United States District Court, S.D. Mississippi, Eastern Division
MEMORANDUM OPINION AND ORDER OF PARTIAL
Starrett, UNITED STATES DISTRICT JUDGE
matter is before the Court sua sponte. Pro
se Plaintiff Donald Connell Betts is a pretrial detainee
at the Forrest County Adult Detention Center, and he
challenges his conditions of confinement. The Court has
considered and liberally construed the pleadings. As set
forth below, Defendants Captain Rudders and Nurse Sky Johnson
filed this action on November 29, 2016. Defendants Captain
Rudders, Officer # C-47, Officer Brannon, and Officer Longino
are officers at the Forrest County Adult Detention Center,
where Betts is held. Nurse Sky Johnson is a nurse there.
Finally, Ms. Geraldine, Ms. Sue, and Ms. Betty are alleged to
work in the jail's kitchen.
claims that he is a Muslim and, as such, cannot eat from a
tray that has pork on it. For this reason, he is listed on
the jail's “special diet list.” (Compl. at
5). He also alleges that he is a “brittle diabetic,
” for which he has medicine that must be taken with
food. (2d Mot. to Am. at 1).
to Betts, on November 9, 2016, Officers Brannon and # C-47
refused to acknowledge Betts's religious diet, even
though he was on the list. Apparently Betts was unable to eat
or take his medication. Again on December 27, Betts was given
breakfast with pork sausage. Ms. Betty told him to
“take it or leave it, ” and Longino and Brannon
wrote down that Betts refused breakfast. Id. He
claims he was again unable to take his medicine, because he
had no food. He also accuses the cooks-Ms. Geraldine, Ms.
Sue, and Ms. Betty-of “knowingly violat[ing his] right
to a pork free diet.” (Resp. at 1).
filed this action, pursuant to 42 U.S.C. § 1983,
accusing Defendants of subjecting him to cruel and unusual
punishment and violating his right to practice his religion.
In addition, he “feel[s] that [Johnson] was acting on
retaliatory motive for [Betts's] previous
Prison Litigation Reform Act of 1996, applies to prisoners
proceeding in forma pauperis in this Court. The
statute provides in part, “the court shall dismiss the
case at any time if the court determines that . . . the
action . . . (i) is frivolous or malicious; (ii) fails to
state a claim on which relief may be granted; or (iii) seeks
monetary relief against a defendant who is immune from such
relief.” 28 U.S.C. § 1915(e)(2)(B). The statute
“accords judges not only the authority to dismiss a
claim based on an indisputably meritless legal theory, but
also the unusual power to pierce the veil of the
complaint's factual allegations and dismiss those claims
whose factual contentions are clearly baseless.”
Denton v. Hernandez, 504 U.S. 25, 32 (1992).
“[I]n an action proceeding under [28 U.S.C. §
1915, a federal court] may consider, sua sponte, affirmative
defenses that are apparent from the record even where they
have not been addressed or raised.” Ali v.
Higgs, 892 F.2d 438, 440 (5th Cir. 1990).
“Significantly, the court is authorized to test the
proceeding for frivolousness or maliciousness even before
service of process or before the filing of the answer.”
Id. The Court has permitted Betts to proceed
in forma pauperis in this action. His
Complaint is subject to sua sponte dismissal under
others, Betts sues Rudders and Johnson. Betts alleges simply
that Captain Rudders and “Nurse Sky Johnson violated my
8th amendment right by subjecting me to cruel and
unusual punishment. I also feel that [Johnson] was acting on
retaliatory motive for my previous complaint.” (Resp.
at 1). This is the extent of the allegations against these
two Defendants, despite Betts being given the opportunity to
Betts cursorily accuses Rudders and Johnson of violating the
Eighth Amendment, Betts provides no factual allegations to
suggest how these two Defendants did so or that they were
personally involved in his alleged plight in any way. The
same holds true for the attempted retaliation claim against
Johnson. Because no facts are given against her, the Court is
left to guess in what manner she allegedly wronged Betts.
fails to state a claim against Rudders and Johnson upon which
relief may be granted. They are dismissed with prejudice. The
remainder of the case shall proceed at this time. IT IS
THEREFORE ORDERED AND ADJUDGED that, for the reasons stated
above, Defendants Captain Rudders and Nurse Sky Johnson are
DISMISSED WITH PREJUDICE for failure to state claims against
them upon which relief could be granted. Plaintiff is