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Search Terms: 2012 U.S. Dist. LEXIS 101964
Carr, MichaelGRIFFITH & GRIFFITH123 S COURT STCLEVELAND, MS 38732-2649 SHIRLEY WHITE, as wrongful death beneficiary of KEITH PERKINS,
2012 U.S. Dist. LEXIS 101964
July 23, 2012, Decided
July 23, 2012, Filed
SUBSEQUENT HISTORY: Motion denied by White v.
Wexford Health Sources, Inc., 2012 U.S. Dist. LEXIS127127 (N.D. Miss., Sept. 7, 2012) OPINION BY: Glen H. Davidson
PRIOR HISTORY: White v. Wexford Health Sources,
Inc., 2012 U.S. Dist. LEXIS 86042 (N.D. Miss., June 21,2012) MEMORANDUM OPINION
COUNSEL: [*1] For Shirley White, as Wrongful Death
A. Introduction
Beneficiary of Keith Perkins, Deceased, Plaintiff: Jim D.
Waide, This matter is before the Court on the motion [25] of ASSOCIATES, PA, Tupelo, MS; John Booth Farese, Defendant Tunica County, Mississippi for summary Steven E. Farese, FARESE, FARESE & FARESE, judgment on all state law claims asserted against it Ashland, MS; Luther C. Fisher, IV, Luke Fisher Law, because it is immune from liability pursuant to the inmate PLLC, Oxford, MS; Mary Austin Monteith, AUSTIN exemption of the Mississippi Tort Claims Act ("MTCA"), Mississippi Code § 11-46-9(1)(m). Tunica County alsoseeks summary judgment as to Plaintiff's 42 U.S.C. § For Wexford Health Sources, Inc., Defendant: Joseph A.
1983 [*2] constitutional deprivation claim on the basis of O'Connell, LEAD ATTORNEY, BRYAN, NELSON PA, an alleged lack of proof of the essential elements of that Hattiesburg, MS; Jared Wayne Eastlack, PHELPS DUNBAR - Tupelo, Tupelo, MS; Rick D. Norton,BRYAN, NELSON, RANDOLPH & WEATHERS, In opposition to the motion for summary judgment on the state law claims, Plaintiff argues that MississippiCode § 11-46-9(1)(m) is unconstitutional because it For Tunica County, Mississippi, Defendant: Daniel J.
violates the Equal Protection Clause of the United States Griffith, LEAD ATTORNEY, GRIFFITH & GRIFFITH, Constitution applicable to the states via the Fourteenth Cleveland, MS; Andrew T. Dulaney, DULANEY LAW Amendment. As for the motion for summary judgment on 2012 U.S. Dist. LEXIS 101964, *2
the Section 1983 claim, Plaintiff initially asserted that almost a month and they ain't gave me none of my additional discovery pursuant to Rule 56(f) of the Federal medicine.' I/M acknowledges hx of epilepsy. States he Rules of Civil Procedure was necessary in order for it to respond to the motion. See Motion for Discovery [39].
compliance until transfer to CMCF." On June 16, 2008, The Court granted that request and permitted Plaintiff Perkins was prescribed different medications than those ninety days to conduct such discovery, following which administered during his incarceration at TCDF and was Plaintiff was required to file, within ten days, any transported to Central Mississippi Medical Center for opposition to the motion it might have. See Order [50].
Plaintiff has not filed any opposition to the motion for following a cardiac arrest. The complaint [1] alleges that summary judgment with regard to the Section 1983 Tunica County "failed to take the necessary steps to claim, and it has been well over a year since the response assure that Perkins' medical records and medications was due. For this and the reasons discussed below, the were transported with him" to CMCF. See Pl.'s Compl.
