Winding et al v. Lard et al

Filing 67

ORDER withdrawing 31 Motion to Continue; denying 37 Motion for Summary Judgment; terminating 39 Motion to Strike; terminating 46 Motion to Strike; denying 56 Motion for Injunctive Relief; adopting Report 59 Report and Recommendations ; denying 61 Motion to Amend/Correct; denying 62 Motion to Overcome 18 Motion to Dismiss; denying 63 Motion for Injunctive Relief; granting 66 Motion to Supplement to Arrest of Report and Recommendation 59 ; denying 16 Motion for Partial Summary Judgment; granting 18 Motion to Dismiss. Signed by District Judge Daniel P. Jordan III on December 19, 2013. (SP)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
JAMES WINDING and
NIGEL MCCLAIN

PLAINTIFFS

V.

CIVIL ACTION NO. 3:13CV142 DPJ-FKB

V. LARD ET AL.

DEFENDANTS
ORDER

This cause is before the Court on two Reports and Recommendations [57, 59] entered by
Magistrate Judge F. Keith Ball. Plaintiff James Winding has filed Objections [64, 65]. Winding
has also filed additional motions [61, 62, 63, 66], since the entry of the Reports and
Recommendations, which are also addressed in this Order.
I.

Motion to Continue Case In Forma Pauperis Status
Winding initially filed this suit in state court, and Defendants removed the case and paid

the federal filing fee. Following removal, Winding moved to prosecute this action in forma
pauperis [31], which Judge Ball recommended [57] denying. On December 18, 2013, Winding
filed a “Motion to Supplement to Arrest of Report and Recommendation” [66], in which he
points out that Magistrate Judge Roper held in another of Winding’s cases that his motion to
proceed in forma pauperis was moot because Defendants had paid the filing fee upon removal to
federal court. See Order [35], Winding v. Vincent, Civil Action No. 3:13cv425 TSL-JMR. The
Court construes this filing as Winding’s request to withdraw his motion to proceed in forma
pauperis [31] in this action. His request to withdraw [66] is granted. Alternatively, the Court
agrees that the motion can be considered moot.

II.

Motions for Partial Summary Judgment and Motion to Dismiss
Second, Judge Ball recommended [59] that Winding’s motions for partial summary

judgment [16, 37] be denied. Judge Ball also suggested granting the motion to dismiss [18] filed
by Defendants Lard, Prude, Bryant, Rice, Ovalle, Shaw, and Hollie (the MTC Defendants).
These Defendants moved to dismiss Winding’s claims for failure to exhaust his administrative
remedies and to dismiss Nigel McClain’s allegations based on his failure to state a claim.
In addition to his “Motion to Object” [64] that addressed denial of his in forma pauperis
request, Winding also filed a “Motion to Supplement to Motion to Object to Report and
Recommendation and Respond to Order Document (58)” [65]. The Court construes this filing
[65] as a supplement to his Objection [64] that encompasses his response to Judge Ball’s second
Report and Recommendation [59]. In this filing, Winding complains that Defendants are
refusing to allow him and co-plaintiff Nigel McClain to reside in the same cell, despite a
settlement agreement between the parties.
As this Court has explained before, it does not interfere with prison policy concerning
housing of inmates. See generally Janali v. Correction Corp. of America, No. 5:11cv119 KSMTP, 2013 WL 6536373, at *7 (S.D. Miss. Dec. 13, 2013) (“Also, courts must give deference to
the prison officials responsible for creating and establishing policies and maintaining order and
security.”) (citation omitted); Anderson v. Rice, No. 4:12cv64 HTW-LRA, 2013 WL 6230115, at
*2 (S.D. Miss. Nov. 30, 2013) (“Moreover, ‘prison administrators . . . should be accorded
wide-ranging deference in the adoption and execution of policies and practices that in their
judgment are needed to preserve internal order and discipline and to maintain institutional
security.’”) (quoting Whitley v. Albers, 475 U.S. 312, 321–22 (1986)) (other citation omitted);
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see also Bell v. Wolfish, 441 U.S. 520 (1979); Royal v. Clark, 447 F.2d 501, 501–02 (5th Cir.
1971) (“Federal Courts will not interfere in the administration of prisons absent an abuse of the
wide discretion allowed prison officials in maintaining order and discipline.” (citations
omitted)).1 The Objection is not well-taken.
In sum, the Court adopts the Report and Recommendation [59] of Judge Ball; denies
Winding’s motions for partial summary judgment [16, 37]; and grants Defendants’ motion to
dismiss [18]. In addition, Defendants’ motions [39, 46] to strike Winding’s motions for
summary judgment may be terminated.
III.

