually sought osteopathic, chiropractic, and/or
orthopedic specialist services in his over two decades of incarceration, but that he has never seen
an off-site physician or had tests run. Doc. #68-2 at 2. He claims that Nurse Hill, a nurse at the
Central Mississippi Correctional Facility (“CMCF”), told him in 2011 that authorizing officials
would not approve him to see a specialist, and that medical providers at the Mississippi State

1

The sacrum is “the part of the spinal column that is directly connected with or forms a part of the pelvis and in
humans consists of five fused vertebrae.” See https://www.merriam-webster.com/dictionary/sacrum (last visited
March 1, 2019).

Penitentiary at Parchman (“Parchman”), such as Angela Brown and Pam Jarrett, minimize his
condition. Whetstone contends that though he has seen medical professionals regularly, none of
them provide any adequate treatment, which is causing him to grow increasingly immobile as his
range of motion decreases.
II.
Procedural History
After review of Whetstone’s complaint alleging an unconstitutional denial of medical care,
the Court held a Spears2 hearing and thereafter ordered process to issue for Angela Brown, Pam
Jarrett, and Nurse Hill. Doc. #18.3 On May 21, 2018, counsel for Defendants Jarrett and Brown
entered a waiver of service, later filing a timely answer on behalf of said Defendants. See Docs.
#33, #34, & #39. However, counsel for Defendants moved for a more definite statement as to the
identity of “Nurse Hill” in order to identify her and determine whether she is an employee of
Centurion, the contract medical provider for the Mississippi Department of Corrections
(“MDOC”), for whom it must provide a defense. Doc. #40. The Court entered an order granting
Centurion’s motion regarding Whetstone’s legal claims against Nurse Hill, but it determined that
Whetstone had identified Nurse Hill as an individual employed by Wexford Medical at CMCF in
2011. Doc. #47. As such, it determined that Whetstone had provided sufficient information for
Centurion to determine whether Nurse Hill is or was a Centurion employee. Id.
In response to the Court’s order regarding a more definite statement, Whetstone identified
“Nurse Hill [as] the first defendant who was fully apprised of plaintiff’s problem; she was seen
twice in 2011.” Doc. #51 at 1. He further contended that Nurse Hill documented his spinal
disorder in medical records following a medical evaluation in February 2012. Id. In reply, counsel

2

Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).

3

Other defendants and claims were dismissed by Order entered following the hearing. See Doc. #17.

