United States District Court, N.D. Mississippi, Greenville Division
ORDER ON MOTION TO DISMISS
JANE M. VIRDEN, Magistrate Judge.
This matter is before the court on Defendant's Motion to Dismiss Based on Eleventh Amendment Immunity and Qualified Immunity . Upon due consideration of the parties' submissions and the relevant law, the court finds the motion should be granted in part and denied in part for the reasons hereafter discussed.
Allegations by Plaintiff and Defendants
Plaintiff Dewayne Orr is a prisoner of the State of Mississippi, currently housed at Wilkinson County Correctional Center in Woodville, Mississippi. Am. Compl.  at 2. On December 9, 2012, Plaintiff was a state prisoner housed at the Mississippi State Penitentiary in Parchman, Mississippi. Id. On that day, at approximately 12:19p.m., Plaintiff alleged he was going to eat when he heard Lt. Robert Sturdivant, Correctional Officer Lewis and Correctional Officer Tyler make the statement, "they was ready for whatever today." Id. When he looked at the officers, Plaintiff asserted Correctional Officer Lewis said, "What you looking at?" Id. Plaintiff made no response. Id.
After lunch, Plaintiff was returning to Protective Custody Unit 29-G. Id; see also Dep. of Dewayne Orr [45-1] at 3. Before reaching 29-G, Lt. Robert Sturdivant, Correctional Officer Lewis and Correctional Officer Tyler allegedly told Plaintiff to go in the back to Lt. Robert Sturdivant's office. Am. Compl.  at 2. Plaintiff contends Lt. Sturdivant closed the door behind him after he entered the office. Correctional Officers Lewis and Tyler asked Plaintiff "what he was trying to do." Id. To which, Plaintiff claims he stated, "I was trying to go home." Id. Correctional Officer Lewis then said, "So you think you hard, " and Plaintiff allegedly did not respond. Id. Plaintiff alleges Correctional Officer Lewis, Correctional Officer Tyler and Lt. Sturdivant struck him in the face and back of the head multiple times causing him to fall to the floor. Id. Then, the officers stomped his head and face multiple time with their boots. Id. Plaintiff allegedly was then pulled up from the floor and Lt. Sturdivant put his hand around Plaintiff's neck and told Plaintiff that if he said anything or wrote to anyone, the officers would kill him. Id. Plaintiff further contends Correctional Officer Kisha Davis was aware of this situation but did not report it. Id. at 3.
Later that evening, Plaintiff fell on the sidewalk by the dining hall from an alleged seizure. Id. An ambulance took Plaintiff to Unit 42 for medical care. Id. When asked about the injuries to his face, Plaintiff told the doctor of the assault and asked to talk to the Corrections Investigation Division (CID). Id. The doctor called a CID representative, and an investigator later came and took photographs of the Plaintiff's injuries, which included physical injuries to Plaintiff's head, jaw, cheek bones, mouth and teeth. Id. Plaintiff asserts the doctor asked him if he was aware of an alleged boot print on the left side of his face. Id. Plaintiff gave and signed a statement to the CID. Id. On December 10, 2012, the doctor returned to check on Plaintiff and ordered x-rays of the left side of Plaintiff's face. Id. When taking x-rays, Plaintiff told an unknown correctional officer he feared returning to 29-G unit because he believed Lt. Sturdivant, Correctional Officer Lewis and Correctional Officer Tyler would assault him again. Id. CID moved Plaintiff to Unit 42 where he remained for approximately two (2) weeks before he was transferred to the Wilkinson County Correctional Center. Id.
In their depositions, Defendants Lt. Sturdivant, Correctional Officer Lewis and Correctional Officer Tyler deny any kind of altercation or incident with Plaintiff on December 9, 2012. See Exh. C to Pl.'s Resp. to Mot. to Dismiss [45-3] at 3; Exh. D to Pl.'s Resp. to Mot. to Dismiss [45-4] at 2; Exh. A to Def.'s Reply to Mot. to Dismiss [47-1] at 2. Although, the officers agree if the incident occurred as described, they would be in violation of the Mississippi Department of Corrections standard operating procedure pertaining to the use of force. See Exh. B to Pl.'s Resp. to Mot. to Dismiss [45-2] at 2; Exh. C to Pl.'s Resp. to Mot. to Dismiss [45-3] at 2-3; Exh. D to Pl.'s Resp. to Mot. to Dismiss [45-4] at 2. Defendants further assert Plaintiff's injuries are consistent with having a seizure and falling down. Def.'s Reply to Mot. to Dismiss  at 4.
Plaintiff filed this action on July 26, 2013, as a pro se prisoner complaint. See Prisoner Compl. . On January 7, 2014, Plaintiff retained counsel, and counsel filed an amended complaint a week later. See Not. of Att'y Appearance  and Am. Compl. . The amended complaint seeks monetary damages, alleging two counts under 42 U.S.C. § 1983 for violations of Eighth Amendment Cruel and Unusual Punishment and Fourteenth Amendment Due Process. Am. Compl.  at 7-10. It is brought against: Mississippi Department of Corrections, Lt. Robert Sturdivant, Correctional Officer Tyler, Correctional Officer Lewis, Correctional Officer Kisha Davis, Warden Faye Noel, Deputy Warden Reginald Steward, Associate Warden Darlester Foster, Deputy Warden Marshal Turner, Superintendent Ernest Lee, and John and Jane Does. All claims against persons are brought in individual and official capacities. Now, Defendants move to dismiss based on Eleventh Amendment Sovereign Immunity and Qualified Immunity.
Standard of Review
In their motion, Defendants seek dismissal of Plaintiff's claims based on Eleventh Amendment Immunity pursuant to Rule 12(b)(1) - lack of subject matter jurisdiction. Mem. in Supp. of Def.'s Mot. to Dismiss  at 1. Defendants seek dismissal of the individual capacity claims based on qualified immunity and assert dismissal of those claims is appropriate under Rule 12(b)(6) for failure to state a claim. Id. With respect to the qualified immunity defense, both Plaintiff's response and Defendants' reply to the motion include exhibits, referencing depositions of Plaintiff and Defendants as well as Plaintiff's medical records.
Federal Rule of Civil Procedure 12 provides:
If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.
FED. R. CIV. P. 12(d) (emphasis added). The Fifth Circuit has explained:
[u]nder Rule 56, it is not necessary that the district court give ten days' notice after it decides to treat a Rule 12(b)(6) motion as one for summary judgment, but rather after the parties receive notice that the court could properly treat such a motion as one for summary judgment because it has accepted for consideration on the motion matters outside the pleadings, the parties ...