Overstreet v. Hancock

Filing 169

ORDER denying 84 Plaintiff's Motion for Summary Judgment; denying 97 Plaintiff's Motion for Prison Release Orders. Signed by Magistrate Judge Michael T. Parker on February 6, 2013. (KM)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
HATTIESBURG DIVISION
JOHN HOWARD OVERSTREET

PLAINTIFF

VS.

CIVIL ACTION NO. 2:11cv245-MTP

WARDEN REGINA HANCOCK, ET AL.

DEFENDANTS

ORDER
THIS MATTER is before the court on the Motion for Summary Judgment [84] and the
Motion for Prison Release Orders [97] filed by Plaintiff. Having considered the motions and the
applicable law, the court finds that the Motions [84][97] should be DENIED.
In his Motion for Summary Judgment [84], Plaintiff complains that he was moved from
Area I to Area II at SMCI, which he claims is unsafe. He claims that he was moved to Area II in
retaliation for filing this lawsuit. First, this claim is not a part of Plaintiff’s action. See Omnibus
Order [68] and Order Amending Omnibus Order [102] (setting forth claims pending in this
action). Secondly, Plaintiff has since been transferred back to Area I; thus, this issue appears to
be moot. See Change of Address [141].
Plaintiff further argues that he should not be housed with the general inmate population
due to his mental illness. Plaintiff fails to offer any competent summary judgment evidence in
support of his motion. Instead, he simply rehashes the claims alleged in his complaint and at his
omnibus hearing.
Summary judgment is only proper when “the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material fact
and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). “The
movant has the burden of establishing the absence of a genuine issue of material fact and, unless

he has done so, the court may not grant the motion . . . .” See Hibernia Nat’l Bank v.
Administracion Central Sociedad Anonima, 776 F.2d 1277, 1279 (5th Cir. 1985). Plaintiff has
failed to meet this burden. Accordingly, his motion should be denied.
In his Motion for Prison Release Orders [97], Plaintiff complains that SMCI is
overcrowded and asks that he be released. First, Plaintiff has not alleged a claim in this matter
that SMCI is overcrowded. See Omnibus Order [68] and Order Amending Omnibus Order
[102]. Morever, the sole remedy for an inmate challenging the very fact or duration of his
physical imprisonment and seeking a determination that he is entitled to immediate release or a
speedier release from that imprisonment is a writ of habeas corpus. See Preiser v. Rodriguez,
411 U.S. 475, 500 (1973). Accordingly, Plaintiff’s Motion [97] should be denied.
IT IS, THEREFORE, ORDERED:
That Plaintiff’s Motion [84] for Summary Judgment and Motion for Prison Release
Orders [97] are DENIED.
SO ORDERED this the 6th day of February, 2013.
s/ Michael T. Parker
United States Magistrate Judge

2