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for Centurion stated that it was unable to identify Nurse Hill, and it further noted that Centurion
was not the medical provider for MDOC until 2015, well past the relevant time period of
Whetstone’s allegations. Doc. #54.
Subsequently, Whetstone moved the Court to issue process against the Nurse Hill who
worked at the CMCF for Wexford Medical in 2011 and 2012. Doc. #56. This Court granted the
order, and process issued against Nurse Hill, via Wexford Medical. Doc. #57. The summons was
returned unexecuted in October 2018, however, as the process server was unable to identify her
for service. Doc. #60. On November 13, 2018, Whetstone submitted a motion to compel Wexford
Medical to provide Nurse Hill’s identity to the Court. Doc. #67.
On November 19, 2018, Defendants filed the pending motion for summary judgment. Doc.
#68. On November 21, 2018, this Court entered an order denying Whetstone’s motion to compel
and requiring him to show cause why Nurse Hill should not be dismissed from this action, noting,
in part:
This Court has issued process for Nurse Hill twice already, and Wexford Medical
has been unable to identify her as an employee of the agency. See, e.g., Docs. #18,
#27, #57, #58, & #60. Counsel for Defendants who have appeared in this action
have investigated, and they have been unable to determine the identity of Nurse
Hill. Doc. #54. It is apparent that “Nurse Hill” cannot be identified as a proper
defendant based on the information provided by Plaintiff. Therefore, the Court
finds that it would be futile to grant Plaintiff’s motion, and the motion will be
denied.
Additionally, the Court notes that Plaintiff filed the instant lawsuit in late 2017. See
Doc. #1. As the Court noted at the time of Plaintiff’s Spears hearing, it was not
apparent at the onset of this case that Nurse Hill’s involvement in the allegations of
this lawsuit were limited to events that occurred around 2011. See Doc. #17.
Plaintiff’s subsequent communications with the Court, however, demonstrate that
her involvement in the issues related to this lawsuit were in fact limited to 2011 and
2012. See, e.g., Doc. #51. Therefore, Plaintiff’s allegations against Nurse Hill
cannot be sustained in this lawsuit, as they are barred by Mississippi’s three-year
statute of limitations. See e.g., Wallace v. Kato, 549 U.S. 384, 387 (2007); Owens
v. Okure, 488 U.S. 235, 250 (1989); see also Miss. Code Ann. § 15-1-49.
Accordingly, the Court finds that Plaintiff must show cause why Nurse Hill should
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not be dismissed from this lawsuit, as Mississippi’s statute of limitations bars
Plaintiff’s claims against her. See, e.g., Gartrell v. Gaylor, 981 F.2d 254, 256 (5th
Cir. 1993) (holding courts may dismiss claims sua sponte under 28 U.S.C. §
1915(d) where it is clear that the claim is barred by the applicable statute of
limitations).
Doc. #72. On or about December 11, 2018, Whetstone filed a response to the order to show cause,
maintaining that Wexford is deliberately stone-walling the Court, and that the United States
Marshals are capable of finding Nurse Hill. See, e.g., Doc. #77. He otherwise argues that Nurse
Hill is an integral part of his case, and that this Court should require her to answer his allegations
based on the “continuing violation doctrine” in federal common law, as she was the medical
professional who documented that he had a spinal condition and who stated that prison officials
would not authorize the treatment he needed. Id. at 2-3.
On January 17, 2019, the Court entered an order requiring Defendants to supplement their
summary judgment response and providing Whetstone an opportunity to supplement his summary
judgment response. See Doc. #78. Defendants and Whetstone each timely filed a supplement, and
Whetstone subsequently alleged that Defendants’ summary judgment proof was manufactured.
See Docs. #79, #84, #87. On February 11, 2019, counsel for Defendants submitted a suggestion
of death for Defendant Pamela Jarrett. Doc. #83. On or about February 13, 2019, Whetstone filed
a motion seeking to substitute Centurion of Mississippi, Nurse Hill, and Angela Brown as parties
in place of Pamela Jarrett. Doc. #86. Defendants did not respond to the motion.
III.
Nurse Hill & Show Cause Response
The Court finds that Nurse Hill is entitled to be dismissed from this action. Nurse Hill’s
interaction with Whetstone ceased upon his transfer to Parchman in 2011 or 2012. See, e.g., Doc.
#1 at 4. Her discrete treatment of Whetstone at CMCF approximately five years prior to this suit
being filed is not part of a “continuing violation.” Moreover, even assuming the applicability of
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the continuing violation doctrine to Whetstone’s case, it is not applicable where there is no
continuing denial of medical care. See Grumbles v. Livingston, 706 F. App’x 818 (5th Cir. 2017);
Nottingham v. Richardson, 499 F. App’x 368, 375 (5th Cir. 2012). In this case, Nurse Hill
examined him, documented that he had a serious medical condition, and put in an order for him to
see a chiropractor, which was denied. See Doc. #1 at 3. Accordingly, Nurse Hill is entitled to be
dismissed from this action, as the statute of limitations against her has expired. See, e.g., Wallace
v. Kato, 549 U.S. 384, 387 (2007); Owens v. Okure, 488 U.S. 235, 250 (1989); see also Miss. Code
Ann. § 15-1-49.
IV.
Summary Judgment Standard
Summary judgment is proper only when the pleadings and evidence, viewed in a light most
favorable to the nonmoving party, illustrate that no genuine issue of material fact exists and the
movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a),(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). A fact is deemed material if its resolution in favor of one
party might affect the outcome of the lawsuit under governing law. Sossamon v. Lone Star State
of Texas, 560 F.3d 316, 326 (5th Cir. 2009) (citation omitted). “The moving party must show that
if the evidentiary material of record were reduced to admissible evidence in court, it would be
insufficient to permit the nonmoving party to carry its burden.” Beck v. Texas State Bd. of Dental
Examiners, 204 F.3d 629, 633 (5th Cir. 2000) (citation omitted).
Once the motion is properly supported with competent evidence, the nonmovant must show
that summary judgment is inappropriate. Morris v. Covan World Wide Moving, Inc., 144 F.3d
377, 380 (5th Cir. 1998); see also Celotex, 477 U.S. at 323. That is, the non-movant must set forth
specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249 (1986); Beck, 204 F.3d at 633. The nonmovant cannot rely upon “conclusory
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allegations, speculation, and unsubstantiated assertions” to satisfy his burden, but rather, must set
forth specific facts showing the existence of a genuine issue as to every essential element of his
claim. Ramsey v. Henderson, 286 F.3d 264, 269 (5th Cir. 2002) (citation omitted); Morris, 144
F.3d at 380. If the “evidence is such that a reasonable jury could return a verdict for the nonmoving
party,” then there is a genuine dispute as to a material fact. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). If no proof is presented, however, the Court does not assume that the
nonmovant “could or would prove the necessary facts.” Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir. 1994).
The non-moving party (the plaintiff in this case), must come forward with proof to support
each element of his claim. The plaintiff cannot meet this burden with “some metaphysical doubt
as to the material facts,” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986), “conclusory allegations,” Lujan v. National Wildlife Federation, 497 U.S. 871, 87173 (1990), “unsubstantiated assertions,” Hopper v. Frank, 16 F.3d 92 (5th Cir. 1994), or by a mere
“scintilla” of evidence, Davis v. Chevron U.S.A., Inc., 14 F.3d 1082 (5th Cir. 1994). In considering
a motion for summary judgment, a court must determine whether the non-moving party’s
allegations are plausible. Matsushita, 475 U.S. at 586 (emphasis added). Determining whether a
complaint states a plausible claim is context-specific, requiring the reviewing court to draw on its
experience and common sense. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (discussing plausibility
of claim as a requirement to survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6)) (quotation
marks omitted).
Once the court has “determined the relevant set of facts and drawn all inferences in favor
of the nonmoving party to the extent supportable by the record, [the ultimate decision becomes] a
pure question of law.” Scott v. Harris, 550 U.S. 372, 381 n.8 (2007) (emphasis in original). “When

