McCaley v. Hall et al

Filing 141

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 101 Motion for Summary Judgment filed by Gloria Perry, 97 Motion for Summary Judgment, filed by William Barr, J. Burke, Keith Stokes, 104 Motion for Summary Judgment, filed by Olivia Trask, Mary Groom, Jody Bradley, Karen Brown, 139 Report and Recommendations. Signed by District Judge David C. Bramlette, III on 2/27/2020. (PG)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
CORDELLRA MCCALEY
v.

PLAINTIFF
CIVIL ACTION NO. 5:18-cv-43-DCB-MTP

GLORIA PERRY, ET AL.

DEFENDANTS

ORDER ADOPTING REPORT AND RECOMMENDATION
This cause is before the Court on Magistrate Judge Michael
T. Parker’s Report and Recommendation [ECF No. 139], to which no
objections were filed by the Plaintiff. Having carefully
reviewed the same, the Court finds that the Report and
Recommendation to be well taken.
Magistrate Judge Parker recommends that Defendants Dr.
William Barr, Dr. James Burke, and Dr. Keith Stokes Motion for
Summary Judgment [ECF No. 97] be GRANTED. Plaintiff sues the
aforementioned defendants for denial of adequate medical care in
violation of the Eighth Amendment. In their Motion for Summary
Judgment, Doctors Barr, Burke, and Stokes assert that they are
entitled to judgment as a matter of law because Plaintiff has
failed to demonstrate that any Defendant acted with deliberate
indifference in treating the Plaintiff. The medical records show
that the Plaintiff received extensive medical care; he was
provided constant treatment by the medical staff in the prisons,
was taken to see an ophthalmologist or surgeon on at least eight
occasions; and Plaintiff has failed to demonstrate that the
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surgery he wanted was medically necessary. Plaintiff must
“submit evidence that prison officials ‘refused to treat him,
ignored his complaints, intentionally treated him incorrectly,
or engaged in any other similar conduct that would clearly
evince a wanton disregard for any serious medical needs.’”
Davidson v. Texas Dep’t of Criminal Justice, 91 Fed.App’x 963,
965 (5th Cir. 2004)(quoting Domino v. Texas Dep’t of Criminal
Justice, 239 F.3d 752, 756 (5th Cir. 2001)). Plaintiff has
failed to submit evidence that demonstrates the Defendants were
deliberately indifferent to his serious medical needs.
Magistrate Judge Parker recommends that Defendant Gloria
Perry’s Motion for Summary Judgment [ECF No. 101] be GRANTED.
Plaintiff alleges that Defendant Perry – who he claims is or was
the Mississippi Department of Corrections official in charge of
the nurses and the final decision maker regarding prisoner
appointments with outside medical providers – denied him
adequate medical care. However, as Magistrate Judge Parker
found, the Plaintiff received adequate medical care and has not
been able to allege facts sufficient to rise to the level of a
constitutional violation, i.e., a deliberate indifference to the
prisoner’s serious medical needs.
Magistrate Judge Parker recommends that Defendants John
Bradley, Mary Groom, Karen Brown, and Olivia Trask’s Motion for

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Summary Judgment [ECF No. 104] be GRANTED. Plaintiff sues the
aforementioned defendants for failing to protect him in
violation of the Eighth Amendment. The Prison Litigation Reform
Act, 42 U.S.C. § 1997e(a) requires prisoners to exhaust any
available remedies prior to filing suit under 42 U.S.C. § 1983.
Plaintiff has failed to exhaust his administrative remedies
prior to filing this action; therefore, he may not proceed with
his claims against Defendants Bradley, Brown, Groom, and Trask.
Prior to receiving Magistrate Judge Parker’s Report and
Recommendation, Plaintiff signed a document on January 12, 2020
labeled “Complaint Against ‘M.D.O.C.’”. The document was filed
by the Clerk of the Court on January 21, 2020 – after the Report
and Recommendation. As the “Complaint Against M.D.O.C.” was
written and signed prior to the Report and Recommendation, it
cannot be construed as an objection. To the extent that it is
deemed an Amended Complaint, it has no legal operative effect as
the Plaintiff did not request leave from the Court to file an
amendment. See F.R.Civ.P. 15(a)(allowing a party to amend its
pleading once as a matter of course within 21 days after serving
it, 21 days after service of a responsive pleading, or 21 days
after service of a motion under Rule 12(b), (e), or (f), but
requiring either the opposing party’s written consent or the
Court’s leave in all other cases); see also, U.S. ex rel.
Mathews v. HealthSouth Corp., 332 F.3d 293, 295 (5th Cir. 2003).
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Here, the original Complaint was filed in 2018, well outside the
parameters of the 21 day period.
However, even should the Court consider the fact that the
Amended Complaint was filed to be evidence of a request, the
Court will not grant leave. The “Complaint Against M.D.O.C.”
does not state an allegation against a specific individual in
the prison. Additionally, the “amended complaint” does not
request relief or state a claim other than the Plaintiff’s
statement that he is “having Constitutional problems inside the
Mississippi prison system,” and that the he “can’t even receive
adequate medical care due to officials being scared to move me
around.” [ECF No. 140]. As previously discussed, the Court has
found that Plaintiff received adequate medical care and the
“Complaint Against M.D.O.C.” does not provide any new or
relevant information regarding that claim.
The “Complaint Against M.D.O.C.” also alleges:
“M.D.O.C. officials aren’t allowing me to receive
medical care claiming that they are only trying to
protect me from harm, which isn’t true it’s out of
retaliation[.] [O]fficials are using offenders to
create situations as a way to keep me behind a cell
door 24-hours a day hoping I commit suicide.”
As to any claim of retaliation, the Fifth Circuit has made clear
that an inmate “must allege more than his personal belief that
he is the victim of retaliation.” Jones v. Greninger, 188 F.3d
322, 325 (5th Cir. 1999). The inmate must allege facts that
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establish direct evidence of retaliatory motivation or “a
chronology of events from which retaliation may plausibly be
inferred.” Id. Plaintiff has alleged no such facts to support a
claim of retaliation. Therefore, it would be futile to allow the
amended complaint to go forward. See Varela v. Gonzales, 773
F.3d 704 (5th Cir. 2014)(“a district court may refuse leave to
amend if the filing of the amended complaint would be futile,
i.e., if the complaint as amended would be subject to
dismissal.”)(internal citations omitted).
Accordingly,
IT IS HEREBY ORDERED and ADJUDGED that the Court ADOPTS
Magistrate Judge Michael T. Parker’s Report and Recommendation
[ECF No. 139] as the findings and conclusions of this Court.
IT IS FURTHER ORDERED that Defendants Dr. William Barr, Dr.
James Burke, and Dr. Keith Stokes’s Motion for Summary Judgment
[ECF No. 97] is hereby GRANTED.
IT IS FURTHER ORDERED that Defendant Gloria Perry’s Motion
for Summary Judgment [ECF No. 101] is hereby GRANTED.
IT IS FURTHER ORDERED that Defendants John Bradley, Mary
Groom, Karen Brown, and Olivia Trask’s Motion for Summary
Judgment [ECF No. 104] is hereby GRANTED.

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A final judgment dismissing the action will follow in
accordance with Federal Rule of Civil Procedure 58.
SO ORDERED this the 27th day of February 2020.

__/s/ David Bramlette________
UNITED STATES DISTRICT JUDGE

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