Raiford v. State of Mississippi et al

Filing 72

ORDER denying 64 Motion to Take Judicial Notice of Fraud Upon the Court; granting in part and denying in part 65 Motion to Substitute Party.Sky Johnson is hereby substituted in place of Unknown Scott. All other relief requested in Motions 64 and 65 is denied. Signed by Magistrate Judge Michael T. Parker on April 23, 2018. (jg)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
ROBERT EARL RAIFORD, #07425-043

PLAINTIFF

V.

CIVIL ACTION NO. 2:16-CV-174-KS-MTP

COUNTY OF FORREST, MISSISSIPPI, et al.

DEFENDANTS

ORDER
THIS MATTER is before the Court on Plaintiff’s Motion [64] to Take Judicial Notice of
Fraud Upon the Court and his Motion [65] for Leave to Change Parties Names from John Does.
In Motion [64], Raiford requests that William Allen, attorney for the Forrest County Defendants,
be sanctioned and the Court take notice that he purportedly “hid” the real name of Defendant
“Unknown Scott” and did not provide the location of Defendant Greg Anderson so that
Anderson could be served. In Motion [65], Plaintiff requests to add Sky Johnson in place of
“Unknown Scott,” add her employer Forrest General Hospital, and add William Allen’s law firm
as defendants. For the reasons which follow, the Court DENIES the Motion [64] to Take Judicial
Notice of Fraud Upon the Court and GRANTS IN PART AND DENIES IN PART the Motion
[65] for Leave to Change Parties Names from John Does.
Factual and Procedural Background
Plaintiff alleges that on October 5, 2013, while he was temporarily housed at the Forrest
County Jail, Defendant Deputy Greg Anderson accidentally provided him a used syringe for selfinjection of his daily insulin and that Plaintiff stuck himself with it. Nearly three years after this
incident occurred, Plaintiff filed a voluminous complaint suing over 30 defendants,1 most of
whom are John Does, or “unknowns.” See Complaint [1]; Memo [7] in Support of Complaint.

1

Counsel William Allen was originally a defendant in the case, but has since been dismissed
after the Court screened the claims against him pursuant to 28 U.S.C. § 1915(e)(2)(B). See
Report and Recommendation [51] and Order [63]. Plaintiff has presented a rather straightforward
claim of deliberate indifference to his medical needs. Unfortunately, that claim has been
1

On April 27, 2017, to aid Plaintiff in getting the proper defendants before the Court, the
Court sent an order and waivers of service to William Allen, who routinely represents Forrest
County and its officers in this Court. This included waivers of service for “Unknown Scott” and
Greg Anderson.
On May 30, 2017, Billy McGee, William Robert Allen, Betty Carlisle, and Debra Brown
waived service of process. See Waivers [14, 15]. On June 5, 2017, Forrest County waived service
of process. See Waiver [16]. “Unknown Scott” did not waive service and no response was filed
on her behalf. The Court then ordered the Defendants that were before the Court to provide
Scott’s full name, if known, and Scott’s address. See Order [20]. Plaintiff was also ordered to
provide this information and explain why the claims against unknown defendants should not be
dismissed if neither he nor the defendants could provide the identifying information. Id
The Defendants filed a response indicating they do not employ “Unknown Scott” and
they are unsure of her name, but that she may be an employee of Forrest General Hospital. They
also provided the last known address of Greg Anderson, as he was no longer employed by
Forrest County. See Response [26]. Plaintiff did not provide the information as ordered, but
merely moved to make Defendants provide the information and moved for more time to serve
process. See Motions [23] and [24]. The United States Marshal Service attempted to serve Greg
Anderson at the address provided by Defendants, but could not do so as he no longer lived at the
address provided. See U.S. Marshal’s Return Unexecuted [38]. At the time, the Court did not
have enough information to attempt to have “Unknown Scott” served.

surrounded by, and delayed by, a fair amount of “rabbit chasing” with claims asserted against
scores of individuals over every perceived slight imaginable. The current claim of fraud against
against counsel for the defendants is simply more of the same.
2