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opposing parties tell two different stories, one of which is blatantly contradicted by the record, so
that no reasonable jury could believe it, a court should not adopt that version of the facts for
purposes of ruling on the motion for summary judgment.” Id. at 380.
V.
Discussion
A. Exhaustion of Administrative Remedies
Defendants maintain that they are entitled to dismissal from this action, as Whetstone failed
to exhaust his administrative remedies prior to filing the instant lawsuit. Because Whetstone was
incarcerated when he filed this case, the Prison Litigation Reform Act (“PLRA”) applies to this
case. See 28 U.S.C. § 1915. The PLRA provides:
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).
To properly exhaust administrative remedies, a prisoner’s administrative grievance “must
give prison officials ‘fair notice’ of the problem that will later form the basis of the prisoner’s suit.”
Johnson v. Johnson, 385 F.3d 503, 516 (5th Cir. 2004). The specificity required in the process is
dictated by the grievance rules of the particular system. Id. at 517.
MDOC has been granted the statutory authority to adopt an administrative review
procedure at each of its correctional facilities. Pursuant to this authority, it has established an
Administrative Remedy Program (“ARP”) through which an inmate may seek formal review of a
complaint or grievance relating to any aspect of his incarceration. See Miss. Code Ann. § 47-5801. This process requires a prisoner to “present as many facts as possible to answer all the
questions who, what, when, where, and how concerning the incident.” Sears v. Shaw, No.
5:14CV65-DCB-JCG, 2016 WL 1068745, at *5 (S.D. Miss. Feb. 1, 2016), report and
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recommendation adopted, No. 5:14-CV-65-DCB-JCG, 2016 WL 1069094 (S.D. Miss. Mar. 17,
2016) (quoting MDOC Inmate Handbook, Ch. VIII, Administrative Remedy Program).
MDOC’s ARP process is a two-step process that begins when an inmate first submits his
grievance in writing to the prison’s legal claims adjudicator within thirty days of the complainedof incident. See, e.g., Yankton v. Epps, 652 F. App'x 242, 245 (5th Cir. 2016). The adjudicator
screens the grievance and determines whether to accept it into the ARP process. Id. If accepted,
the grievance is forwarded to the appropriate official who then issues a First Step Response to the
complaining inmate. Id. If the inmate is unsatisfied with the first response, he may continue to
the Second Step by completing an appropriate ARP form. Id. The Warden or other MDOC official
will then issue a final ruling, or Second Step Response, which completes the ARP process. Id. If
the inmate is unsatisfied with that response, he may file suit in state or federal court. Id.
The exhaustion requirement is mandatory. Porter v. Nussle, 534 U.S. 516, 524 (2002). It
“applies to all inmate suits about prison life” and must be adhered to “irrespective of the forms of
relief sought and offered through administrative avenues.” Id. at 532; Booth v. Churner, 532 U.S.
731, 741 n.6 (2001). The Fifth Circuit has held that “[d]istrict courts have no discretion to excuse
a prisoner’s failure to properly exhaust the prison grievance process before filing their complaint.”
Gonzalez v. Seal, 702 F.3d 785, 788 (5th Cir. 2012); see also Days v. Johnson, 322 F.3d 863, 866
(5th Cir. 2003) (holding that the Fifth Circuit takes “a strict approach” to the PLRA’s exhaustion
requirement).
Whetstone concedes that he submitted an ARP grievance in January 2017 that was
incomplete. Doc. #1 at 3. On January 23, 2017, the ARP director placed Whetstone on notice that
his grievance was unclear and instructed him on how to correct the deficiency. Doc. #68-1.
Whetstone stated at his Spears hearing that this was the case, and he admits that he never corrected
the ARP. Doc. #68-2 at 4.
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Upon review of the ARP grievance submitted by Whetstone, the Court agrees that
Whetstone did not name any official or even attempt to describe the person against whom his
grievance was lodged. Doc. #69-1. While he complains about his deteriorating medical condition
in the grievance, he never identified a treatment that he was denied. Id. Therefore, Whetstone
provided Defendants no “fair notice” of the issues raised in complaint.
Whetstone claims that he was not required to exhaust his ARP in 2017, as he submitted an
ARP in August 2011 while at Parchman about the same, continuing issue. See Doc. #77.
Assuming, arguendo, that Whetstone’s 2011 ARP grievance was exhausted, the Court notes that
Whetstone’s treatment at Parchman was six years removed from his complaint at CMCF and
involved separate incidents, even if his complaint was generally about his physical condition. The
Fifth Circuit has rejected the notion that a single previously-filed grievance constitutes perpetual,
continual exhaustion of a problem. See Johnson v. Johnson, 385 F.3d 503, 521 n. 13 (5th Cir.
2004) (noting that “a grievance filed in response to one particular incident [does not] automatically
exhausts claims that arise from future incidents of the same general type”). Accordingly, the Court
finds that Whetstone failed exhaust his administrative remedies, and his claims against Defendants
must be dismissed pursuant to 42 U.S.C. § 1997e(a).
B. Denial of Medical Care
Despite its procedural ruling, the Court nonetheless considers whether Whetstone has been
denied constitutionally adequate medical care. A plaintiff’s constitutional right to medical care is
abridged only if officials acted with deliberate indifference to his medical needs, as deliberate
indifference to an inmate’s serious medical needs violates the Eighth Amendment’s prohibition
against cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 103-04 (1978). The test
for establishing deliberate indifference is one of “subjective recklessness as used in the criminal
law.” Farmer v. Brennan, 511 U.S. 825, 839 (1994). Under this standard, a state actor is not liable
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under § 1983 unless the plaintiff alleges facts which, if true, would demonstrate that the prison
official (1) knew that the inmate faced a substantial risk of serious harm; and (2) disregarded that
risk by failing to take reasonable measures to abate it. Farmer, 511 U.S. at 847.
Negligent conduct by a prison official does not give rise to a constitutional violation.
Daniels v. Williams, 474 U.S. 327 (1986); Oliver v. Collins, 914 F.2d 56, 60 (5th Cir. 1990).
Moreover, a plaintiff’s disagreement with the course of medical treatment chosen will not support
a claim of deliberate indifference. See, e.g., Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir.
2001); Gibbs v. Grimmette, 254 F.3d 545, 549 (5th Cir. 2001). “[T]he decision whether to provide
additional treatment ‘is a classic example of a matter for medical judgment,’” and a prisoner’s
disagreement with his medical treatment, absent exceptional circumstances, does not satisfy the
deliberate indifference standard. Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006) (citing
Estelle, 429 U.S. at 107). In fact, even a misdiagnosis or mistreatment of the plaintiff’s condition
in what amounts to medical malpractice fails to satisfy the deliberate indifference standard. See,
e.g., Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991) (finding medical malpractice alone
does not support §1983 cause of action). Rather, liability under this demanding standard requires
the plaintiff to produce evidence that prison officials refused to treat him, ignored his complaints,
intentionally treated him incorrectly, or engaged in any other similar conduct that would clearly
evince a wanton disregard for any serious medical needs. Davidson v. Texas Dept. of Crim. J., 91
F. App’x 963, 965 (5th Cir. 2004) (citation omitted); see also Gobert, 463 F.3d at 346 (holding
that deliberate indifference requires inmate to show prison officials engaged in conduct that
“clearly evince[s] a wanton disregard for any serious medical needs”).
Whetstone suffers from degenerative disc disease. See, e.g., Doc. #73 at 2. Whetstone was
diagnosed with spondylolisthesis, or the forward displacement of one vertebra over another, in

