Bates v. Mississippi Department of Corrections et al
OMNIBUS ORDER granting 31 Motion to Amend/Correct; granting in part and denying in part 34 Motion for Summary Judgment; setting deadlines and trial and pretrial dates. Signed by Magistrate Judge F. Keith Ball on 3/7/18. (Copy mailed to Plaintiff at CMCF, 720 Bld.-B, Zone A, Bed 0009T, P. O. Box 88550, Pearl, MS 39288.) (dfk)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
CHARLES E. BATES
CIVIL ACTION NO. 3:17cv101-FKB
MISSISSIPPI, INC., et al.
Charles E. Bates is an inmate in the custody of the Mississippi Department of
Corrections (MDOC). He brought this action pursuant to 42 U.S.C. § 1983 alleging that
prison officials have repeatedly denied him medical care for heart attacks and cardiac
problems. A Spears hearing was held on November 29, 2017, at which the parties
have consented to jurisdiction by the undersigned. Having considered the Plaintiff’s
testimony at the omnibus hearing, and having considered Defendants’ motion for
summary judgment , the Court finds and orders as follows.
Plaintiff has alleged numerous denials of medical care at Central Mississippi
Medical Center (CMCF) and the Mississippi State Prison (MSP) beginning in October of
2009 and continuing through January of 2016. Plaintiff filed his complaint on February
14, 2017. Thus, those incidents occurring prior to February 14, 2014, are barred by the
statute of limitations and are therefore dismissed. See Walker v. Epps, 550 F.3d 407,
415 (5th Cir. 2008) (Mississippi=s three-year residual personal injury statute of limitations
applies to claims brought under ' 1983).
The remaining claims are as follows. Plaintiff alleges that in June of 2014, while
he was housed at CMCF, he suffered a heart attack after another inmate jumped on
him. Plaintiff states that he was not taken to the hospital for several hours. By the time
of the next incident, September of 2015, Plaintiff had been transferred to MSP. He
alleges that while at MSP, he sustained heart attacks in September of 2015, on October
6, 2015, and on October 10, 2015. According to Plaintiff, he received no treatment for
the heart attacks in September and on October 10, and treatment for the October 6
heart attack was delayed. Plaintiff also alleges that at some unspecified date while he
was at MSP, a physician denied him treatment for tachycardia. In October of 2015,
Plaintiff was transferred back to CMCF. He contends that after his return to CMCF, he
suffered heart attacks on October 24, 2015, January 6, 2016, and January 23, 2016,
and that treatment for these attacks was either refused or delayed. Finally, he contends
that sometime following the incident of January 6, 2016, MDOC officials refused to
approve an upgrade to his pacemaker, even though the upgrade was recommended by
a physician. Plaintiff contends that the delays and denials of treatment for his heart
attacks are the product of a custom by Centurion of Mississippi, Inc., the health care
contractor for the Mississippi Department of Corrections, of ignoring cardiac
Defendants have filed a motion for summary judgment  arguing that Plaintiff
has failed to exhaust his administrative remedies.1 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 available administrative remedies.
The motion was original filed by Defendants Marshall Fisher, Ron King, Brian Ladner, and Gloria Perry.
Subsequently, Defendants Centurion of Mississippi, Inc. and Alisha Oliphant filed a joinder in the motion
Whitley v. Hunt, 158 F.3d 882 (5th Cir. 1998). This exhaustion requirement Aapplies to
all inmate suits about prison life.@ Porter v. Nussle, 534 U.S. 516, 122 S. Ct. 983, 992
(2002). The requirement that claims be exhausted prior to the filing of a lawsuit is
mandatory and non-discretionary. Gonzalez v. Seal, 702 F.3d 785 (5th Cir. 2012).
In support of their motion, Defendants have submitted the affidavit of Richard
Pennington, Director of the Administrative Remedy Program for MDOC. [34-2] at 1.
The affidavit and accompanying documents establish the following. Plaintiff has filed
only two grievances concerning his medical care. On February 25, 2016, he submitted
a grievance concerning denial of medical care. The grievance was rejected and
returned because Plaintiff had not specified what relief he was seeking. Plaintiff
submitted another grievance on May 1, 2016, alleging denials of medical care from
2009 through January 23, 2016. The grievance was rejected as untimely. A third
grievance, filed on December 27, 2015, did not concern medical treatment.
Plaintiff does not dispute that he failed to exhaust his claims. Rather, he argues
that his claims should not be barred because administrative remedies were unavailable
to him, in that prison personnel refused to provide him with writing materials. See Ross
v. Blake, 136 S.Ct. 1850, 1855 (2016) (“A prisoner need not exhaust remedies if they
are not ‘available.’”) In support of his position, Plaintiff has submitted a sworn affidavit
in which he states that between October 2015 and June 2016, CMCF staff denied him
access to the writing supplies necessary for him to file grievances. [41-1] at 3.
Clearly, Plaintiff’s alleged inability to obtain writing materials at CMCF during this
period could have had no effect on his failure to exhaust claims that accrued more than
thirty days prior to his transfer to CMCF in October of 2015. Nor could it excuse his
failure to properly exhaust the grievances he did submit concerning medical issues.
Finally, his own filings indicate that at least by February 25, 2016, he was able to obtain
writing materials; thus, his failure to exhaust is not excused for any claims that accrued
after, or within 30 days prior to, that date For these reasons, all medical claims arising
during these time periods are dismissed because of Plaintiff’s failure to exhaust his
administrative remedies. Because the only allegation against Dr. Gloria Perry concerns
an incident for which he could have filed a grievance either on or after February 25,
2016 (the date by which he obviously had access to writing materials), Dr. Perry is
dismissed as a defendant.
Remaining are the claims for the alleged denials of medical care that occurred in
September and October of 2015. Plaintiff alleges that a “nurse” refused him treatment
for a heart attack on October 24, 2015; the Court will assume that this allegation may
refer to Nurse Alisha Oliphant and will not dismiss her at this time. Plaintiff has not
alleged any personal involvement on the part of any of the remaining individual
defendants. Accordingly, Defendants Marshall Fisher and Brian Ladner are hereby
This matter will go forward solely on Plaintiff’s claims against Defendants
Centurion and Oliphant arising out of the alleged denials of medical treatment in
September and October of 2015.
Also before the Court is Plaintiff’s motion to amend his complaint . The
proposed amended complaint appears to be substantially the same as his original
complaint, except that a few additional details have been included and the paragraphs
are numbered. The motion is hereby granted, and the proposed amended complaint is
deemed filed and substituted in the place of the original complaint.
This cause is set for a jury trial before the undersigned on October 31, 2018, at
9:00 a.m. A pretrial conference will be held on September 27, 2018, at 1:30.
Discovery shall be completed by June 8, 2018. Any dispositive motions shall be
filed by June 22, 2018.
So ordered, this the 7th day of March, 2018,
s/ F. Keith Ball
United States Magistrate Judge
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