Winding v. Brusher et al

Filing 81

ORDER denying 57 Motion for Summary Judgment; granting 58 Motion for Summary Judgment; denying 61 Motion for Summary Judgment. A separate judgment will be entered. Signed by Magistrate Judge F. Keith Ball on 2/3/15 (dfk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
JAMES C. WINDING
VS.

PLAINTIFF
CIVIL ACTION NO. 3:14cv576-FKB

J. BRUSHER, et al.

DEFENDANTS
OPINION AND ORDER

This action was brought pursuant to 42 U.S.C. § 1983 by James C. Winding, a
state prisoner. Presently before the Court are the parties’ cross motions for summary
judgment. For the reasons stated herein, the Court concludes that Plaintiff’s motions
should be denied, Defendants’ motion granted, and this matter dismissed.
On July 19, 2014, inmate Cervante Thomas assaulted Plaintiff with a lock in a
sock. Thereafter, Plaintiff filed this action and a motion for emergency injunctive relief,
alleging that Thomas was threatening to attack him again and was still housed in the
same unit as Plaintiff. On August 18, 2014, a hearing was held for consideration of
Plaintiff’s motion to proceed in forma pauperis and other matters. After the hearing, the
undersigned entered a report and recommendation recommending that some of Plaintiff’s
claims be dismissed. Subsequently, prior to the adoption of the report and
recommendation by the district judge, the parties consented to jurisdiction by the
undersigned. The reasons stated in the report and recommendation for dismissal of
Plaintiff’s claims for failure to protect him from the attack of July 19, 2014, and for denial of
medical care are incorporated herein, and those claims are hereby dismissed.
Remaining is Plaintiff’s claim that Defendants are not protecting him from a second
attack by Thomas. At the August 18, 2014 hearing, the housing situation was discussed

with the parties in an attempt to effect a resolution. Subsequently, Defendants notified the
Court that Thomas’s custody classification had been changed and that he had been
moved to a different unit.
In their motion for summary judgment, Defendants have provided evidence that
Winding and Thomas remain housed in separate units. Plaintiff has offered no evidence
to the contrary. Thus, Plaintiff’s claim for injunctive relief to prevent a future attack is now
moot. Furthermore, his own motion for summary judgment fails to provide any basis for
relief.
Accordingly, Defendants’ motion is granted, Plaintiff’s motions are denied, and this
matter is dismissed. A separate judgment will be entered.
So ordered and adjudged, this the 3rd day of February, 2015.
/s/ F. Keith Ball
SUNITED STATES MAGISTRATE JUDGE

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