Wedgeworth v. State of Mississippi et al

Filing 104

ORDER granting 94 Motion for Summary Judgment; granting 96 Motion for Summary Judgment. The following defendants are dismissed: Marshall Fisher, Pelicia Hall, Marshal Turner, Gabriel Walker, Jacqueline Banks, Katherine Blount, Jacqueline Lever ette, Dustin Wolfe, Kenneth Dixon, Anthony Beasley, Regina Reed, Jennifer Smith Roberts, Ella Scott, Leonel Pena, and Nathaniel Brown. Plaintiff is to show cause within 14 days as to why the unserved defendants and Defendant Denise Brewer should not be dismissed. (Copy mailed to Plaintiff.) Signed by Magistrate Judge F. Keith Ball on 2/28/20 (dfk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
WILEY WEDGEWORTH
VS.

PLAINTIFF
CIVIL ACTION NO. 3:17cv730-FKB

CHRISTOPHER B. EPPS, et
al.

DEFENDANTS

OPINION AND ORDER
Wiley Wedgeworth, a state prisoner, filed this action pursuant to 42 U.S.C. §
1983 bringing claims arising out of his incarceration at Wilkinson County Correctional
Facility (WCCF), South Mississippi Correctional Institution (SMCI), and Central
Mississippi Correctional Facility (CMCF). In his original complaint, he alleged that he
had been unlawfully denied parole eligibility. He later amended his complaint to include
a host of claims against a total of 65 defendants. Claims against 43 of the defendants
were subsequently dismissed. Presently before the Court are the motions for summary
judgment based upon qualified immunity filed by the following defendants: Marshall
Fisher, Pelicia Hall, Marshal Turner, Jacqueline Banks, Katherine Blount, Jacqueline
Leverette, Dustin Wolfe, Kenneth Dixon, Anthony Beasley, Regina Reed, Nathaniel
Brown, and Jennifer Smith Roberts [96]; and Gabriel Walker, Ella Scott, and Leonel
Pena [94]. The Court concludes that the motions should be granted, as Plaintiff has
failed to establish any constitutional violations by these defendants.

Claims against MTC Defendants
From March 21, 2014 until January 30, 2015, Wedgeworth was housed at
WCCF, a facility operated by Management and Training Corp. (MTC). He alleges that
an unidentified inmate floor walker at the prison harassed him, refused to give him his
food trays, put foreign substances in his food, and threatened him. The floor walker
also threw back at Plaintiff a burning shirt that Plaintiff had set on fire and thrown out of
his cell in order to get attention. Plaintiff alleges that he suffered burns as a result of
this latter incident. According to Plaintiff, he complained to Defendants Walker, Scott,
and Pena about the floor walker, but they did nothing.
Defendants Walker, Scott, and Pena, officials at WCCF, have moved to dismiss
on the basis of Wedgeworth’s failure to exhaust his administrative remedies. 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 his
available administrative remedies. Whitley v. Hunt, 158 F.3d 882 (5th Cir. 1998). This
exhaustion requirement applies 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, Walker, Scott, and Pena have submitted the affidavit of
Janice Williams, the Administrative Remedy Program Coordinator at WCCF, along with
relevant documents from Plaintiff’s file. [94-5]. The affidavit and accompanying
documents establish that Wedgeworth submitted a total of six grievances during his
2