court finds the Defendant Tunica County's motion C. Summary Judgment Standard
B. [*3] Factual Background
Summary [*5] judgment "should be rendered if the Plaintiff Shirley White seeks damages against Tunica pleadings, the discovery and disclosure materials on file, County pursuant to state law and 42 U.S.C. § 1983 for the and any affidavits show that there is no genuine dispute alleged wrongful death of her brother, Keith Perkins, a as to any material fact and that the movant is entitled to prison inmate. Initially, Perkins was incarcerated at judgment as a matter of law." FED. R. CIV. P. 56(a); Tunica County Detention Facility ("TCDF"). While Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. housed there, Perkins was provided medical care for an 2548, 91 L. Ed. 2d 265 (1986); Weaver v. CCA Indus., epileptic condition. This medical care included the Inc., 529 F.3d 335, 339 (5th Cir. 2008). "The moving medications Lamictal, Tegratal, and Keppra. These were party must show that if the evidentiary material of record Perkins' prescribed medications because he reported an were reduced to admissible evidence in court, it would be allergy to Dilantin. He remained at TCDF until June 12, insufficient to permit the nonmoving party to carry its 2008. On that date, at 0800 hours, Perkins signed for and burden." Beck v. Tex. State Bd. of Dental Examiners, 204 was administered his final prescribed dosages of F.3d 629, 633 (5th Cir. 2000) (citing Celotex Corp., 477 Lamictal, Tegratal, and Keppra, and at 0831 hours, he U.S. at 327, 106 S. Ct. 2548). After a proper motion for was transferred to CMCF by a correctional officer or summary judgment is made, the burden shifts to the officers. Perkins' medications and medical records were non-movant to set forth specific facts showing that there not transported with him at the time of this transfer.
is a genuine issue for trial. Anderson v. Liberty Lobby, Consistent with the general practice of the TCDF, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 91 L. Ed. 2d 202 however, a medical synopsis regarding Perkins' condition (1986); Beck, 204 F.3d at 633; Allen v. Rapides Parish and allergies was given to the transporting officer prior to School Bd., 204 F.3d 619, 621 (5th Cir. 2000); Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir.
Perkins arrived at CMCF at 1431 hours on June 12, 2008. He was provided a medical screening at 1640 hours Substantive law determines what is [*6] material.
that same day, and he signed [*4] a required MDOC Anderson, 477 U.S. at 249, 106 S. Ct. 2505. "Only form entitled "Mississippi Department of Corrections, disputes over facts that might affect the outcome of the Prison Medical History and Screening." The form suit under the governing law will properly preclude the indicates that Perkins suffered from a "Seizure Disorder"; entry of summary judgment. Factual disputes that are that his current medications were Lamictal, Tegratal, and irrelevant or unnecessary will not be counted." Id. at 248, Keppra; and that he had a medication allergy to Dilantin.
106 S. Ct. 2505. If the non-movant sets forth specific Perkins was scheduled for a physical to be performed at a facts in support of allegations essential to his claim, a later date and was transported to general population in a genuine dispute is presented. Celotex Corp., 477 U.S. at different building. Interdisciplinary Medical Notes from 327, 106 S. Ct. 2548. "Where the record, taken as a June 14, 2008 state that "I/M to clinic stating 'I been here whole, could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." rather than unconstitutional if the statute Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); apparently conflict with organic law, after Federal Sav. & Loan Ins. v. Kralj, 968 F.2d 500, 503 (5th The facts are reviewed drawing all reasonable Loden v. Miss. Pub. Serv. Comm'n, 279 So. 2d 636, 640 inferences in favor of the non-moving party. Allen, 204 (Miss. 1973) (citations omitted); see also Hoops v. State, F.3d at 621; PYCA Indus., Inc. v. Harrison Cnty. Waste 681 So. 2d 521, 536 (Miss. 1996); Richmond v. City of Water Mgmt. Dist., 177 F.3d 351, 361 (5th Cir. 1999); Corinth, 816 So. 2d 373 (Miss. 2002).
