Ferguson v. Ellis et al

Filing 48

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 42 Motion to Compel, filed by James Ferguson, 29 Motion for Preliminary Injunction, Motion for TRO filed by James Ferguson, 33 Motion for Summary Judgment filed by James Ferguson, 46 Repo rt and Recommendations,, 30 Motion for Summary Judgment filed by Tony Donald, Richard Cooney, Frank Shaw, Michael Rice, Alma Wren, 39 Motion for Summary Judgment filed by Bradley Ellis, Kelesha Williams Signed by Chief District Judge Daniel P. Jordan, III on 2/25/19 (MGB) (Copy mailed to Plaintiff)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
JAMES FERGUSON
V.

PLAINTIFF
CIVIL ACTION NO. 3:17-CV-165-DPJ-FKB

BRADLEY ELLIS, ET AL.

DEFENDANTS
ORDER

This § 1983 action is before the Court on the Report and Recommendation [46] of United
States Magistrate Judge F. Keith Ball, recommending that the Court grant Defendants Frank
Shaw, Richard Cooney, Alma Wren, Tony Donald, and Michael Rice’s Motion for Summary
Judgment [30], grant Defendants Bradley Ellis and Kelesha Williams’s Motion for Summary
Judgment [39], deny pro se Plaintiff James Ferguson’s Motion for Summary Judgment [33] and
Amended Motion for Preliminary Injunction and Temporary Restraining Order [29], and find as
moot Ferguson’s Motion to Compel Discovery [42]. Ferguson objected to two of Judge Ball’s
recommendations. R. & R. Obj. [47]. For the reasons that follow, the Court adopts the Report
and Recommendation [46].
I.

Facts and Procedural History
While a state prisoner at the East Mississippi Correctional Facility, Ferguson alleges that

Defendants Ellis and Williams failed to properly restrain an inmate who splashed him in the face
with urine. Specifically, Ferguson says the officers allowed the inmate to carry a milk carton
filled with urine from his cell to the shower, and that the inmate doused Ferguson’s face with the
urine as he passed by his cell door. Ferguson also contends that Ellis and Williams continued to
come by his cell to intimidate him after this incident and alleges that the officers’ actions
violated the Eighth Amendment.

After this incident, Ferguson filed an Administrative Remedy Program (“ARP”)
grievance dated July 23, 2016, requesting to be moved away from Ellis and Williams. Having
received no update on the status of his grievance, Ferguson re-submitted his ARP grievance on
October 17, 2016. On November 8, 2016, Defendant Donald turned over the original ARP
grievance to Investigations. On December 15, 2016, Defendant Shaw wrote Ferguson
acknowledging there was evidence to substantiate his ARP grievance, but Shaw did not move
him away from Ellis and Williams. Ferguson alleges that Defendants Shaw, Cooney, Wren,
Donald, and Rice were grossly negligent in supervising Ellis and Williams and in their handling
of his ARP grievance. He further alleges that the Mississippi Department of Corrections’
(“MDOC”) ARP grievance process is unconstitutional because it imposes a 30-day deadline on
inmates to file a grievance after an incident but does not impose any such deadlines for MDOC
officials to respond to a grievance.
II.

Standard
Summary judgment is warranted under Federal Rule of Civil Procedure 56(a) when

evidence reveals no genuine dispute regarding any material fact and that the moving party is
entitled to judgment as a matter of law. The rule “mandates the entry of summary judgment,
after adequate time for discovery and upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and on which that
party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The party moving for summary judgment “bears the initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of [the record] which it
believes demonstrate the absence of a genuine issue of material fact.” Id. at 323. The
nonmoving party must then “go beyond the pleadings” and “designate ‘specific facts showing

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that there is a genuine issue for trial.’” Id. at 324 (citation omitted). In reviewing the evidence,
factual controversies are to be resolved in favor of the nonmovant, “but only when . . . both
parties have submitted evidence of contradictory facts.” Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir. 1994) (en banc). When such contradictory facts exist, the court may “not make
credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 150 (2000). Conclusory allegations, speculation, unsubstantiated assertions, and
legalistic arguments have never constituted an adequate substitute for specific facts showing a
genuine issue for trial. TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir.
2002); Little, 37 F.3d at 1075; SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993).
III.

Analysis
The Court will first examine Judge Ball’s recommendation to deny Ferguson’s requested

injunction and then turn to his recommendations for the parties’ summary-judgment motions.
A.

Ferguson’s Amended Motion for Preliminary Injunction and Temporary
Restraining Order [29]

First, Judge Ball recommends rejecting Ferguson’s Amended Motion for Preliminary
Injunction and Temporary Restraining Order [29], in which Ferguson seeks an order requiring
MDOC to change its ARP grievance process. R. & R. [46] at 4. Judge Ball found that Dempsey
and MDOC are not named parties to this action and have not otherwise received notice as
required by Rule 65(a)(1); that Ferguson failed to show immediate or irreparable harm as
required by Rule 65(b)(1); that the requested injunctive relief does not relate to the damages he
seeks, i.e., it fails to maintain the status quo; and that he cannot show a substantial likelihood of
success on the merits. Id. at 4–5.

