Winding v. Ozerden et al

Filing 24

ORDER ADOPTING IN PART 21 REPORT AND RECOMMENDATIONS; finding as moot 18 Motion to Dismiss filed by James C. Winding, as the court grants 13 Motion to Dismiss, filed by Keith Ball, Robert Walker, H. Suleymon Ozerden; denying 17 Motion t o Amend/Correct filed by James C. Winding; denying 23 Motion to arrest report and recommendations; denying 19 motion for order to show cause, etc. Defendant Lewis is granted an opportunity to file a motion for summary judgment raising the issue of exhaustion, due by 5/1/14, as set out herein. Signed by District Judge Tom S. Lee on 4/2/14 (copy mailed to plaintiff at #K8115, EMCF/10641 Highway 80 West, Meridian, MS)(LWE)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
JAMES C. WINDING

PLAINTIFF

VS.

CIVIL ACTION NO. 3:13CV618TSL-JMR

JUDGE H. SULEMON OZERDEN, ET AL.

DEFENDANTS

CONSOLIDATED WITH
JAMES C. WINDING
VS.

PLAINTIFF
CIVIL ACTION NO. 3:13CV623TSL-JMR

JUDGE H. SULEYMON OZERDEN, ET AL.

DEFENDANTS

ORDER
This cause is before the court on the objection of plaintiff
James C. Winding to the report and recommendation of Magistrate
Judge John M. Roper entered on January 21, 2014, recommending that
the motion of Judges H. Sulemon Ozerden, Robert Walker and Keith
Ball to dismiss be granted and that the claims against the
remaining defendants be dismissed sua sponte for failure to state
a claim upon which relief may be granted.

By his filing,

denominated “motion to arrest report and recommendation,” Winding
purports to clarify his claims against defendants Tyrone Lewis,
Hinds County Sheriff and Ray Rice, alleged to be the Warden of
East Mississippi Correctional Facility and employee of defendant
Management Training Corporation (MTC) and seeks leave to add the
City of Raymond, Mississippi as a defendant in this matter.
Having considered plaintiff’s objection, the court concludes that

the report and recommendation should be adopted in part, modified
in part, and rejected in part as follows:
The report and recommendation is adopted to the extent that
it recommends that the motion of Judges Ozerden, Parker and Ball
to dismiss on the basis of judicial immunity should be granted.
The opinion is modified to reflect that any screening of the
remaining claims is undertaken pursuant to the court’s authority
under 28 U.S.C. § 1915A (permitting screening of prisoner
complaints against governmental entity or officer), and 42 U.S.C.
§ 1997e (authorizing court to sua sponte screen any action
challenging prison conditions under § 1983).

Regarding defendants

MTC and Rice, it is clear that Winding has failed to state a claim
upon which relief may be granted such that the report and
recommendation is adopted as to these defendants.1

Likewise, the

report and recommendation is adopted as it pertains to defendant
Raymond Jail.

This being said, however, as regards defendant

Lewis,2 taking into consideration the allegations in the original,
consolidated complaints, together with the clarification set out

1

The court notes that contrary to page 8 of the report
and recommendation, defendant Rice is not a state official but
rather, is an employee of defendant MTC. In any event, the court
agrees that the factual allegations set forth in the complaint do
not state a claim against him.
2

Again, contrary to page 8 of the report and
recommendation, defendant Lewis is not a state official but is a
representative of Hinds County, Mississippi, such that an official
capacity claim against him, is a claim against the County.
2

in Winding’s objection and giving the allegations a liberal
construction, the court concludes that Winding has stated claims
against Lewis in both his individual and individual capacities.3
See Lewis v. Pugh, 289 Fed. Appx. 767, 771-72 (5th Cir. Aug. 18,
2008) (where supervisor is not personally involved with acts
causing deprivation of constitutional rights, to impose individual
liability, plaintiff must show: “(1) the supervisor either failed
to supervise or train the subordinate official; (2) a causal link
exists between the failure to train or supervise and the violation
of his rights; and (3) the failure to train or supervise amounts
to deliberate indifference”) (internal citation and quotation
omitted); and Anderson v. Dallas Cty, 286 Fed. Appx. 850, 860 (5th
Cir. 2008)(explaining that to hold a governmental entity liable
under § 1983 for failure to protect, plaintiff must establish that
“(1) a county employee violated his clearly established
constitutional rights with subjective deliberate indifference and
(2) the violation resulted from a county policy or custom adopted
or maintained with objective deliberate indifference.”).
Accordingly, it follows the court rejects the report and
recommendation as it pertains to defendant Lewis.
Based on the foregoing, it is ordered that the report

3

The court notes that on page 8 of the report and
recommendation, plaintiff appears to have been held to a summary
judgment standard, rather than a 12(b)(6) standard.
3

and recommendation of United States Magistrate John M. Roper
entered on January 21, 2014, be, and the same is hereby, adopted
as the finding of this court to the extent as set forth above.
Accordingly, it is ordered that the motion of defendants Ozerden,
Walker and Ball is granted, that the claims against Rice, MTC and
Raymond Jail are dismissed and that plaintiff’s motions to amend
and to show cause are denied.

It is further ordered that

Winding’s motion to arrest report and recommendation is granted to
the extent that the court consider his attempts to clarify his
claims against Lewis, MTC and Rice and denied as to his request to
amend his complaint to add the City of Raymond as a defendant.
The City of Raymond is not responsible for the operation of the
county jail.
Finally, while the court has concluded that Winding has
stated a claim against Lewis, there appears to be an issue as to
whether Winding exhausted this claim prior to filing suit, see 42
U.S.C.

§ 1997e (requiring prisoner’s exhaustion of administrative

remedies prior to filing suit).

As Lewis raised this affirmative

defense via his answer, in an effort to conserve judicial
resources, the court will afford Lewis an opportunity to file a
motion for summary judgment raising the issue of exhaustion, see
Dillon v. Rogers, 596 F.3d 260, 272-73 (2010)(concluding that
exhaustion is threshold issue which is preferably addressed via
motion for summary judgment), or any other dispositive matter as
4

he deems appropriate.

Accordingly, Lewis’ motion for summary

judgment shall be filed on before May 1, 2014.4
SO ORDERED this 2nd day of April, 2014.

/s/Tom S. Lee
UNITED STATES DISTRICT JUDGE

4

In the event that Lewis declines this opportunity, the
court will enter an order returning the matter to the magistrate
judge for entry of a case management order.
5