Banc One Capital Partners Corp. v. Kneipper, 67 F.3d1187, 1198 (5th Cir. 1995). However, this is so only b. Analysis
when there is "an actual controversy, that is, when bothparties have submitted evidence of contradictory facts." There is no dispute that Section § 11-46-9(1)(m), as [*7] Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th it stands, entitles Tunica County to immunity from Cir. 1994); see Edwards v. Your Credit, Inc., 148 F.3d Plaintiff's state law claims. Section 11-46-9(1)(m) bars an 427, 432 (5th Cir. 1998). In the absence of proof, the inmate of a correctional facility from bringing suit against court does not "assume that the nonmoving party could or a governmental entity. The section provides in pertinent would prove the necessary facts." Little, 37 F.3d at 1075 D. Discussion
1. Plaintiff's State Law Claims
a. Burden of Proof
scope of their employment or duties shallnot be liable for any claim: A statute enacted by the Mississippi Legislature is presumed constitutional. Vance v. Lincoln Cnty. Dep't of Pub. Welfare, 582 So. 2d 414, 419 (Miss. 1991).
Accordingly, a party challenging the constitutionality of a unconstitutionality of the statute beyond a reasonable doubt. Id.; Exxon Corp. v. Bd. of Educ. of Lamar Cnty., Miss., 849 F. Supp. 479, 489 (S.D. Miss. 1994). The Mississippi Supreme Court has stated: "This Court will strike down a statute on constitutional grounds only where it appears beyond all reasonable doubt that such farm, penitentiary or other such institution statute violates the constitution." Wells v. Panola Cnty. Bd. of Educ., 645 So. 2d 883, 888 (Miss. 1994). The courthas further stated: MISS. CODE ANN. § 11-46-9(1)(m). This statute has been repeatedly upheld as providing immunity to the State and presumption of validity and such assailant its political subdivisions from suits by prisoners. See Mahaffey v. Pearl River Cnty., No. 1:07cv1070-RHW, 2009 U.S. Dist. LEXIS 45011, 2009 WL 1507418 (S.D. beyond a reasonable doubt. All doubt must Miss. May 29, 2009) (finding county immune from be resolved in favor of the validity of a inmate's state law claim for injuries sustained during a statute. If possible, courts should construe motor vehicle accident); Whitt v. Gordon, 872 So. 2d 71 statutes so as to render them constitutional (Miss. Ct. App. 2004) (upholding dismissal on immunity grounds of inmate's claim against state employees for respect to Plaintiff's next argument, in her brief, she cites injury sustained in motor vehicle accident which occurred Cleburne Living Center, Inc. v. City of Cleburne, Texas, during inmate's transport to prison facility); Carter v. 726 F.2d 191, 197 (5th Cir. 1984), for the proposition Miss. Dep't of Corrections, 860 So. 2d 1187 (Miss. 2003) that prison inmates constitute a quasi-suspect class.
(holding governmental entity immune from negligence According to Plaintiff, "[a]lthough prisoners are not a suit for wrongful death of inmate); Wallace v. Town of suspect class, 'they do share enough of the characteristics Raleigh, 815 So. 2d 1203 (Miss. 2002) (holding statute of a suspect class to [*12] warrant heightened scrutiny.'" barring inmate from suing governmental entity was Pl.'s Br. [41] at 8. However, Cleburne, in fact, neither constitutional and that prisoner fell within statutory bar); holds nor suggests that prisoners are a quasi-suspect Sparks v. Kim, 701 So. 2d 1113, 1114 (Miss. 1997) [*10] classification. 1 The Mississippi Supreme Court and the (MTCA inmate exception to waiver of sovereign Fifth Circuit have at least implicitly recognized that immunity held a bar to wrongful death claim against prisoners do not constitute a quasi-suspect classification, as both courts have clearly held that the analysisapplicable to prisoner challenges to the constitutionality Here, however, Plaintiff opposes dismissal of her of legislation is whether there is a rational relationship state law claims on the ground that the statute is between the challenged legislation and a governmental unconstitutional because it violates the United States interest. See Carson, 112 F.3d 818; Wallace, 815 So. 2d Constitution's mandate of equal protection. Specifically, Plaintiff asserts that prisoners are considered, or should quasi-suspect classification, those courts would have be considered, a suspect class or quasi-suspect class applied a substantial relationship analysis. Moreover, in and/or that the statute at issue impinges a fundamental instances where the issue of whether prisoners qualify as constitutional right of prisoners to receive adequate a quasi-suspect classification has been specifically medical care. If correct in these assertions, Plaintiff addressed by other courts, those courts have consistently accurately argues that the immunity statute is subject to a found the classification inapplicable. See, e.g., Bell v. "strict scrutiny" analysis (for suspect classification or Holder, No. 2:11cv488-WHA, 2012 U.S. Dist. LEXIS impingement of a fundamental constitutional right) or a 31166, 2012 WL 777186 (M.D. Ala. Mar. 8, 2012); "substantial relationship" analysis (for quasi-suspect Nakao v. Rushen, 542 F. Supp. 856 (N.D. Ca. 1982).
