BEFORE ROY NOBLE LEE, C.J.; ROBERTSON AND ANDERSON, JJ.
ROBERTSON, JUSTICE, FOR THE COURT:
This civil action is brought by a prisoner in the custody of the Mississippi Department of Corrections, charging that, with callous indifference to his health and well being, MDOC officials caused him to be exposed to another inmate suffering from active tuberculosis, as a result of which plaintiff now has the disease. He has sued everyone in sight.
Because of our procedural posture - the suit was dismissed below for failure to state a claim, we are concerned with whether and when such a plaintiff may proceed past the pleadings stage in the face of the qualified immunity to such
suits enjoyed by the public official defendants.
On September 11, 1981, Alan McFadden was received at the Mississippi State Penitentiary at Parchman, Mississippi, upon his conviction on a charge of armed robbery. At the time McFadden was twenty-nine years of age, was generally healthy, with no communicable diseases. In May of 1986, McFadden, still in the penitentiary, was diagnosed as suffering with tuberculosis.
On May 26, 1986, Alan McFadden *fn1 commenced this civil action by filing his complaint in the Circuit Court of Hinds County, Mississippi. In his complaint, McFadden charged that on November 8, 1985, he had been placed in Unit 30, C Building, B Zone, and that at that time his health was good and he was suffering from no communicable disease. Prior to that time, Frederick S. Marks, another Parchman inmate, had been placed in Unit 30, C Building, B Zone. The complaint charges that on October 25, 1985, Marks had been diagnosed as suffering from tuberculosis, that it had been determined by prison physicians that Marks should be sent to the University Medical Center in Jackson for examination and treatment, but that Marks had been returned to Unit 30 to await transportation to Jackson which did not take place until November 25. Eight days later Marks was returned to Unit 30, his diagnosis of active tuberculosis having been confirmed at the University Medical Center. Marks was taken to the Department of Corrections (MDOC) hospital and placed in isolation on December 6, 1985, where he remained until January 9, 1986, at which time he was again returned to Unit 30 where he presently resides.
McFadden alleges that he was directly exposed to Marks between November 8, 1985, and November 25, 1985, again on December 5 and 6, 1985, and after January 9, 1986. This exposure occurred in that McFadden and Marks were housed in the same housing unit and on the same zone.
On May 7, 1986, McFadden was tested for tuberculosis. He alleges that the test results" were positive with induration measuring 12 mm. "On May 16, 1986, McFadden was taken to the MDOC hospital where his diagnosis was confirmed and he was prescribed medicine INH 300 mg. per day to be taken for a period of one year. The thrust of McFadden's complaint is that he contracted tuberculosis because of exposure to Marks. He does not put all of his eggs in that basket, charging instead in his brief he" does not know whether he was infected by Mr. Marks or some other infected inmate or inmates. "
McFadden's complaint names multiple defendants. These include William A. Allain in his capacity as Governor of the State of Mississippi; Rice P. York, M. Lee Graves, Roland Weeks, Jennifer Buford and C. Michael Malski and Isaac Byrd, in their capacities as members of the Board of Corrections of the State of Mississippi; Morris Thigpen in his capacity as Commissioner of Corrections; Donald Cabana, in his capacity as Superintendent of the Mississippi State Penitentiary at Parchman; Dave Newton, Parchman physician; Niceno Cabanero and Millard Cox, physicians at the Mississippi Department of Corrections (MDOC) hospital, Donald Williamson, an employee of the Mississippi Department of Public Health. The complaint also names" John Doe, medical person [sic], MDOC Hospital. "Beyond this, the complaint names as a party defendant the Mississippi Department of Corrections, a state agency charged with the responsibility of maintaining and providing for the care, custody, study, training, supervision and treatment of adult inmates. McFadden's less than artfully drawn complaint may arguably be construed to name as additional defendants the State of Mississippi and the Board of Corrections as a state agency.
Although McFadden's pro se complaint is neither precise nor consistent, his claim under state law seems twofold: (1) a negligence action charging the defendants with breach of a duty of reasonable care to protect McFadden from unreasonable exposure to active tuberculosis, and (2) an intentional tort action charging the defendants with wilful and wanton behavior in unreasonably and knowingly exposing McFadden to probable serious harm. The latter claim may arise under federal law as well, 42 U.S.C. 1983, to be exact. See Marx v. Truck Renting & Leasing Association, 520 So.2d 1333, 1346 (Miss.1987).