time at WCCF. Only two of these, ARP Nos. WCCF- 14-599 and WCCF-15-63,
addressed in any way Plaintiff’s concerns for his safety. Neither mentioned the inmate
floorwalker, and neither mentioned or referenced any of the three movants.
Furthermore, Plaintiff failed to complete the two-step ARP process as to these
grievances. Because the undisputed evidence establishes that Plaintiff failed to meet
the exhaustion requirement as to his claims against the Walker, Scott, and Pena, these
claims will be dismissed.
Eligibility for Parole
Plaintiff alleges that MDOC officials Pelicia Hall and Marshall Fisher have
wrongfully denied him eligibility for parole. Plaintiff pleaded guilty in 2008 to burglary
and grand larceny. He was sentenced to ten years on each count, the sentences to be
served concurrently, with nine years suspended and one year to serve. However, in
March of 2010, his suspended sentences were revoked because of a new burglary
charge. As a result, he was sentenced to the original nine years from the 2008
sentences. On December 2, 2010, he pleaded guilty to the new burglary charge and
was sentenced as a habitual offender to two years, the sentence to be served
consecutively to the nine years he was already serving.
Plaintiff states that in May of 2010, he was issued a time computation with a
parole eligibility date. However, in early 2011, as a result of his 2010 conviction and
sentence as a habitual offender, he was reclassified as ineligible for parole. This
ineligibility was dictated by Miss. Code Ann. § 47-7-3, which provides that habitual

3

offenders are ineligible for parole.1 Plaintiff takes issue with this state of affairs,
claiming that he has now received an increase in punishment for past conduct and that
Miss. Code Ann. § 47-7-3 is an “ex post facto law” and therefore unconstitutional. [18-1]
at 12. This characterization of the statute and its effect on him is incorrect, as he can
point to no amendment to the statute that has applied to him retroactively. That portion
of the statute denying parole eligibility to habitual offenders was in place at the time of
his Wedgeworth’s earlier offenses; it merely became applicable to him once he
committed the 2010 crime and was sentenced as a habitual offender. The
Constitution’s prohibition on ex post facto laws is not applicable.
Cell Conditions at SMCI and Retaliation
Plaintiff complains of the conditions while housed in the maximum security unit at
SMCI. He alleges that in late July of 2015, he was placed in a cell that was without
running water for approximately five days, had no working air conditioner or fan, and
was dirty and infested with roaches. He also alleges that he was placed in these
conditions in retaliation for having filed appeals of rule violation reports (RVR’s).
Wedgeworth has failed to identify any particular defendant who was responsible for his
placement in the cell or the conditions there. However, he testified that he informed
Defendants Roberts, Beasley, Johnson, Dixon, Reed, and Rogers about the conditions.
He has also implicated Defendant Turner in his claims involving SMCI.

1

Miss. Code Ann. § 47-7-3 sets forth the conditions for parole eligibility. Section 47-7-3(1)(a) provides
that “[n]o prisoner convicted as a confirmed and habitual criminal under the provisions of Sections 99-1981 through 99-19-87 shall be eligible for parole.” Apparently Plaintiff’s habitual offender sentence was
pursuant to Miss. Code Ann. § 99-19-81, which provides that persons who have been twice previously
convicted of a felony for which they were sentenced to separate terms of one year or more shall be
sentenced to the maximum term.

4

The Eighth Amendment’s prohibition on cruel and unusual punishments requires
that prison officials “ensure that inmates receive adequate food, clothing, shelter, and
medical care, and . . . take reasonable measures to guarantee the safety of the
inmates.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (citations and internal quotation
marks omitted). However, “[t]he Constitution does not mandate comfortable prisons.”
Id. In order to establish an Eighth Amendment violation, an inmate must prove two
elements: First, he must show that the deprivation exposed him to “a substantial risk of
serious harm,” resulting “in the denial of the minimal civilized measure of life’s
necessities.” Id. at 834. Second, he must establish that the defendant possessed a
“sufficiently culpable state of mind,” id. at 834, in that he exhibited “deliberate
indifference” to the inmate’s serious needs, Estelle v. Gamble, 429 U.S. 97, 106. A
prison official displays deliberate indifference only if knows of and disregards a
“substantial risk of serious bodily harm.” Gobert, 463 F.3d 339, 346 (quoting Farmer,
511 U.S. at 847). While the conditions in Wedgeworth’s cell may have been unpleasant
and inconvenient, he has not shown that they were sufficiently serious or of sufficient
duration to constitute an extreme deprivation of life’s necessities or to pose a serious
risk to his health or safety. Furthermore, he has failed to establish that any defendant
was deliberately indifferent to his serious needs or to extreme deprivations.
Accordingly, Plaintiff’s Eighth Amendment claims are without merit.
To prevail on a retaliation claim, an inmate must produce either direct evidence
of motivation or “allege a chronology of events from which retaliation may plausibly be
inferred.” Bibbs v. Early, 541 F.3d 267, 272-73 (2008) (quoting Woods v. Smith, 60
5

