Butler v. Lovewhich et al

Filing 42

OMNIBUS ORDER. The motion of Defendant Lovertich to dismiss or for summary judgment 33 is denied. Case set for bench trial on 11/28/18 at 1:30 p.m. Signed by Magistrate Judge F. Keith Ball on 4/20/18. (Copy mailed to Plaintiff at H.H.R.C.F., 23234 Hwy 12 E, Lexington, MS 39095.) (dfk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
JERMAINE TERRELL BUTLER
VS.

PLAINTIFF
CIVIL ACTION NO. 3:17cv365-FKB

DEPUTY SHERIFF TONY
ALEXANDER, et al.

DEFENDANTS

OMNIBUS ORDER
This is an action pursuant to 42 U.S.C. § 1983 brought by Jermaine Terrell
Butler, a pretrial detainee at Holmes-Humphreys County Regional Correctional Facility.
On March 27, 2018, an omnibus hearing was held at which the undersigned questioned
Plaintiff concerning his claims and addressed other case management issues. Having
considered Plaintiff’s testimony at the omnibus hearing, and having conferred with
counsel for Defendants, the Court finds and orders as follows.
Plaintiff’s complaint concerns his time as a detainee at the Hinds County
Detention Center. His claims, as clarified at the omnibus hearing, fall under the general
descriptions of sexual assault, excessive force, and unconstitutional conditions. He
alleges that in late October or early November of 2016, Warren Lovertich, a deputy at
the facility, grabbed Plaintiff’s penis and made a lewd comment to him. Plaintiff alleges
that on February 26, 2017, Deputy Tony Alexander used excessive force against him.
Finally, he brings a claim against Sheriff Victor Mason concerning the conditions in
which he was held in lockdown for approximately two months. According to Plaintiff,
these conditions included mold on the ceiling and walls, standing water on the floor, and
exposed live electrical wires.

Defendant Lovertich has filed a motion to dismiss or, in the alternative, for
summary judgement [33], arguing that Plaintiff has failed to exhaust his administrative
remedies as to the claim against him. Plaintiff has not responded to the motion. In
support of his motion, Defendant Lovertich has submitted the affidavit of Keneshia
Jones, the grievance officer at the facility, along with Plaintiff’s jail history report showing
the dates Plaintiff was held in the HCDC and copies of grievance forms and inmate
request forms filed by Plaintiff. [33-1]. In her affidavit Ms. Jones describes and
references the inmate grievance forms attached to the affidavit. As Ms. Jones points
out, none of these grievances or requests addresses the incident concerning Defendant
Lovertich. However, nowhere in her affidavit does Ms. Jones state that these
grievances constitute the only ones filed by Plaintiff during the relevant time period. Nor
is there anything to indicate that the attachments compose Plaintiff’s entire grievance
file. The Court concludes that Defendant Lovertich has failed to sustain his burden of
establishing that Plaintiff did not exhaust his administrative remedies as to his claim
against Defendant Lovertich.1 For this reason, the motion is denied.
This cause is set for a bench trial before the undersigned on November 28, 2018,
at 1:30 p.m.

1

The relevant portion of Ms. Jones’s affidavit states as follows:
Between the dates of May 2, 2017, and August 5, 2017, Jermaine Butler completed
Inmate Grievance Forms (Exhibit 2) and Inmate Request Forms (Exhibit 3) between
the dates of May 2, 2017, and August 4, 2017. All of the forms were received by me
as indicted [sic] by my dated stamp and initials on each form. Neither Mr. Butler’s
grievances nor his requests address matters in his complaint of sexual harassment
which he claims occurred on October and November of 2016 by Warren Lovertich.

[33-1] at 2.

2

Upon motion of Plaintiff, the Court will secure the presence at trial of up to three
incarcerated witnesses if the Court concludes that their testimony is relevant. Plaintiff
shall include in any such motion the prisoner identification number and correctional
facility in which the witness is housed and shall state in detail the nature of the proposed
testimony and explain how it is relevant to the factual issues of Plaintiff’s claim. Such
motions shall be filed no later than 30 days prior to trial.
Should any of Plaintiff’s witnesses be or become “free world,” Plaintiff shall be
responsible for securing their voluntary presence at the evidentiary hearing. Should a
“free world” witness refuse to appear voluntarily, Plaintiff shall adhere to the following
procedure to secure the witness’s presence. No later than 30 days prior to trial, Plaintiff
shall file a motion requesting that a subpoena be issued for the witness. The request
shall include the name and address of the witness and shall be accompanied by the
witness fee and expense payment required by Rule 45 of the Federal Rules of Civil
Procedure.
Discovery shall be limited to 25 interrogatories, 25 requests for production, and
25 requests for admission. All discovery shall be concluded by July 27, 2018. Any
dispositive motions shall be filed by August 28, 2018.
So ordered, this the 20th day of April, 2018.
/s/ F. Keith Ball
United States Magistrate Judge

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