Alford v. Pike County Detention Center et al

Filing 107

ORDER denying as moot 89 Motion for Default Judgment; denying as moot 89 Motion for Summary Judgment; denying 90 Motion for Partial Summary Judgment; granting 92 Motion to Dismiss; adopting Report and Recommendations re 97 Report and Recommendations. Signed by Honorable David C. Bramlette, III on 6/1/2017 (ECW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
HENRY HINTON, JR.

PLAINTIFF

VS.

CIVIL ACTION NO. 5:15-cv-77(DCB)(MTP)

PIKE COUNTY, ET AL.

DEFENDANTS

ORDER ADOPTING REPORT AND RECOMMENDATION
This cause is before the Court on the plaintiff Henry Hinton,
Jr.’s Motion for Partial Default Judgment or Summary Judgment
(docket entry 89), Motion for Partial Summary Judgment (docket
entry 90), and Motion to Dismiss Prior Motion (docket entry 92),
and

on

Magistrate

Judge

Michael

T.

Parker’s

Report

and

Recommendation (“R&R”) regarding same (docket entry 97), and the
plaintiff’s Objections thereto (docket entry 102).

The

Court has

carefully considered the plaintiff’s motions and the Magistrate
Judge’s R&R, as well as the plaintiff’s objections to the R&R, and
finds as follows:
The plaintiff’s Motion for Partial Default Judgment or Summary
Judgment (docket entry 89) seeks a judgment against defendants
Sheriff Mark Sheppard, Captain Glen Green, and Lieutenant Smith
based on their failure to deny certain allegations asserted by the
plaintiff.

However, on March 13, 2017, the plaintiff filed his

Motion to Dismiss Prior Motion (docket entry 92), requesting that
the Court allow him to withdraw his Motion for Partial Default
Judgment or Summary Judgment.

The Court shall therefore grant the

Motion to Dismiss Prior Motion, and shall deny the Motion for
Partial Default Judgment or Summary Judgment as moot.
The plaintiff’s lawsuit arises from events which took place
while he was incarcerated at the Pike County Jail.

According to

the plaintiff, he entered the jail as a pretrial detainee on June
30, 2014, and was housed in the jail as a pretrial detainee until
October 6, 2015, when he was convicted of multiple felonies,
including possession of a controlled substance with intent to
distribute.

In his complaint and as clarified at his Spears1

hearing, the plaintiff alleges, inter alia, that on July 9, 2015,
Inmate Harris began throwing water in the plaintiff’s cell because
the plaintiff’s complaints about the amount of salt in the food had
caused inmates to be served food that was not seasoned. Harris was
removed from the housing zone, but because officers did not file a
report about the incident, Harris was eventually returned to the
zone.

On July 21, 2015, five inmates, including Harris, attacked

the plaintiff, which resulted in the plaintiff being stabbed under
the eye. The plaintiff alleges that he was surprised by the attack
and did not know an attack was imminent.

According to the

plaintiff, he could not call for help because the call box in his
cell was not functioning at the time of the attack.

The plaintiff

also asserts that an officer could have seen the incident from the
security tower, but no one was manning the security tower at the

1

Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).

2

time of the attack.

Additionally, the plaintiff asserts that

officers do not constantly monitor all of the twenty-two cameras in
the

jail.

The

plaintiff

claims

that

Sheriff

Sheppard

is

responsible for making sure the call boxes are in proper working
order and that the security tower is manned.

In addition, the

plaintiff asserts claims regarding denial of access to the court
and the conditions of his confinement.

See Omnibus Order (docket

entry 65).
On March 13, 2017, the plaintiff filed his Motion for Partial
Summary Judgment (docket entry 90), arguing that he has established
all of the elements of his failure-to-protect claim and is entitled
to summary judgment against defendants Sheriff Mark Sheppard,
Captain Glenn Green, and Lieutenant Smith.
respond

to

the

motion.

However,

the

The defendants did not
Court

does

not

grant

dispositive motions as unopposed, but must examine their merits.
See L.U.Civ.R. 7(b)(3)(E); Hetzel v. Bethlehem Steel Corp., 50 F.3d
360, 362 (5th Cir. 1995).
The Court may grant summary judgment only if, viewing the
facts

in

a

light

most

favorable

to

non-movant,

the

movant

demonstrates that there is no genuine issue of material fact and
that he is entitled to judgment as a matter of law.
Smith, 60 F.3d 1161, 1164 (5th Cir. 1995).

Woods v.

If the movant fails to

discharge the burden of showing the absence of a genuine issue
concerning any material fact, summary judgment must be denied.

3

John v. Louisiana, 757 F.2d 698, 708 (5th Cir. 1985). The existence
of an issue of material fact is a question of law that the Court
must decide, and in making that decision, it must “draw inferences
most favorable to the party opposing the motion, and take care that
no party will be improperly deprived of a trial of disputed factual
issues.”

Id. at 712.