At the Omnibus and Spears hearing, the Defendants before the Court suggested that
“Unknown Scott” may be Nurse Sky Johnson. However, Plaintiff insisted numerous times under
oath that Nurse Sky Johnson was not the individual he intended to sue, and plainly stated that
“Unknown Scott” was a different individual. Plaintiff even differentiated “Unknown Scott” and
“Sky Johnson” at the hearing by stating that “Ms. Sky is a big ol' fat woman. Ms. Scott is a little
small woman. Ms. Scott is a small woman, Your Honor.” He also indicated that Scott worked in
the daytime and Sky Johnson worked at night. The Court then ordered the Defendants to identify
and provide the first name of Defendant “Unknown Scott” and provide an address to the Court,
under seal, at which she may be served. See Omnibus Order [50]. The Defendants filed a
response indicating that “Unknown Scott” is still believed to be Nurse Sky Johnson and
providing an address at which Johnson may be served. See Response [60].
Motion [64] to Take Judicial Notice of Fraud Upon the Court
Plaintiff now claims Sky Johnson is the correct defendant, accuses Mr. Allen of willfully
“hiding” the identity of “Unknown Scott,” and asks for sanctions against Mr. Allen and his firm.2
Plaintiff’s request and allegations are frivolous. Plaintiff accuses Mr. Allen of “sitting mute”
when the Court addressed matters relating to Unknown Scott at the omnibus hearing. See
Motion [65] at 2. However, Mr. Allen was far from mute and clearly identified Sky Johnson at
the hearing, and at that time, Plaintiff flatly and clearly maintained that “Unknown Scott” was
not Sky Johnson. It is ludicrous to expect the court to discipline counsel and take judicial notice

2

At the omnibus hearing, the Court directed the Defendants to provide Plaintiff his medical
records arising from or created during his incarceration at the Forrest County Jail. See Omnibus
Order [50] at 4. These records are relevant to the Plaintiff’s claims and it was hoped that the
records might help Plaintiff identify the person he intended to sue. See Response [60](indicating
Defendants’ compliance with Omnibus order and record production). It appears that Plaintiff
identified Sky Johnson from these records.

3

of fraud when Sky Johnsons’ name was provided as ordered by the Court and Plaintiff insisted
that Sky Johnson was not “Unknown Scott.”3
Plaintiff also asks for sanctions against Mr. Allen because he did not provide an address
where Greg Anderson could be served. See Motion [64]. Plaintiff alleges that because Allen
represented Anderson in a matter in filed in 2015, counsel “perpetuated a fraud upon the Court”
by failing to provide an address where Anderson could be served.
Counsel agrees that he represented Greg Anderson in William v. McGee, CA. No. 2:15cv-21-FKB and filed an answer for him in November 2016. See Response [70] at 4. According to
counsel, who represented multiple Forrest County employees in that matter, Anderson’s
employment with Forrest County subsequently ended after he filed an Answer on Anderson’s
behalf and Anderson did not provide the counsel with updated contact information.4 As such,
counsel was unable to waive service of process for Anderson in this matter, but provided the
Court with his last known address. See [70].5 After the omnibus hearing, the Marshal located and
served Greg Anderson, at which time he associated Mr. Allen to represent him. See Response
[70]; Order [56]; *SEALED* Summons [58] Returned Executed. The Court finds no “fraud on

3

 Plaintiff and those assisting him are not entitled to create facts. Plaintiff is warned that further
mistruths and vexatious filings could result in sanctions against him, including dismissal of his
case. 