F.3d 1161, 1166 (1995)). Wedgeworth has offered nothing more than his own belief
that his placement in the conditions he described was motivated by his appeal of RVR’s.
Neither has he identified any particular defendant who acted out of a retaliatory motive.
Thus, he has failed to establish a claim for retaliation.
Failure to Protect
Plaintiff’s failure-to-protect claim arises out of an incident at SMCI. On April 3,
2015, while Plaintiff was being escorted to the infirmary, an unidentified gang member
threw scalding water on him. Plaintiff received medical attention for his burns. He
complains that prison officials failed to protect him from this attack; he also alleges that
Defendants Reed and Blount knew that he had problems with certain gang members
but allowed him to be housed with them anyway.
The Eighth Amendment imposes upon prison officials a duty “to protect prisoners
from violence at the hands of other inmates.” Williams v. Hampton, 797 F.3d 276, 280
(5th Cir. 2015) (quoting Farmer v. Brennan, 511 U.S. 825, 833 (1994)). A prisoner
establishes a violation of his right to protection by proving that prison officials were
deliberately indifferent “to a substantial risk of serious harm.” Id. (quoting Farmer v.
Brennan, 511 U.S. at 834). Plaintiff has come forward with no evidence that any
defendant had knowledge of a serious risk that the gang member would attack Plaintiff.
Furthermore, his general complaints about being housed with gang members are
insufficient to support a claim of deliberate indifference. Wedgeworth’s failure-to-protect
claim is without merit.

6

Failure to Intervene
Plaintiff alleges that on May 12, 2015, Defendant Denise Brewer and Jimmie
Rogers, an unserved defendant, assaulted him while they, along with Dustin Wolfe,
were escorting him to the infirmary. He claims that Brewer kicked him in the face, head,
neck, shoulders, back, and spine and then jumped up and down on Plaintiff’s left knee.
[18-1] at 25-27. According to Plaintiff, Defendant Wolfe failed to intervene. Id.
In support of the motion, Wolfe has submitted Plaintiff’s medical records, which
contain additional details about the incident – details that Plaintiff has not disputed.
According to the medical records, Plaintiff was taken to the infirmary because he was
threatening suicide. [100-2] at 4. Once he arrived at the infirmary, Plaintiff explained
that the officers had assaulted him because he had a razor in his hand. [100-2] at 3.
Plaintiff further stated that he had threatened to head butt one of the officers if he did
not let go of Plaintiff’s hand and had then carried out the threat. Id.
An officer may be held liable where he is present at the scene of the use of
excessive force by another officer and fails to take reasonable actions to prevent harm
to the inmate if (1) he knows that another officer is using excessive force on an inmate,
(2) he has a reasonable opportunity to prevent harm to the inmate, and (3) he chooses
not to intervene. Kitchen v. Dallas Cty., Tex., 759 F.3d 468, 480 (5th Cir. 2014.).
Plaintiff’s sworn statements establish only that Wolfe was present at the incident and
that he failed to intervene; they do not show that Wolfe had a reasonable opportunity to
do so. Plaintiff’s evidence fails to establish a constitutional violation.