classification). See Mass. Bd. of Retirement v. Murgia,427 U.S. 307, 314, 96 S. Ct. 2562, 49 L. Ed. 2d 520 In Cleburne, the Fifth Circuit concluded that (1976); Grimes v. Pearl River Water Supply Dist., 930 "although mental retardates are not a suspect F.2d 441, 444 (5th Cir. 1991). In the alternative, Plaintiff asserts that even if prisoners are not a suspect or characteristics of a suspect class to warrant quasi-suspect class, and the statute does not impinge a heightened scrutiny." Cleburne, 726 F.2d at 197 fundamental constitutional right of prisoners, [*11] it (emphasis added). However, the United States nevertheless violates the Equal Protection Clause of the Supreme Court actually vacated this holding, Constitution because the statute bears no "rational relationship" to a legitimate state interest. As the Plaintiff quasi-suspect classification calling for a more aptly notes, such a relationship is required of any exacting standard of judicial review. See City of legislation facing a constitutional challenge where that Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. legislation involves neither a suspect nor quasi-suspect 432, 442-43, 105 S. Ct. 3249, 87 L. Ed. 2d 313 classification or a fundamental constitutional right. The Court will address Plaintiff's arguments in turn.
See also Phillips ex rel. Phillips v. Monroe Cnty., Miss., 311 F.3d 369, 376 n.2 (5th Cir. With respect to Plaintiff's first argument, both the Fifth Circuit Court of Appeals and the Mississippi Supreme Court have concluded that prisoners are not asuspect class for purposes of triggering a strict scrutiny The Court next turns to Plaintiff's alternative analysis of challenged legislation. See Carson v. Johnson, argument that the statute is subject to a strict scrutiny 112 F.3d 818 (5th Cir. 1997); Wallace, 815 So. 2d 1203.
analysis because it offends a fundamental constitutional Plaintiff has cited no authority to the contrary. With right of prisoners. Specifically, Plaintiff argues that the statute offends prison inmates' constitutional right to absence of any controlling law to the contrary, the Court receive reasonable medical care. However, as is plain finds that Plaintiff's challenge to the constitutionality of from the face of the statute-which language is quoted Section 11-46-9(1)(m) is without merit, and that there are above--it does no such thing. The subject of medical care no triable issues of fact regarding whether Defendant is nowhere addressed in the section of the MTCA at issue Tunica County is immune from suit pursuant to the here. Instead, the statute does no more than reaffirm, as to MTCA with regard [*16] to Plaintiff's state law claims.
Accordingly, Tunica County is entitled to summary sovereign immunity [*14] of the State with regard to judgment on all of Plaintiff's state law claims.
state law claims. See Wallace, 815 So. 2d 1203; Grimes,930 F.2d 441.