More specifically, the complaint charges that Gov. Allain failed to inspect the MDOC as per his obligations under Miss. Code Ann., 47-5-93 (Supp.1986), the members of the Board for failure to provide for the care, custody and treatment of committed offenders, Miss. Code Ann. 47-5-12 (Supp.1986); Commissioner Thigpen and Superintendent Cabana for similar breaches under Miss. Code Ann. 47-5-23 (Supp.1986); and the three physicians for failure to cause all prisoners to be vaccinated, citing Miss. Code Ann. 47-5-17, -59 and -83 (Supp.1986), despite knowledge of active tuberculosis.
McFadden's complaint demands an aggregate of $1,625,000 in compensatory damages, $100,000 in punitive damages against each defendant, plus attorney's fees and an injunction for
complete medical testing.
On August 22, 1986, all Defendants moved jointly to dismiss the complaint, asserting immunity to suit and charging that the complaint failed to state a claim upon which relief can be granted. See Rule 12 (b)(6), Miss. R. Civ. P. On February 24, 1987, the Circuit Court entered its order granting the motion and finally dismissing the complaint.
McFadden timely perfected an appeal to this Court where he charges as error the granting of the motion to dismiss.
The standards which a trial court must employ when considering a motion to dismiss under Rule 12 (b)(6) have become quite familiar. The well pleaded allegations of the complaint must be taken as true. See Marx v. Truck Renting & Leasing Association, 520 So.2d 1333, 1339 (Miss.1987). Those well in mind, together with any defense asserted in the motion to dismiss, the court should not grant the motion unless it appears beyond any reasonable doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Grantham v. Mississippi Department of Corrections, 522 So.2d 219, 220 (Miss. 1988); Lester Engineering Co., Inc. v. Richland Water & Sewer Dist., 504 So.2d 1185, 1187 (Miss.1987); Stanton & Associates, Inc. v. Bryant Construction Co., 464 So.2d 499, 505 (Miss. 1985); see also Estelle v. Gamble, 429 U.S. 97, 106, 97 S. Ct. 285, 50 L.Ed.2d 251, 261 (1976). We employ the same standard when on appeal we are asked to consider whether a trial court's granting a motion to dismiss may have been error.
Persons who have been convicted of crimes do not shed all of their legal rights at the jailhouse door. See, e.g., Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 50 L.Ed.2d 251 (1976); Gates v. Collier, 349 F. Supp. 881 (N.D.Miss.1972), aff'd 501 F.2d 1291 (5th Cir.1974). Alan McFadden entered the custody of the Mississippi Department of Corrections a well person and now he has tuberculosis. Implicit in his complaint is the notion that, although he has lawfully been deprived of his liberty, he had a right to be free from exposure to contagious or communicable diseases such as tuberculosis. He charges the several defendants with violations of various rules of the public law, both statutory and common law varieties. We consider his complaint as well under 42 U.S.C. 1983, though he has not the statute by name. Marx, 520 So.2d at 1339.
We analyze such a complaint by reference to familiar principles. In the case of each defendant we seek to identify the source of the duty said to have been owed the plaintiff and then determine the content of that duty, followed by inquiries into causation and damage. We, of course, consider defenses offered by the defendants, again identifying the source of any such defense and its content.
Because of the particular factual context of the present complaint, two general premises, so familiar that they are often taken for granted, need be stated. Our law does not require of a person performance of the impossible or even the practicably impossible. Indeed, we refuse to enforce some privately undertaken duties where they are subsequently seen to require the impossible. See Gulf & Ship Island Railroad Company v. Horn, 135 Miss. 804, 100 So. 381 (1924). Where a plaintiff suffers an injury which a defendant, as a practical matter, had no means of preventing, common sense suggests that the conduct of the defendant could not have been a proximate cause of the plaintiff's injuries.
In the present context, that these defendants, or some of them, may have had duties regarding the health of prison inmates, albeit duties of a preventive nature, does not mean that every prisoner who becomes ill has a right of recovery. We know that in society in general, and within prison populations in particular, some people are going to contract contagious diseases. These defendants, to the extent of their duty, are charged at most to do only that which they reasonably may, given the nature of the prison environment, the facilities and resources available to them. Cf. Hall v. Hilbun, 466 So.2d 856, 872 (Miss.1985).
Second, it does not follow from the existence of a statutory duty that breach gives rise to personal liability for monetary damages. In some cases, and without digression into general theory, breach may only give rise to the remedy of prospective injunctive relief. Compare Gates v. Collier, supra, with Bogard v. Cook, 586 F.2d 399 (5th Cir.1978). In the case of public officials, there are many occasions where breach of public duty may be remedied only by removal from office or at the polls.
It is too late to doubt that the government has an obligation to provide medical care for those whom it is punishing by imprisonment. In Estelle v. ...