McCaley v. Hall et al

Filing 84

ORDER ADOPTING REPORT AND RECOMMENDATIONS 71 Report and Recommendations and 72 Report and Recommendations. IT IS FURTHER ORDERED that Pelicia Hall and Monica Carter are DISMISSED from this action with prejudice;IT IS FURTHER ORDERED that the plaintiffs motions [Docs. 18, 41, 62] are DENIED; IT IS FURTHER ORDERED that this case shall continue as to the remaining defendants. Signed by Honorable David C. Bramlette, III on 03/08/19 (KNS) (Copy mailed to Plaintiff.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION

CORDELLRA MCCALEY

PLAINTIFF

V.

CAUSE ACTION NO. 5:18-cv-43

PELICIA HALL, ET AL.

DEFENDANTS
ORDER

Before the Court are the plaintiff’s Motion for TRO [Doc.
18], Motion for Injunctive Relief [Doc. 41], Motion for Injunctive
Relief [Doc. 62], and United States Magistrate Judge Michael T.
Parker’s Reports and Recommendations [Docs. 71 and 72].
Magistrate Judge Parker recommends that the plaintiff’s
motions [Docs. 18, 41, 62] be denied. Doc. 71, p. 4. He also
recommends that Pelicia Hall be dismissed with prejudice, that
Monica Carter be dismissed with prejudice, and that the case
continue as to the remaining defendants. Doc. 72, p. 1. For reasons
that follow, Magistrate Judge Parker’s Reports and Recommendations
[Docs. 71 and 72] are ADOPTED.
The plaintiff brings this civil rights action under 42 U.S.C.
§ 1983. The plaintiff complains that medical professionals at the
Mississippi State Penitentiary (“Parchman”), Central Mississippi
Correctional Facility (“CMCF”), and Wilkinson County Correctional
Facility (“WCCF”) failed to provide him adequate medical care. The

plaintiff also complains that officials at WCCF failed to protect
him from other inmates. In his motion for TRO [Doc. 18], the
plaintiff alleges that non-defendants, Barbara Scott, Sgt. Reese,
and

other

unnamed

officers,

have

threated

him

and

acted

unprofessionally toward him because he “wrote them up” [Doc. 18,
p. 1] and because they do not want him informing prison officials
about drugs being smuggled into prison. As relief, the plaintiff
requests that his custody level and his kitchen job be restored.
In his motion for injunctive relief [Doc. 41], the plaintiff
complains that prison officials are treating him unfairly and
specifically, that a dental assistant, Ms. Pulliam, threatened to
kill him. As relief, the plaintiff requests that the Court order
prison officials to act professionally, without retaliation.
In his motion for injunctive relief [Doc. 62], the plaintiff
requests that the Court order prison officials to stop harassing
him and stop downgrading his custody level. Doc. 62, p. 1. The
plaintiff complains that Inmate Reshawn Jones, who is housed in
administrative segregation along with the plaintiff, attempted to
attack him and poses a threat to him. Doc. 62, p. 2.
The

requirements

injunction,

the

for

plaintiff

obtaining
must

a

TRO

demonstrate

(1)

or
a

preliminary
substantial

likelihood that the plaintiff will prevail on the merits; (2) a
substantial threat that irreparable injury will result if the
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injunction is not granted; (3) that the threatened injury outweighs
the threatened harm to the plaintiff; and (4) that granting the
preliminary injunction will not disserve the public interest.
Miss. Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618,
621 (5th Cir. 1985)(internal citation omitted). The decision to
grant or deny a preliminary injunction is discretionary with the
district court. Id. A preliminary injunction is an extraordinary
remedy. Id. It should only be granted if the plaintiff has clearly
carried the burden of persuasion on all four of the requirements.
Id.
During the hearing on the motions, the plaintiff stated that,
in July 2018, he had a medium custody level and was working in the
prison kitchen. Doc. 71, p. 2. Prison officials, however, wrote
him rule violation reports (“RVRs”), which resulted in a custody
level downgrade and the loss of his kitchen job. Id. The plaintiff
again

complained

that

the

dental

assistant,

Ms.

Pulliam,

threatened to kill him and refused to provide him a teeth cleaning.
Doc. 71, pp. 2-3. Although Sgt. Selvage was not mentioned in any
of the plaintiff’s motions, during the hearing, the plaintiff
complained that Sgt. Selvage issued him RVRs and failed to do
anything about the other officers threatening him. Doc. 71, p. 3.
The plaintiff requested that the Court protect him from all threats
from prison officials. Id.

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During the hearing, the plaintiff submitted copies of his
sick calls requesting a teeth cleaning and other dental care,
affidavits stating that Sgt. Selvage threatened him, and RVRs
issued

against

him.

