Evans v. Lander et al

Filing 52

OMNIBUS ORDER. Bench Trial set for 2/29/2012 09:00 AM before Magistrate Judge F. Keith Ball. Wexford Health Sources dismissed. Signed by Magistrate Judge F. Keith Ball on 7/25/11. (Copy mailed to Plaintiff.)(dfk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
OLLIE LEE EVANS
VS.

PLAINTIFF
CIVIL ACTION NO. 3:10cv673-FKB

BRIND LADNER, et al.

DEFENDANTS
OMNIBUS ORDER

Ollie Lee Evans is a Mississippi Department of Corrections (MDOC) inmate who in
the past has been housed at both Central Mississippi Correctional Facility (CMCF) and
South Mississippi Correctional Institution. The individual defendants are prison officials.
Defendant Wexford Health Sources (Wexford) is a healthcare contractor which provides
medical care to MDOC inmates. Plaintiff brought this action pursuant to § 1983 alleging
that he has been exposed to second-hand smoke at both CMCF and SMCI and that
Defendant Wexford has denied him medical treatment for his breathing problems
resulting from the second-hand smoke exposure. A Spears hearing has been held, and
the parties have consented to jurisdiction by the undersigned. Having considered the
complaint, Plaintiff’s testimony at the hearing, and the pending motions, the Court finds
and rules as follows.
Defendant Wexford Health Sources has moved to dismiss the claims against it
based upon Plaintiff’s alleged failure to exhaust. The applicable section of the Prison
Litigation Reform Act (PLRA), 42 U.S.C. § 1997(e), requires that an inmate bringing a civil
rights action in federal court first exhaust his administrative remedies. Whitley v. Hunt,
158 F.3d 882 (5th Cir. 1998). This exhaustion requirement “applies to all inmate suits

about prison life.” Porter v. Nussle, 534 U.S. 516, 122 S. Ct. 983, 992 (2002). In support
of the motion, Wexford has submitted documents it received from Plaintiff regarding a
grievance Plaintiff filed with the Administrative Remedies Program (ARP) at CMCF. The
documents indicate that Plaintiff filed a grievance requesting to be transferred to another
facility because of the second-hand smoke at CMCF. Wexford argues that it is entitled to
dismissal because these documents do not show that Plaintiff ever filed an ARP
grievance concerning any actions or failure to act by Wexford.
Exhaustion under the PLRA is an affirmative defense. Jones v. Bock, 549 U.S.
199, 217 (2007). Thus, Wexford bears the burden of proof on this issue. Although
Wexford has included records with its motion, the records are not accompanied by any
affidavit authenticating them. Furthermore, there is no affidavit or other evidence to
establish that these are all of Plaintiff’s ARP records and that he filed no grievance
concerning the claims asserted against Wexford in this lawsuit. Accordingly, dismissal is
not warranted for failure to exhaust the claims against Wexford.1
Nevertheless, the Court agrees with Wexford that judgment as a matter of law is
warranted on Plaintiff’s claims against it. Where the wrong complained of is a denial of
medical treatment, a prisoner must allege deliberate indifference to serious medical
needs. Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991); see also Estelle v.
Gamble, 429 U.S. 97, 105 (1976). To establish deliberate indifference, a prisoner must

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Prior to the filing of the present motion, Plaintiff filed motions requesting a
declaration that he has exhausted his administrative remedies. These documents reveal
that Plaintiff filed an ARP concerning second-hand smoke. However, they do not address
the issue of whether he has filed an grievance concerning denial of medical care by
Wexford.
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show that the defendant “refused to treat him, ignored his complaints, intentionally treated
him incorrectly, or engaged in any similar conduct that would clearly evince a wanton
disregard for any serious medical needs.” Domino v. Texas Dep’t of Criminal Justice, 239
F.3d 725, 756 (5th Cir. 2001). Plaintiff’s allegations against Wexford fall far short of this
standard. The sum of the factual basis for Plaintiff’s claim appears to be that Wexford
has failed to have him tested him to determine whether he has suffered any lung damage
as a result of exposure to second-hand smoke. Furthermore, Plaintiff has failed to
identify any individual who was responsible for any refusal to provide him treatment.
Accordingly, all claims against Wexford are hereby dismissed.
The remaining claims are hereby set for a bench trial before the undersigned on
Wednesday, February 29, 2012 at 9:00 a.m.
Plaintiff’s motion to amend to join Emmett Sparkman as a defendant [20] is hereby
granted. The Clerk is directed to issue a summons for this defendant and to forward
same to the U.S. Marshal for service of process. Plaintiff’s other motions to amend [26,
28, and 29] are dismissed as moot.
Plaintiff’s motions for default judgment and for a speedy trial [25 and 33] are
denied.
Upon motion of the Plaintiff, the Court shall secure the presence at the trial of up to
three witnesses who are incarcerated if the Court concludes that their testimony is
relevant. Plaintiff shall include in any such motion the prisoner identification number and
correctional facility in which the witness is housed and shall state in detail the nature of
the proposed testimony and how it is relevant to the factual issues of Plaintiff’s claim.

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Any such motion shall be made no later than thirty days prior to trial.
Should any of Plaintiff’s witnesses be or become “free world,” Plaintiff shall be
responsible for securing their voluntary presence at the hearing. Should a “free world”
witness refuse to appear voluntarily, Plaintiff shall adhere to the following procedure to
secure the witness’s presence. No later than thirty days prior to trial, Plaintiff shall submit
to the Clerk’s office a request for a subpoena to be issued for the witness and returned to
Plaintiff. The request shall include the name and address of the witness. The issued
subpoena will be returned to Plaintiff, who shall be responsible for having the subpoena
served in accordance with Rule 45 of the Federal Rules of Civil Procedure.
Plaintiff’s motion for leave to propound discovery requests [25] is granted.
Discovery in this case shall be limited to thirty interrogatories, thirty requests for
production, and thirty requests for admission for each party. Defendants shall produce all
of Plaintiff’s prison medical records to him within thirty days, if they have not already done
so. All discovery shall be completed by October 28, 2011. Any dispositive motions shall
be filed by November 11, 2011.
So ordered and adjudged, this the 25th day of July, 2011.
/s/ F. Keith Ball
______________________________________
UNITED STATES MAGISTRATE JUDGE

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