4

The case was eventually dismissed as the Plaintiff in that matter had not suffered a
constitutional violation.
5

Plaintiff should not be surprised that by waiting three years to file this action it may be difficult
to locate defendants. Defendants provided the addresses they had and were required to do no
more. Defendants have no obligation to prosecute Plaintiff’s case for him by assisting him in
locating former employees. “It is ultimately Plaintiff's responsibility to determine the
identity and address of those he wishes to sue, even though he is in prison.” Williams v.
Shaw, No. 5:14CV52-DCB-JCG, 2015 WL 13236938, at *5 (S.D. Miss. Dec. 18, 2015), report
and recommendation adopted, No. 5:14-CV-52(DCB)(JCG), 2016 WL 1060840 (S.D. Miss.
Mar. 17, 2016) (emphasis in original). Moreover, Greg Anderson is now before the Court.
4

the court” or any other misconduct of any kind by Mr. Allen or his firm. The Motion [64] to
Take Judicial Notice of Fraud Upon the Court is hereby DENIED.
Motion [65] for Leave to Change Parties Names from John Does
In Motion [65], Plaintiff requests that the Court substitute “Sky Johnson” in place of
“Unknown Scott.” See Motion [65] at 5. He also requests that Forrest General be added as they
are “in part or in whole, liable for the conduct/injury sustained by Plaintiff due to Defendant Sky
Johnson’s deliberate indifference and reckless disregard for Plaintiff’s emergency medical
needs.” Id. He also requests William Robert Allen’s law firm be added as a Defendant. Id.
Plaintiff’s request to add “Sky Johnson” in place of “Unknown Scott” places the Court in
a peculiar circumstance. Plaintiff had the chance to substitute “Sky Johnson” at the omnibus
hearing and adamantly denied that she was the right defendant. As Plaintiff now takes the
position that she is the right defendant, the Court will allow her substitution. “Sky Johnson” is
hereby substituted in place of “Unknown Scott.” By allowing Sky Johnson to be added as a
Defendant, the Court is in no way suggesting that there is any merit to the claims Plaintiff is
asserting.
The request to add Forrest General Hospital is denied as futile. Plaintiff wishes to add the
Hospital because they would be liable for Sky Johnson’s alleged “deliberate indifference and
reckless disregard” for Plaintiff’s medical needs. It is well-settled that Section 1983 does not
“create supervisory or respondeat superior liability.” Oliver v. Scott, 276 F.3d 736, 742 & n.6
(5th Cir. 2002); see also Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir. 1987). Plaintiff is
attempting to add the hospital based on respondeat superior or vicarious liability, as such, the
request to add Forrest General Hospital as a defendant is denied.

5

The request to add William Robert Allen’s law firm is likewise denied as futile and
frivolous. The claims against Mr. Allen have already been dismissed pursuant to 28 U.S.C. §
1915(e)(2)(B). See Report and Recommendations [51] and Order [63] Accepting Magistrate
Judge’s Recommendation. In the motion, Plaintiff gives no reason why Mr. Allen’s firm should
be added as a Defendant and the Court finds none. This request is denied.6
IT IS, THEREFORE, ORDERED that:
1. Plaintiff’s Motion [64] to Take Judicial Notice of Fraud Upon the Court is DENIED. All
relief requested in the Motion [64] is Denied.
2. Plaintiff’s Motion [65] for Leave to Change Parties Names from John Does is
GRANTED IN PART AND DENIED IN PART.
3. “Sky Johnson” is hereby substituted in place of “Unknown Scott.” A separate order will
be issued regarding service of process on Sky Johnson. All other relief requested in the
Motion [65] is denied.
4. As a new party is being added to the lawsuit the motions deadline is hereby suspended,
and will be reset as appropriate.
5. Plaintiff is reminded that the only claims and Defendants that remain before the Court
are outlined in Omnibus Order [50] and Order [63]. The only claims remaining are
against Forrest County, Billy Magee (in his official capacity), Greg Anderson, and Sky
Johnson.7
SO ORDERED this the 23rd of April, 2018.
s/ Michael T. Parker
United States Magistrate Judge 

6

In a footnote in Motion [65], the Plaintiff also asks that a sanction or default judgment be
entered against Charles Bolton. Charles Bolton has already been dismissed from this matter. See
Order [63].

7

As substituted in place of “Unknown Scott.”
6