See

Docs.

69-1,

69-2.

In

response,

the

defendants submitted a detention notice from May 23, 2018, stating
that the plaintiff was moved to administrative segregation because
he alleged that his cellmate attacked him and another from July 3,
2018, stating that he was again moved to segregation because he
refused to be moved to another unit. Doc. 69-3, pp. 9, 13. The
defendants also submitted a reclassification score sheet from
October 1, 2018, indicating that the plaintiff’s custody level was
downgraded because he was convicted of possessing contraband in
prison and previously attempted to escape prison. Doc. 69-3, pp.
28,

26.

Additionally,

the

defendants

demonstrated

that

the

plaintiff is now kept separate from Sgt. Selvage due to “fear that
he may become hostile toward this staff member” and that Inmate
Reshawn Jones, who the plaintiff claims is a threat to him, is no
longer housed in administrative segregation with the plaintiff.
Doc. 69-3, pp. 19, 31-32.
Magistrate Judge Parker finds that the plaintiff has failed
to meet the requirements for injunctive relief because he did not
demonstrate that there is a substantial likelihood of success on
the merits or that a substantial threat of irreparable harm exists.
Doc. 71, p. 3. Also, the evidence presented at the hearing shows
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the

changes

in

the

plaintiff’s

custody

level

and

housing

assignments resulted from the plaintiff’s wrongful actions and
altercations with other inmates and prison staff members. At the
hearing, the plaintiff admitted that he possessed contraband, and
he failed to demonstrate that any RVR was wrongfully issued. The
evidence also showed that Inmate Jones is no longer housed with
the plaintiff. Allegations of verbal abuse and threats do not
amount to constitutional violations. See McFadden v. Lucas, 713
F.2d 143 (5th Cir. 1983). The plaintiff failed to show that loss
of a job in the kitchen or failure to provide a teeth cleaning
warrant extraordinary relief. Therefore, the plaintiff has not met
his burden of proving all four requirements for injunctive relief.
See Miss. Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d
618, 621 (5th Cir. 1985).
The plaintiff filed an Objection [Doc. 75], stating that he
had proven to the Court that he is being harassed by prison
officials and other inmates. In his Objection, the plaintiff
reiterated arguments he already made. The plaintiff does make one
new argument that prison officials are paying other offenders to
assault him. Doc. 75, p. 4. However, this new allegation, without
more, fails to demonstrate a substantial likelihood that the
plaintiff will prevail on the merits or that substantial threat
that irreparable injury will result if the injunction is not
granted. See Miss. Power & Light Co., 760 F.2d 618. Therefore, the
5

Court

finds

the

plaintiff

still

has

not

met

his

burden

for

obtaining a TRO. Therefore, the plaintiff’s motions [Docs. 18, 41,
62] are DENIED.
Regarding

Magistrate

Judge

Parker’s

second

Report

and

Recommendation [Doc. 72], no objection is filed. The parties
appeared before Magistrate Judge Parker and participated in an
omnibus hearing on January 24, 2019. During the hearing, the
plaintiff stated that he no longer wishes to pursue his claims
against Pelicia Hall and Monica Carter and requested that Hall and
Carter be dismissed from this action. The Court explained that the
dismissal of Hall and Carter would be with prejudice. The plaintiff
testified that he understood the consequences of such a dismissal.
The plaintiff also testified that he is of sound mind and judgment,
is not under any undue influence or pressure to dismiss his claims
against these defendants, and is doing so voluntarily. No defendant
opposed

the

plaintiff’s

request.

Therefore,

Magistrate

Judge

Parker recommends that Pelicia Hall be dismissed with prejudice,
Monica Carter be dismissed with prejudice, and that the case
continue as to the remaining defendants. Doc. 72, p. 1. This Court
adopts the Report and Recommendation [Doc. 72]’s findings and
conclusions as its own. Therefore, Pelicia Hall and Monica Carter
are DISMISSED with prejudice.
Accordingly,

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IT IS ORDERED that Magistrate Judge Parker’s Reports and
Recommendations [Docs. 71 and 72] are ADOPTED as the findings
and conclusions of this Court;
IT IS FURTHER ORDERED that Pelicia Hall and Monica Carter
are DISMISSED from this action with prejudice;
IT IS FURTHER ORDERED that the plaintiff’s motions [Docs.
18, 41, 62] are DENIED;
IT IS FURTHER ORDERED that this case shall continue as to
the remaining defendants.
SO ORDERED this the 8th day of March, 2019.
_/s/ David Bramlette________
UNITED STATES DISTRICT JUDGE

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