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In his objection, Ferguson does not address his Rule 65 deficiencies or the status quo
issue. Instead, he addresses the merits of his claim that the MDOC ARP grievance process is
unconstitutional. R. & R. Obj. [47] at 2.
Even if Ferguson’s objection held water, which it does not, the Court agrees with Judge
Ball that Ferguson has failed to show that MDOC and Dempsey are parties to this case or that
they received notice of this motion. See Fed. R. Civ. P. 65(a)(1) (“The Court may issue
preliminary injunction only on notice to the adverse party.”). The Court further agrees with
Judge Ball that Ferguson failed to show the immediate or irreparable harm necessary to receive
temporary injunctive relief without notice to the adverse parties. See Fed. R. Civ. P. 65(a)(1)
(“The court may issue a temporary restraining order without . . . notice . . . only if . . . immediate
and irreparable injury, loss, or damage will result to the movant before the adverse party can be
heard in opposition.”) The Court therefore adopts Judge Ball’s recommendation to deny
Ferguson’s injunctive-relief motion.
B.

Defendants Shaw, Cooney, Wren, Donald, and Rice’s Motion for
Summary Judgment [30]

Next, Judge Ball concludes that “[b]ecause Ferguson never exhausted his administrative
remedies with regard to his claims against Shaw, Cooney, Wren, Donald, and Rice, the PLRA
and applicable case law require those claims be dismissed.” R. & R. [46] at 8. As such, Judge
Ball recommends that Court grant Shaw, Conney, Wren, Donald, and Rice’s summary-judgment
motion [30]. Ferguson offers no objection to this recommendation, which is nevertheless
correct. His claims against these Defendants are therefore dismissed.
C.

Defendants Ellis and Williams’s Motion for Summary Judgment [39]

Finally, Judge Ball concluds, from Ferguson’s own testimony, that Ellis and Williams did
not “ha[ve] any reason to believe [the inmate] posed a substantial risk of causing him serious
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harm” and that his face, drenched with another inmate’s urine, “while certainly unpleasant . . .
[did] not pose a substantial risk of serious harm.”1 R. & R. [46] at 9. As such, Judge Ball
recommends that the Court grant Ellis and Williams’s summary-judgment motion [39], deny
Ferguson’s motion for summary judgment [33], and find Ferguson’s discovery motion [42]
moot.
In his objection, Ferguson says Judge Ball “ is mistake [sic] the issue” and seems to argue
that Ellis and Williams failed to handcuff the subject inmate which “allowed [him] to carry the
milk carton full of urine.” R. & R. Obj. [47] at 5. Ferguson contends the failure to handcuff the
inmate violated MDOC policy, and Ellis and Williams therefore violated the Eighth Amendment.
Id. at 5–6. But according to the Fifth Circuit, “violations of prison rules do not alone rise to the
level of constitutional violations and, therefore, such claims are not actionable under [42 U.S.C.]
§ 1983.” Scheidel v. Sec’y of Pub. Safety & Corr., 561 F. App’x 426, 427 (5th Cir. 2014) (citing
Hernandez v. Estelle, 788 F.2d 1154, 1158 (5th Cir. 1986)). And the Court nevertheless agrees
with Judge Ball that Ferguson’s allegations fail to show “conditions posing a substantial risk of
serious harm and that [Ellis and Williams] were deliberately indifferent to [his] need for
protection.” Neals v. Norwood, 59 F.3d 530, 533 (5th Cir. 1995). Ferguson’s claims against
Ellis and Williams are therefore dismissed.

1

Judge Ball held a Spears hearing on June 27, 2018. See Spears v. McCotter, 766 F.2d 179 (5th
Cir. 1985). Ferguson testified that “he had no altercations or conflicts with [the inmate] prior to
May 28, 2016, nor had he reported any to the EMCF staff . . . received no physical injuries,
though the incident made him afraid . . . [and] saw a doctor approximately ten days later to
confirm that he was not injured.” R. & R. [46] at 3–4 (citing June 27, 2018 Hr’g Tr. [39-1] at
12–13).
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IV.

Conclusion
Accordingly, the Court adopts the Report and Recommendation [46] of the magistrate

judge. Defendants’ motions for summary judgment [30, 39] are granted, and Ferguson’s Motion
for Summary Judgment [33] and Amended Motion for Preliminary Injunction and Temporary
Restraining Order [29] are denied. Ferguson’s Motion to Compel Discovery [42] is found moot.
This action is dismissed with prejudice. A separate judgment will be entered in accordance with
Federal Rule of Civil Procedure 58.
SO ORDERED AND ADJUDGED this the 25th day of February, 2019.
s/ Daniel P. Jordan III
CHIEF UNITED STATES DISTRICT JUDGE

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