Raiford v. State of Mississippi et al
Filing
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ORDER ACCEPTING MAGISTRATE JUDGE'S 51 RECOMMENDATION, Robert EarlRaiford's claims against Betty Carlisle, Charles Bolton, Robert Allen and Debra Brown should be DISMISSED, that all claims against Magee should be DISMISSED except those aga inst him in his official capacity with regard to the medical policy at the jail, that the claims against Jacqueline Duckworth, John Doe 16, John Doe 17 and John Doe 19 are DISMISSED, that Motions 30 and 32 are DENIED AS MOOT, with the only cla im to proceed against any of the defendants, are the claims against Forrest County and Magee in his official capacity, Anderson, and Scott, and that Plaintiff's Motion 36 and Motion 43 are DENIED AS MOOT and that as outlined in the Omnibus Order 50 the claims against Anderson, Scott and Magee in his official capacity and Forrest County should proceed at this time. Signed by District Judge Keith Starrett on 04/04/2018. [Copy of Order mailed to Plaintiff] (CS)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
ROBERT EARL RAIFORD, #07425-043
PLAINTIFF
VS.
CIVIL ACTION NO. 2:16-cv-174-KS-MTP
COUNTY OF FORREST, MISSISSIPPI, et al
ORDER ACCEPTING MAGISTRATE JUDGE’S RECOMMENDATION
THIS CAUSE IS BEFORE THE COURT for an evaluation of Plaintiff’s claims pursuant
to 28 U.S.C. §1915(e)(2)(B), on plaintiff’s ore tenus motion to dismiss certain defendants at the
Spears hearing, and on plaintiff’s Motion [36] for Entry of Default Judgment. Having
considered the record and applicable law, the Spears hearing, the Omnibus Order [50], the
Report and Recommendations [51] by Magistrate Judge Michael T. Parker and the Objections to
Report and Recommendations and Motion to Set Aside the Omnibus Order and Reassign the
Case for Hearing De Novo [61] and [62]1 and the Court does hereby find as follows:
I.
JURISDICTION AND SUMMARY OF CLAIMS
Because Plaintiff’s claims are brought under 42 U.S.C. § 1983, the Court has federal
question jurisdiction pursuant to 28 U.S.C. § 1331. Plaintiff was incarcerated at the Forrest County
Adult Detention Center during the alleged events, but he currently is incarcerated at a federal
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Document [61] and [62] are identical. However, pleadings are not to be combined but defendant combined his
objections to the Report and Recommendation and Motion to Set Aside Omnibus Order, etc. into one document. The
Court has docketed the same document as documents [61] and [62], one will be addressed as the Objection to the
Report and Recommendation and the other will be addressed as the Motion to Set Aside Omnibus Order, etc.
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correctional institution in Talladega, Alabama. The Plaintiff’s claims and relief sought were
clarified and amended by his sworn testimony at the Spears2 hearing.
At the hearing, Plaintiff clarified that he did not want to sue Defendants Nurse Jacqueline
Duckworth, John Doe 16, John Doe 17, John Doe 19 and moved to voluntarily dismiss them. They
will be dismissed.
He is also suing various medical providers, Forrest County, and Forrest County officials
because he claims that Defendant Deputy Greg Anderson mistakenly gave him a used syringe for
his insulin shot, and after being stuck with it, he was not given adequate follow up care. See
Omnibus Order [50]. He claims Forrest County has a practice or policy of allowing non-medical
personnel to dispense prescription medication and does not follow a proper protocol when
someone is exposed to possible diseases. Id.
As clarified at the hearing, Plaintiff sues Betty Carlisle, Charles Bolton, and Billy Magee
as they are supervisors in Forrest County and are responsible for what happens at the jail. He is
also suing Billy Magee, William Allen, and Debra Brown for not responding to his public records
request after he left Forrest County. He claims that this somehow denied him access to the court
and impeded him from filing suit or litigating because he lacked documents. All claims against
Betty Carlisle, Charles Bolton, William Allen, and Debra Brown should be dismissed. All claims
against Billy Magee should be dismissed except claims against him in his official capacity related
to medical policy at the jail.
II. STANDARD OF REVIEW
See Flores v. Livingston, 405 Fed App’x 931, 932 (5th Cir. 2010) (stating that allegation made
at a Spears hearing supersede claims alleged in the complaint).
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When a party objects to a Report and Recommendation this Court is required to “make a
de novo determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). See also Longmire v. Gust,
921 F.2d 620, 623 (5th Cir. 1991) (Party is “entitled to a de novo review by an Article III Judge as
to those issues to which an objection is made.”) Such review means that this Court will examine
the entire record and will make an independent assessment of the law. The Court is not required,
however, to reiterate the findings and conclusions of the Magistrate Judge. Koetting v. Thompson,
995 F.2d 37, 40 (5th Cir. 1993) nor need it consider objections that are frivolous, conclusive or
general in nature. Battle v. United States Parole Commission, 834 F.2d 419, 421 (5th Cir. 1997).
No factual objection is raised when a petitioner merely reurges arguments contained in the original
petition. Edmond v. Collins, 8 F.3d 290, 293 (5th Cir. 1993).