Additional Motions
As mentioned, Winding has filed numerous motions since entry of the Reports and

Recommendations.
-

Winding attached to his Objection a “Motion for Re-Newal” asking the Court, without
elaboration, to reconsider Judge Ball’s Order [58] denying or terminating seventeen (17)
motions [24, 25, 26, 27, 28, 32, 33, 34, 36, 9, 10, 12, 15, 20, 21, 22, 23]. This request is
denied. As explained by Judge Ball [58], some of these motions were attempts to assert
new claims that should be pursued in separate lawsuits, while other motions sought no
particular relief from the Court.
1

To the extent Winding is arguing that Defendants have breached some kind of
agreement, that claim is not raised in his Complaint [1] or Amended Complaint [60]. Moreover,
his filings suggest that he offered to dismiss his claims in exchange for rooming with Plaintiff
McClain, but it is not apparent that there was a meeting of minds as to this issue. And
furthermore, the denial of an inmate’s request to be housed in the same cell as a specific inmate
does not rise to a constitutional violation. See generally Bell, 441 U.S. at 544 (“‘Concern with
minutiae of prison administration can only distract the court from detached consideration of the
one overriding question presented to it: does the practice or condition violate the Constitution?’”)
(quoting Wolfish v. Levi, 573 F.2d 118, 125 (2d Cir. 1978)).
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-

Winding’s motions for injunctive relief [56, 63] asking the Court to direct EMCF to
allow him to invoke the buddy system at EMCF are denied. Again, the Court does not
interfere with prison policy concerning housing of inmates.

-

Likewise, Winding’s “Motion to Overcome Defense Motion to Dismiss due to Civil
Conspiracy” [62] is denied. To this motion, he attaches a letter from his case manager
dated July 12, 2013, memorializing Winding’s request to be housed with Nigel McClain
in exchange for dismissal of his pending lawsuits. Again, the Court does not interfere
with prison policy concerning housing of inmates. Moreover, this filing does not
evidence a civil conspiracy, does not overcome Defendants’ motion to dismiss [18], and
does not change the Court’s holding with respect to the Report and Recommendation
[59].

-

Winding’s “Motion to Amend and Submit New Evidence of On-Going Corruption
Within MTC and MDOC Offical(s) [sic]” [61] is denied. To this motion, Winding
attached various news articles printed from the internet that he insists “will prove a
pattern at best of deliberate indifference.” Motion [61] at 1. But “newspaper articles
[are] classic, inadmissible hearsay.” Roberts v. City of Shreveport, 397 F.3d 287, 295
(5th Cir. 2005) (rejecting attempt to use newspapers articles to show a pattern of
unconstitutional activity necessary to prove deliberate indifference); see James v. Tex.
Collin Cnty., 535 F.3d 365, 374 (5th Cir. 2008) (“Newspaper articles, however, are not
proper summary judgment evidence to prove the truth of the facts that they report because
they are inadmissible hearsay.”). The proposed evidence is inadmissible hearsay;
Winding’s request [61] is denied.
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Finally, the Court cannot ignore Winding’s continuing habit of filing repetitive and
unnecessary motions; this practice will not be tolerated. Federal Rule of Civil Procedure
11(b)(1) cautions a litigant that presentation to the court of a pleading certifies that the pleading
“is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or
needlessly increase the cost of litigation . . . .” Federal Courts have inherent powers “to protect
the efficient and orderly administration of justice and . . . to command respect for [their] orders,
judgments, procedures, and authority.” In re Stone, 986 F.2d 898, 902 (5th Cir. 1993). Included
in this inherent power is the authority to issue sanctions for abusive litigation practices. Id.; see
also Baum v. Blue Moon Ventures, LLC, 513 F.3d 181, 189 (5th Cir. 2008) (finding district court
has jurisdiction to sua sponte impose a pre-filing injunction to deter vexatious filings); Thomas v.
Capital Sec. Servs., Inc., 836 F.2d 866, 877 (5th Cir. 1988) (finding in relation to Rule 11
sanctions that “the district court is vested with considerable discretion in determining the
‘appropriate’ sanction to impose”). Winding is warned that in the future, he should refrain
from filing repetitive motions. Failure to do so will result in monetary sanctions.
IV.

Remaining Claim
This Order disposes of all pending motions in this case, as of this date. The only

remaining claim is Winding’s claim against Defendant Tina Naylor, as set forth in the Amended
Complaint [60] filed November 21, 2013. The next logical step is that Defendant Naylor will file
an Answer or other responsive pleading. Winding is discouraged from filing any additional
motions until this takes place.
SO ORDERED AND ADJUDGED this the 19th day of December, 2013.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE
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