However, “[c]onclusional allegations and

denials,

speculation,

improbable

assertions,

and

legalistic

inferences,

argumentation

do

unsubstantiated
not

adequately

substitute for specific facts showing a genuine issue for trial.”
Oliver v. Scott, 276 F.3d 736, 744 (5th Cir. 2002).
Magistrate Judge Parker recommends that the plaintiff’s Motion
for Partial Summary Judgment (docket entry 90) should be denied as
untimely.

Magistrate Judge Parker entered an Omnibus Order on

November 3, 2016, which set February 15, 2017, as the dispositive
motions deadline.

On March 13, 2017 (26 days after the deadline)

the plaintiff filed his Motion for Partial Summary Judgment.

The

trial court is afforded broad discretion to preserve the integrity
and purpose of the pretrial order.
F.2d 787, 790 (5th Cir. 1990).

Geiserman v. MacDonald, 893

Case deadlines can be modified only

by order of the Court upon a showing of good cause.

See Fed. R.

Civ. P. 16(b)(4).
The good cause standard “require[s] the movant to show that
the deadline cannot be met despite the diligence of the party
needing the extension.”

Puig v. Citibank, N.A., 514 F.App’x 483,

4

487-88

(5th

Cir.

2013)(citation

and

quotation

omitted).

In

determining whether the movant has met his burden under Rule
16(b)(4),

the

explanation

Court

for

his

considers
failure

four
to

factors:

meet

the

(1)

the

deadline,

party’s
(2)

the

importance of the requested relief, (3) potential prejudice in
granting the relief, and (4) the availability of a continuance to
cure such prejudice.

S&W Enters., LLC v. SouthTrust Bank of Ala.,

N.A., 315 F.3d 533, 535 (5th Cir. 2003); Geiserman, 893 F.2d at 791.
Prior to filing his motion, the plaintiff did not request or
obtain the Court’s consent to modify the scheduling order, and the
Magistrate Judge did not find good cause to modify the scheduling
order.

The Court shall therefore deny the plaintiff’s Motion for

Partial Summary Judgment (docket entry 90) as untimely.

See

Lamorak Ins. Co. v. Huntington Ingalls, Inc., 2016 WL 5678559, at
*3 (E.D. La. Oct. 3, 2016); Estate of Boles v. National Heritage
Realty, Inc., 2010 WL 11492174 (N.D. Miss. June 18, 2010).
The Court also finds that the plaintiff has failed to meet his
burden of demonstrating that there is no genuine issue of material
fact and that he is entitled to judgment as a matter of law.

The

Due Process Clause of the Fourteenth Amendment protects pretrial
detainees from violence committed by other prisoners.
City of Corinth, 74 F.3d 633, 639 (5th Cir. 1999).

See Hare v.

However, “[i]t

is not ... every injury suffered by one prisoner at the hands of
another that translates into constitutional liability for prison

5

officials responsible for the victim’s safety.” Farmer v. Brennan,
511 U.S. 825, 832 (1994). To establish a failure-to-protect claim,
a prisoner must show that “he was incarcerated under conditions
posing a substantial risk of serious harm and that prison officials
were deliberately indifferent to his need for protection.”

Jones

v. Greninger, 188 F.3d 322, 326 (5th Cir. 1999).
Deliberate indifference consists of the official being aware
of both the “facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw the
inference.” Farmer, 511 U.S. at 837. Deliberate indifference “‘is
an extremely high standard to meet.’” Gobert v. Caldwell, 463 F.3d
339, 346 (5th Cir. 2006)(quoting Domino v. Texas Dep’t. of Criminal
Justice, 239 F.3d 752, 756 (5th Cir. 2001)).

Negligent failure to

protect an inmate does not rise to the level of a constitutional
violation. Oliver v. Collins, 914 F.2d 56, 60 (5th Cir. 1990). The
test for establishing deliberate indifference is “one of subjective
recklessness as used in the criminal law.”

Farmer, 511 U.S. at

837.
In his Motion for Partial Summary Judgment (docket entry 90),
the plaintiff again alleges that the security tower was not manned,
the call box in his cell was not functioning, and the cameras in
the jail were not constantly monitored.

The plaintiff submits

incident reports from the day of the assault and argues that the
reports prove the tower was unmanned because an officer from the

6

control room, not the tower, called for assistance after noticing
a disturbance. In addition, the plaintiff alleges that he was
housed in a zone with violent offenders.

However, the plaintiff

has not established that any defendant knew there was a substantial
risk

of

serious

harm

to

the

plaintiff

and

was

deliberately

indifferent to that risk.
The plaintiff also alleges that nearly two weeks prior to the
attack, one of his attackers, Inmate Harris, threw water into his
cell.

This allegation, without more, does not establish that any

defendant knew that Inmate Harris, or any other inmate, posed a
substantial risk to the plaintiff. In fact, at the Spears hearing,
the plaintiff conceded that he was surprised by the attack and did
not know an attack was imminent.

Furthermore, the plaintiff has

not presented any evidence establishing that his housing assignment
posed a substantial risk of serious harm.