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2013.4 See Doc. # 79-1; see also https://www.spineuniverse.com/conditions/spondylolisthesis
(last visited February 28, 2019). In support of their motion for summary judgment, Defendants
have produced the declaration of Dr. Santos, a medical doctor employed by Centurion, who treats
inmates in the custody of MDOC. Doc. #79-1. In his affidavit, Dr. Santos states that he has
reviewed Whetstone’s records and avers that “appropriate treatment for Spondylolisthesis with no
acute neurological deficits is nonsurgical conservative treatment such as nonsteroidal antiinflammatory drugs, physical therapy, or support.” Id. at ¶ 5. Dr. Santos asserts that Whetstone’s
records establish that he has been regularly monitored, and that testing has demonstrated that he
has “no acute neurological deficits.” Id. at ¶7. Dr. Santos otherwise notes that Whetstone has
been routinely prescribed calcium antacids for bone strength, Vitamin D for bone strength, aspirin
and ibuprofen for pain. Id. at ¶¶ 8-10. He additionally notes that Whetstone has been provided
lay-in tray services, a bottom bunk, and provided a walking cane. Id. at ¶11.
In response to Defendants’ motion, Whetstone argues that the declaration provided by Dr.
Santos is a creation of defense counsel that should not be credited. Doc. #87 at 1-7. Specifically,
he claims that MDOC has no competent medical professionals, and that any “treatment” he
receives, such as medication and a cane, are the result of his constant demands and not because of
any independent action by medical staff. See id.
The Court finds that Whetstone’s medical records confirm that he regularly receives
medications to treat his symptoms, and that he has been provided with a bottom bunk, a walking
cane, and a lay-in tray services. See, e.g., Doc. #84 at 18-19, 22.; Doc. #77 at 4, 17.5 His records