III . PETITIONER’S OBJECTIONS AND ANALYSIS
The Petitioner is obviously aggrieved with the Report and Recommendation of the
Magistrate Judge [51] and with the Omnibus Order [50]. He first complains about the way the
Magistrate Judge conducted the Omnibus Hearing. The allegations concerning the Magistrate’s
conduct are conclusory and lack factual allegations. He continues in a rambling and irrelevant
statement about his 1983 civil rights action and makes conclusory statements that do not address
the Report and Recommendation.
His next paragraph also advances conclusory allegations regarding his “novel
constitutional claims” without listing same, and requests again appointed counsel and then tries
to establish a Federal property interest in public records. He continues to ramble and make
irrelevant statements that do not address the Report and Recommendation.
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Judge Parker in his Report and Recommendation addresses the Public Records Act
request and the allegations regarding same as submitted by Petitioner as irrelevant, conclusory
and incorrect. Without addressing the specifics of the Report and Recommendation he accuses
the Magistrate Judge of mischaracterization of the events of the Omnibus hearing.
In his third allegation he claims that defendant Scott’s employer should be substituted for
John Doe #27. The Court notes that Scott’s employer is Forrest County, and Forrest County,
Mississippi is a defendant.
In paragraph four he claims a strategy delaying submission of interrogatories and objects
to the one interrogatory that he was allowed to ask.
In his fifth objection Petitioner, without specifics, alleges that the Magistrate Judge
mischaracterized the facts in plaintiff’s claim and finally requests setting aside of the Omnibus
Hearing and setting it for a rescheduled Omnibus Hearing.
The analysis by Judge Parker pursuant to 28 U.S.C. §1915(e)(2) states a logical and fact
based reasoning for the recommendation made. §1983 only allows supervisory liability claims in
limited circumstances, none of which are applicable in this case. The Petitioner does not question
nor make objection to this finding by the Magistrate Judge nor does he address any of the other
reasoning in Document [51]. A suit against Betty Carlisle and Charles Bolton in their official
capacities is duplicative of the claims against Forrest County and Billy Magee in his official
capacity.
Petitioner does not address the reasoning of the Magistrate Judge in his explanations
regarding customs or practice.
The Magistrate Judge also succinctly set out the reasoning for finding contrary to
Petitioner on his claims of failure to respond to public records requests and to his being denied
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access to the Courts. The Petitioner is making claims that are not cognizable under the
circumstances of this case. The plaintiff has not demonstrated how the defendants hindered his
ability to pursue his legal claim and why the Motion for Entry of Default [36] was not granted –
which was that all defendants who had been served had filed an answer. Motion [43] is moot.
After considering the Petitioner’s Motion and Objection [61] and [62] the Court finds that
the claims against Betty Carlisle, Charles Bolton, Robert Allen and Debra Brown should be
dismissed pursuant to 28 U.S.C. §1915(e)(2)(B), that the claims against Magee should be
dismissed except those against him in his official capacity with regard to the medical policy at
the jail, the claims against Jacqueline Duckworth, John Doe 16, John Doe 17, and John Doe 19
be dismissed as a result of plaintiff voluntarily moving to dismiss them at the Spears Hearing,
that Motions [30] and [32] for Judgment on the Pleadings filed by Debra Brown, Betty Carlisle,
County of Forrest Mississippi, Billy Magee and William Robert Allen are denied at moot, and
the only claim to be proceeded on is against Forrest County and Magee in his official capacity,
and that plaintiff’s Motion for Entry of Default [36] and Motion [43] to Withdraw Motion [36]
should be denied as moot. Also, as outlined in the Omnibus Order [50] the claims against
Anderson, Scott, Magee in his official capacity, and Forrest County should proceed.
IV. CONCLUSION
As required by 28 U.S.C. §636(b)(1) this Court has conducted an independent review of
the entire record and a de novo review of the matters raised by the Objection. For the reasons set
forth above, the Court concludes that Raiford’s Objections lack merit and should be
OVERRULED. The Court further concludes that the proposed Report and Recommendation is
an accurate statement of the facts and the correct analysis of the law in all regards. Therefore the
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Court accepts, approves, and adopts the Magistrate Judge’s factual findings and legal
conclusions contained in the Report and Recommendations.
Accordingly IT IS ORDERED that United States Magistrate Judge Michael T. Parker’s
Report and Recommendation is accepted pursuant to 28 U.S.C. §636(b)(1) and that Robert Earl
Raiford’s claims against Betty Carlisle, Charles Bolton, Robert Allen and Debra Brown should
be DISMISSED pursuant to 28 U.S.C. §1915(e)(2)(B), that all claims against Magee should be
DISMISSED except those against him in his official capacity with regard to the medical policy
at the jail, that the claims against Jacqueline Duckworth, John Doe 16, John Doe 17 and John
Doe 19 are DISMISSED, that Motions [30] and [32] are DENIED AS MOOT, with the only
claim to proceed against any of the defendants, are the claims against Forrest County and Magee
in his official capacity, Anderson, and Scott, and that Plaintiff’s Motion [36] and Motion [43] are
DENIED AS MOOT and that as outlined in the Omnibus Order [50] the claims against
Anderson, Scott and Magee in his official capacity and Forrest County should proceed at this
time.
SO ORDERED this the _4th____ day of April, 2018.
___s/Keith Starrett _______________
UNITED STATES DISTRICT JUDGE
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