Opinion
No. 4:06CV62-M-A.
July 14, 2006
REPORT AND RECOMMENDATION
On June 29, 2006, plaintiff Shawn Skyles, an inmate in the custody of the Mississippi State Penitentiary with inmate number K3338, appeared before the undersigned for a hearing pursuant to Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985), to determine whether there exists a justiciable basis for his claim filed pursuant to 42 U.S.C. § 1983. A plaintiff's claim shall be dismissed if "it lacks an arguable basis in law or fact, such as when a prisoner alleges the violation of a legal interest that does not exist." Martin v. Scott, 156 F.3d 578 (5th Cir. 1998) (citations omitted). For the purposes of the Prison Litigation Reform Act, the court notes that the plaintiff was incarcerated when he filed this lawsuit.
Factual Allegations
This case presents the court with a claim that the defendants used excessive force against the plaintiff and then denied the plaintiff medical care for the injuries received in the excessive force incident. The events in this case took place at Unit 32-D in the Mississippi State Penitentiary on September 19, 2005. The plaintiff wanted to discuss a problem with building supervisor Captain P. Foster. The plaintiff claims that Captain P. Foster is the sister of the Warden, Darlester Foster. When Captain Foster would not discuss the plaintiff's problem with him, the plaintiff started a fire in his cell to force her to speak with him. The smoke got so thick that the plaintiff started choking. The plaintiff called Captain Foster to his cell, but she would not remove the plaintiff from his cell and send him to medical. Officer Starks then came by the plaintiff's cell approximately two hours later. He handcuffed the plaintiff and escorted him out of the cell toward medical. Officer Starks led the plaintiff past Captain P. Foster on the way to medical, where the plaintiff and Foster exchanged words. The plaintiff claims that he was choking from smoke inhalation, coughed on Foster and sputum landed on her neck. Foster became enraged and attacked the plaintiff. She punched him in the face repeatedly, injuring his lip. Officer Starks moved the plaintiff along faster, placing himself between the plaintiff and Foster. Foster continued screaming and hitting the plaintiff. She grabbed the plaintiff's hair and tried to bang his face against the wall. CO IV White gave Captain Foster a nightstick, and Foster began beating the plaintiff's head and shoulder with it. The blows split the plaintiff's scalp, and the plaintiff's head began bleeding profusely. Officer Starks picked up the pace even faster, shielding the plaintiff from Foster's assault with his arms. The plaintiff could go no faster, as he was in handcuffs and leg irons. Foster kept reaching over Starks to beat the plaintiff about the head and shoulders. The plaintiff was not sure how but Officer Starks's hand was broken either by one of Foster's blows as Starks attempted to shield the plaintiff or when the door closed on Starks's hand. The staff at Unit 32 medical refused to treat the plaintiff for his injuries.According to the plaintiff, the entire attack is recorded on a DVD, and the FBI has interviewed the plaintiff and others about the incident. Counsel for the Mississippi Department of Corrections informed the court at the Spears hearing that the format of the DVD is proprietary; thus the events could not be displayed using a standard DVD player. Only the computer program used at the facility can play back the DVD recording of the incident. The court directed counsel to ensure that the recording is preserved. According to the plaintiff's Second Step Response Form, the incident was the subject of an internal audit, and the plaintiff has been placed on the list for transfer to East Mississippi Correctional Facility.
The plaintiff's medical record shows that he was treated for smoke inhalation, but that occurred on September 13, 2005 (the plaintiff recalls the events having taken place on September 19, 2005). A use of force report dated September 18, 2005, describes an incident in which the plaintiff threw a tray of food at guards, then refused to be restrained. The guards wrestled the plaintiff to the ground and used mace to subdue him on that occasion. Another use of force report dated September 19, 2005, describes the tray-throwing incident. A medical report dated September 19, 2005, shows that the plaintiff suffered minor injuries consistent with the events described in the use of force report. The plaintiff alleges that Dr. Lehman, the doctor on duty September 19, 2005, refused to examine him or treat him in any way. Nurse Rice and Nurse Wall were present, but they did not treat or examine the plaintiff. Another entry on September 20, 2005, shows that the plaintiff had an altercation with the guards, in which the guards dragged him into his cell, picked him up, and threw him against the commode. The plaintiff was so aggressive the next day that, after a finding that the plaintiff was in "no acute distress," the follow-up entry of September 21, 2005, states "For the safety of the medical staff, I feel no further w/u indicated @ this time." When asked about the multiple dates regarding uses of force and treatment for smoke inhalation, the plaintiff stated that the incidents of which he complains occurred on September 19, 2005. The other incidents were, in the plaintiff's words, "Other silly stuff I've done." The plaintiff testified that he had set fires in his cell many times before this incident.
The final page of the medical record provided, dated September 29, 2005, discusses the plaintiff's unwillingness to take his medication as prescribed. The plaintiff told the staff, "I take the medication as I think I need it. I feel better when I take it that way. I've been taking it this way for years and that's the way I'm going to take it." When the court asked the plaintiff whether he had psychiatric problems, the plaintiff said, "No ma'am." The court then asked the plaintiff whether doctors had diagnosed him with a condition, and he answered, "Compulsive rage and schizophrenia."
Defendants on Denial of Medical Care Claim
The plaintiff lists as a defendant the Unit 42 Medical Staff; however, the plaintiff's allegations of denial of medical care at the hearing all relate to the inaction of Dr. Lehman. As such, the undersigned recommends that the defendant "Unit 42 Medical Staff" be dismissed and Dr. Lehman be added as a defendant.
Handling of Objections, Acknowledgment of Receipt
The court refers the parties to 28 U.S.C. § 636(b)(1)(B) and Fed.R.Civ.P. 72(b) for the appropriate procedure in the event any party desires to file objections to these findings and recommendations. Objections are required to be in writing and must be filed within ten (10) days of this date, and "a party's failure to file written objections to the findings, conclusions, and recommendation in a magistrate judge's report and recommendation within 10 days after being served with a copy shall bar that party, except on grounds of plain error, from attacking on appeal the unobjected — to proposed factual findings and legal conclusions accepted by the district court. . . ." Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) ( en banc) (citations omitted); see also United States v. Carrillo-Morales, 27 F.3d 1054, 1061-62 (5th Cir. 1994), cert. denied, 513 U.S. 1178, 115 S.Ct. 1163, 130 L. Ed. 1119 (1995).
The plaintiff is directed to acknowledge receipt of this report and recommendation by signing the enclosed acknowledgment form and returning it to the clerk of the court within ten (10) days of this date. Because of the misuse of the court's postage paid envelopes, these envelopes are no longer provided. The plaintiff is warned that failure to comply with the requirements of this paragraph may lead to dismissal of this lawsuit under Fed.R.Civ.P. 41(b) for failure to prosecute the claim and for failure to comply with an order of the court.