7

Rule Violation Reports
Plaintiff has asserted numerous claims regarding disciplinary proceedings
involving “fictitious” RVR’s brought against him. Plaintiff initially asserted claims based
upon a multitude RVR’s at several institutions. Most of these were previously dismissed
as either Heck-barred or untimely. [27] at 10-12, 13, 15-16. When questioned at the
omnibus hearing, he identified three defendants to whom these allegations are directed:
Defendants Banks, Leverette, and Roberts, all of whom are or were employed at SMCI.
[94-2] at 18, 19, 23. The only RVR which appears to involve any of these defendants is
RVR no. 01586260, which was issued by Leverette for assaulting an officer,
specifically, for “head-butting” Officer Rogers in the incident described above. [18-2] at
17. Plaintiff was found guilty on this RVR and received a loss of privileges as
punishment. Id. Plaintiff’s allegations as to this RVR fail to state a claim. That Plaintiff
believed the RVR’s to have cited untrue facts does not, in and of itself, raise a
constitutional issue. See Collins v. King, 743 F.2d 248, 253 (5th Cir. 1984).
Furthermore, because his punishment consisted of only a loss of privileges, no due
process concerns are implicated. See Madison v. Parker, 104 F.3d 765, 768 (5th Cir.
1997).
Excessive Force by Nathaniel Brown
Wedgeworth contends that on November 7, 2015, while he was housed at
CMCF, Officer Nathaniel Brown and an unidentified officer used excessive force against
him. According to Plaintiff, Brown slapped him several times and choked him because
Plaintiff had accidentally turned over a portable collect telephone. In support of his
8

motion, Brown has submitted a declaration under penalty of perjury. [96-3] at 1. Brown,
who is currently a chaplain at another correctional facility, states in the declaration that
although he was previously employed at CMCF, he did not begin working there until
February 1, 2016. Plaintiff does not rebut or even address this evidence in his response
to the motion. Because there is no genuine factual issue as to Brown’s participation in
the alleged November 7, 2015, assault, Brown is entitled to judgment as a matter of law.
Religion
As a close-custody inmate, Wedgeworth is ineligible to participate in prison work
programs. He argues that the prison’s refusal to allow him to work interferes with the
exercise of his religion, in that Christianity directs that he work and provide for himself.
This claim is without merit. Even assuming, for the sake of argument, that the denial of
employment opportunities in some way affects Plaintiff’s practice of his religion, that
denial is nevertheless lawful because it is reasonably related to the legitimate
penological interest of maintaining security. See Butts v. Martin, 877 F.3d 571, 584 (5th
Cir. 2017). Plaintiff has failed to establish a violation of his right to practice his religion.
Dismissals and Remaining Claims
For the reasons stated herein, the motions are granted and the claims against
the following defendants are dismissed with prejudice: Marshall Fisher, Pelicia Hall,
Marshal Turner, Gabriel Walker, Jaqueline Banks, Katherine Blount, Jacqueline
Leverette, Dustin Wolfe, Kenneth Dixon, Anthony Beasley, Regina Reed, Jennifer Smith
Roberts, Ella Scott, Leonel Pena, and Nathaniel Brown.

9

Six defendants remain unserved: Christopher Epps, Jimmie Rogers, Faytonia
Johnson, Cordaius George, Justin Hutcherson, and Joy Ross. Plaintiff is directed to
show cause, in writing, within 14 days of entry of this order, as to why these defendants
should not be dismissed pursuant to Fed. R. Civ. Proc. 4(m). Also remaining is an
excessive force claim against Denise Brewer, who has been served with process but
has never responded to the complaint. Plaintiff has never sought an entry of default or
a default judgment against Brewer. Plaintiff is directed to show cause, in writing, within
14 days of entry of this order, why this claim should not be dismissed for failure to
prosecute.
Finally, a suggestion of death was filed on September 13, 2019, as to Mark
Davis, against whom Plaintiff has asserted excessive force claims. Plaintiff failed to
seek substitution within the time period prescribed by Fed. R. Civ. Proc. 25.
Accordingly, these claims are hereby dismissed.
So ordered, this the 28th day of February, 2020.
/s/ F. Keith Ball_________________
United States Magistrate Judge

10