Keys v. Mingo et al

Filing 11

OMNIBUS ORDER RE: hearing conducted 4/16/2014. Plaintiff is directed to file a written response to Defendants' Motion to Dismiss 5 on or before 5/19/2014; Defendants to reply by 6/2/2014. Plaintiff is warned that his case will be dismissed if he fails to file a response by 5/19/2014. Signed by Magistrate Judge Linda R. Anderson on 4/23/2014. (ACF)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
DERRICK KEYS

PLAINTIFF

VS.

CIVIL ACTION NO. 3:13cv622-HTW-LRA

WARDEN DEREK MINGO, ET AL

DEFENDANTS

OMNIBUS ORDER
The parties appeared and participated in an omnibus hearing before the
undersigned United States Magistrate Judge on April 16, 2014, at the Jackson Federal
Courthouse in Jackson, Mississippi. Derrick Keys (“Plaintiff” or “Keys”) appeared pro
se; Defendants were represented by attorney Robert O. Allen.
The hearing was conducted under the authority of Spears v. McCotter, 766 F.2d
179 (5th Cir. 1985), and its progeny. It functioned as a scheduling/case management
conference, a discovery conference, a Spears hearing, and as a pretrial conference. After
due consideration of the issues involved in this case and any requests for discovery, the
Court does hereby find and order as follows:
1.

JURISDICTION AND SUMMARY OF CLAIMS

Jurisdiction of this case is based upon 42 U.S.C. § 1983. Plaintiff explained his
claims under oath to the Court. He is a convicted inmate now housed at the South
Mississippi Correctional Institute [SMCI] in Leakesville, Mississippi, in the custody of
the Mississippi Department of Corrections [MDOC]. He was previously housed in the
Marion Walthall Correctional Facility [MWCF] in Marion County, Mississippi. He filed

this lawsuit in the Circuit Court of Hinds County, and it was removed by Defendants to
this Court.
According to Plaintiff, on or about March 26, 2013, while housed in MWCF, he
and eight other inmates were accused of assaulting another inmate, Arthur Easley. He
was given a Rules Violation Report [RVR] and found guilty of the charges. The charges
were dismissed as to two other inmates, and the remaining were found guilty. He was in
the zone when the assault occurred, and Plaintiff contends that the security camera should
provide evidence of who actually assaulted the inmate. Plaintiff claims he did not
participate in the assault. Plaintiff was given 60 days of restricted privileges. He
contends that he also lost his custody status for a year due to the RVR and was unable to
accumulate good time credits during this period. He had been B custody prior to the
RVR and was changed to C custody thereafter. He was also moved for no reason after
the assault. According to Plaintiff, he had paid $49 to be moved from SMCI to MWCF.
Plaintiff contends that an Officer Pittman wrote his RVR, and Defendant Major
Edna McGowan was the unit administrator who approved the RVR. Plaintiff had a
disciplinary hearing and requested to be allowed to view the camera footage of the
assault; his request was denied. Defendant Lt. Joy Ross was the hearing officer. She
convicted him without allowing him to review the camera footage and without reviewing
it herself. Plaintiff appealed the RVR conviction, but Defendant Warden Mingo affirmed
the conviction.

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Plaintiff asked that his conviction for the RVR be expunged from his prison
record and that he be awarded $45,000 in compensatory damages and $55,000 in punitive
damages. The only Defendants who have been served with process are Warden Derek
Mingo and Major Edna McGowan.

Lt. Joy Ross of SMCI and “MDOC Deputy

Commissioner of Institutions” have not been served.
The Court refers to the initial Complaint, as augmented by Plaintiff’s testimony at
the omnibus hearing, for other details of the claims against Defendants.
2.

DISCOVERY ISSUES and PENDING MOTIONS

Defendants Warden Derek Mingo and Major Edna McGowan filed a Motion to
Dismiss [5] on December 4, 2013, but Plaintiff has not filed a written response to the
motion. Before additional proceedings may continue, it will be necessary for the Court to
enter a ruling on that motion. Plaintiff shall be given an opportunity to file a written
response to the motion, and Defendants may file a reply. Plaintiff is advised that the
motion shall be granted unless he files a pleading responding to Defendants’ legal
contentions.
The Court notes that two other inmates who were allegedly involved in the assault
have also filed Complaints regarding the RVRs they received in connection with the
incident. These include Garrod Walker v. MWCF Warden Mingo, et al, 3:13cv524-JMR,
and Richard Kennedy v. MWCF Warden Mingo, et al, 3:13cv525-JMR (closed by
Judgment in favor of Defendants on March 25, 2014).

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3.

TRIAL WITNESSES

If a trial is conducted, the Court will transport up to three inmate witnesses to give
testimony on behalf of Plaintiff. Plaintiff may submit his witness list any time up to 30
days prior to any trial set in this cause.
Plaintiff is advised that he may call any free world witnesses if a trial is conducted
in this cause. However, it will be necessary for Plaintiff to obtain their voluntary
appearance in this case. Or, upon the prepayment of witness fees, plus mileage costs,
along with the complete address of where the witness may be found, Plaintiff may request
the Court to cause a subpoena to be issued for a free world witness. The request should
be made at least 30 days prior to trial, and the Court will direct that the United States
Marshal’s Service serve any such subpoena.
4.

PRETRIAL CONFERENCE, PRETRIAL ORDER, AND TRIAL
SETTING

This conference shall stand in lieu of a pretrial conference, and this Order shall
stand in lieu of a pretrial order. The parties have consented to the jurisdiction of the
Magistrate Judge. Plaintiff has been mailed a consent form and shall execute and return
same for execution by Defendants. The consent will then be presented to the District
Judge for consideration.
IT IS, THEREFORE, ORDERED:
1.

On or before May 19, 2014, Plaintiff is directed to file a written response to
Defendants’ Motion to Dismiss [5], setting forth the reasons his case should

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not be dismissed under the law set forth in the motion. Plaintiff is advised
that his Complaint will be dismissed if he fails to file a response prior to
May 19, 2014.
2.

On or before June 2, 2014, Defendants may file a reply to Plaintiff’s
response.

3.

Any other motions should be filed on or before July 14, 2014.

SO ORDERED, this the 23rd day of April 2014.

/s/ Linda R. Anderson
UNITED STATES MAGISTRATE JUDGE

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