2. Plaintiff's Section 1983 Claims
Finally, Plaintiff argues that even under the least In support of its motion for summary judgment on stringent analysis for addressing constitutional challenges Plaintiff's Section 1983 claims, Tunica County asserts to legislation, the rational relationship test, the statute at that Plaintiff has failed to identify a policy or custom that issue is unconstitutional because it bears no rational resulted in deliberate indifference to Keith Perkins' relationship to any legitimate state purpose. In particular, known serious health condition and/or has failed to offer Plaintiff contends that the statute deprives prisoners of proof that a delay/denial of medical care occasioned adequate medical care, and that because prisoners are thereby caused Perkins' death. In response to these dependent on the State for the provision of adequate arguments, Plaintiff asserted that in order to bring forth medical care, the statute is "irrational." Again, Plaintiff evidence of the same, she needed to conduct limited has wholly misconstrued the subject of the statute which, discovery. The Plaintiff was thereupon granted a period as noted above, does not address the provision of medical of ninety days from June 17, 2010, in which to conduct care. Moreover, although not addressed at all by Plaintiff, this discovery and was expressly ordered to file any this Court notes that the Mississippi Supreme Court has opposition to the motion for summary judgment that it already considered the very challenge to the instant might have within ten days thereafter. The Plaintiff has statute made here and has held that 1) the rational never filed any such response or opposition, and well relationship test is the appropriate test; and 2) the statute over a year has lapsed since the response was due.
bears a rational relationship to a legitimate state concern.
Because the Plaintiff has come forth with no proof of a In Wallace, an injured inmate argued that the subject custom or policy of Tunica County that manifested itself statute violated the Remedy Clause, Due Process Clause, in deliberate indifference to Perkins' serious medical and the Equal Protection Clause [*15] of the Mississippi [*17] needs and/or proof that the same caused his death, and the United States Constitutions. 815 So. 2d 1203.
summary judgment is appropriate on this claim. 3 Each of these theories was considered and rejected by the 3 See Monell v. Dep't of Soc. Servs. of the City of Mississippi Supreme Court. Id. With regard to the equal New York, 436 U.S. 658, 690, 98 S. Ct. 2018, 56 protection claim, in particular, the Wallace court L. Ed. 2d 611 (1978) (holding that local reasoned that the claim failed because it found that "[t]he governments may be sued directly under Section Legislature had a legitimate purpose in protecting 1983 where the alleged unconstitutional action is governmental entities from claims brought by inmates." part of an official policy or custom of the Id. at 1207. Consequently, the court found that the governmental body). See also Conner v. Travis plaintiff in that case failed to establish that the statute was Cnty., 209 F. 3d 794, 796 (5th Cir. 2000) unconstitutional under the rational relationship test. Id. ("Counties and supervisors are not liable for Wallace has been cited with favor by the Southern constitutional violations committed by county District of Mississippi. See, e.g., Mahaffey v. Pearl River employees unless those violations result directly Cnty., No. 1:07cv1070-RHW, 2009 U.S. Dist. LEXIS from a municipal custom or policy.").
45011, 2009 WL 1507418 (S.D. Miss. May 29, 2009); andHodge v. Flynn, No. 2:07cv40-KS-MTP, 2007 U.S. Dist. E. Conclusion
LEXIS 69129, 2007 WL 2727263, at *2 (S.D. Miss. Sept.
17, 2007)
County's Motion for Summary Judgment should, and is In the face of such established precedent, and in the The Court shall enter a final judgment on these claims in accordance with this opinion, THIS, 23th day of July,2012.
Time of Request: Tuesday, October 23, 2012 Carr, MichaelGRIFFITH & GRIFFITH123 S COURT STCLEVELAND, MS 38732-2649


June 3, 1996

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DERMaTOlOGIa piante e sole: un mix E SE FOSSE allERGIa? In alcuni casi, meno frequenti, le stesse piante che provocano (a volte) pericoloso reazioni fototossiche possono indurre anche una reazione al- lergica. Ma che differenza c'è? a cura di Grazia Manfredi • La reazione fototossica dipen- de esclusivamente dal contatto con la sostanz

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