4

Whetstone also has retrolisthesis, or backwards slippage of one vertebra over another, on some of his vertebrae.
See, e.g., Doc. #73 at 22. See https://www.spineuniverse.com/conditions/spondylolisthesis/retrolisthesis-differsspondylolisthesis (last accessed February 28, 2019).

5

Whetstone denies that he receives lay-in tray services. Doc. #87 at 7. However, his medical records suggest that
they have been authorized and that he has refused such services. See Doc. #84-1 at 20.

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demonstrate that he receives regular monitoring and treatment for his degenerative spinal
condition. See, e.g., Doc. #68-2; Doc. #84-1 at 30, 48, 80, 100. Both Defendant Jarrett and
Defendant Brown have ordered x-rays of Whetstone’s spine, and Defendant Brown has prescribed
medication for Whetstone on numerous occasions. See Doc. #68-2; Doc. #73 at 2, 17, 22, 26, 59,
61-63. The Court finds that these records of examinations, diagnoses, and medications rebut
Whetstone’s allegation that he has been denied constitutionally adequate medical care. See
Banuelos v. McFarland, 41 F.3d 232, 235 (1995) (noting records “may rebut an inmate’s
allegations of deliberate indifference”).
The Court notes that in Thomas v. Pate, cited with approval in Estelle v. Gamble, 429 U.S.
97 104-05 (1976), the circuit court held that, in some cases, “it is sufficient to allege facts which
suggest that the medical care provided is so clearly inadequate as to amount to a refusal to provide
essential care or is so blatantly inappropriate as to evidence intentional mistreatment likely to
seriously aggravate the prisoner’s condition.” Thomas v. Pate, 493 F.2d 151, 158 (7th Cir. 1974).
Such is not the case here. While Whetstone argues that monitoring and medication refills do not
constitute “treatment,” his allegation is at odds with Dr. Santos’ declaration regarding the
appropriate treatment for his condition. Moreover, there is no indication from Whetstone’s
medical records, which include radiology reports and notes from others not employed by MDOC
or its contract medical providers, that any individual Defendant has interfered with any suggested
treatment.
Accordingly, the Court finds that Whetstone has stated only a dissatisfaction with the level
of medical care he has received, and the fact that Whetstone desires additional treatment is
insufficient to raise an issue of material fact on a claim of deliberate indifference. See Varnado v.
Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991). Defendants are entitled to summary judgment.

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VI.
Conclusion
Defendants’ motion for summary judgment [68] is GRANTED, and all Defendants are
fully and finally dismissed from this action with prejudice. Inasmuch as Whetstone’s claims fail
to state an actionable claim against any Defendant in this action, his motion to substitute a party
[86] is DENIED as moot. A final judgment consistent with this Order will enter today.
SO ORDERED, this 4th day of March, 2019.

/s/ Jane M. Virde
MAGISTRATE JUDGE JANE M. VIRDEN

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