The proof presented by

the plaintiff, at best, supports a claim of negligent failure to
protect, which does not rise to the level of a constitutional
violation. See Williams v. Keith, 2015 WL 4661584, at *2 (W.D. La.
Aug. 5, 2015); Hailey v. Haggard, 2013 WL 655667, at *4 (S.D. Tex.
Feb. 20, 2013); Brewer v. Dallas Cty. Sheriff’s Dep’t., 2001 WL
194065, at *3 (N.D. Tex. Feb. 22, 2001).
The plaintiff also argues that defendants Sheriff Sheppard,
Captain

Green,

and

Lieutenant

Smith

have

admitted

certain

allegations and that these admissions support summary judgment in

7

his favor.

On April 8, 2016, the plaintiff filed a Motion to Amend

(docket entry 42), seeking to add Sheriff Sheppard, Captain Green,
and Lieutenant Smith as defendants.
granted

the

Motion

to

Amend.

See

Magistrate Judge Parker
Order

(docket

entry

43).

However, the plaintiff did not file an amended complaint. Instead,
Magistrate Judge Parker construed the plaintiff’s complaint as
amended by the allegations asserted in the Motion to Amend.

On

November 7, 2016, the defendants filed their Answer, in which they
denied the allegations asserted in the plaintiff’s Complaint, but
did not specifically address the allegations asserted in the Motion
to Amend. The plaintiff argues that because the defendants did not
specifically deny the allegations set forth in his Motion to Amend
(specifically paragraphs 6, 7, and 8), the defendants have admitted
these allegations.
Federal Rule of Civil Procedure 8(b)(6) states that “[a]n
allegation — other than one relating to the amount of damages — is
admitted if a responsive pleading is required and the allegation is
not denied.”

Rule 8(b)(6), like all Federal Rules of Civil

Procedure, is to be “construed, administered, and employed by the
court and the parties to secure the just, speedy, and inexpensive
determination of every action and proceeding.”

Fed.R.Civ.P. 1.

“Pleadings must be construed so as to do justice.”
8(e).

Fed.R.Civ.P.

They “are not to be treated as a game of skill in which one

misstep by counsel may be decisive of the outcome.”

8

Trotter v.

Jack

Anderson

Enters.,

Inc.,

818

F.2d

431,

436

(5th

Cir.

1987)(finding that a failure to deny allegation had no effect on
opponent’s rights because he had notice that the matter was to be
litigated).
Magistrate Judge Parker recommends that, considering the
record, the Court should not deem the allegations asserted in the
Motion to Amend to be admitted by the defendants. The pleadings in
this action involving a pro se prisoner are atypical, insofar as
the

plaintiff

Magistrate

did

Judge

not

Parker

file

an

amended

treated

the

complaint.

plaintiff’s

However,

pleadings

as

amended because the plaintiff repeated the allegations made in his
Motion to Amend at his Spears hearing, as reflected in the Omnibus
Order (docket entry 65).

The defendants denied the allegations in

the plaintiff’s original complaint, and are plainly contesting all
of the plaintiff’s allegations.

Thus, the allegations should not

be deemed admitted, and the Court will afford the defendants an
opportunity to admit or deny these allegations.2
As the movant, the plaintiff has the burden to establish that
there are no genuine issues of material fact and that he is

2

Even if the allegations were deemed admitted, they would not establish
that the defendants were deliberately indifferent to a substantial risk of
serious harm. The allegations relevant to the plaintiff’s failure-to-protect
claim are that the defendants failed to hire sufficient staff to man the
security tower. This allegation, without more, does not rise to the level of
a constitutional violation. See Morgan v. Cabana, 2009 WL 1066294 (S.D. Miss.
Apr. 21, 2009); Jones v. Allen Parish Corr. Center, 2008 WL 762077, *3 (Mar.
20, 2008)(finding that the fact that a prison was understaffed does not
establish a plaintiff’s failure-to-protect claim).

9

entitled to judgment as a matter of law.
to meet that burden.

The plaintiff has failed

Therefore, the undersigned shall adopt

Magistrate Judge Parker’s recommendation that the plaintiff’s
Motion for Partial Summary Judgment be denied.
Accordingly,
IT IS HEREBY ORDERED that Magistrate Judge Michael T. Parker’s
Report and Recommendation (docket entry 97) is ADOPTED in its
entirety as the findings and conclusions of this Court;
FURTHER ORDERED that the plaintiff’s Motion to Dismiss Prior
Motion (docket entry 92) is GRANTED;
FURTHER

ORDERED

that

the

plaintiff’s

Motion

for

Partial

Default Judgment or Summary Judgment (docket entry 89) is denied as
MOOT;
FURTHER

ORDERED

that

the

plaintiff’s

Motion

for

Partial

Summary Judgment (docket entry 90) is DENIED;
FURTHER ORDERED that defendants Sheppard, Green, and Smith
shall file an amended answer or other responsive pleading, in which
they admit or deny the plaintiff’s allegations set forth in the
plaintiff’s Motion to Amend (docket entry 42), within fourteen (14)
days from the date of entry of this Order.
SO ORDERED, this the 1st day of June, 2017.

/s/ David Bramlette
UNITED STATES DISTRICT JUDGE

10