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Witherspoon v. Morris

United States District Court, N.D. Mississippi, Greenville Division

March 23, 2017



          Sharion Aycock U.S. DISTRICT JUDGE

         Desmond Witherspoon, an inmate in the custody of the Mississippi Department of Corrections (“MDOC”), is proceeding pro se and in forma pauperis in this action under 42 U.S.C. §1983, alleging that employees at the Mississippi State Penitentiary at Parchman (“Parchman”) failed to protect him from harm. Warden Timothy Morris, Deputy Warden Andru Mills, and Lieutenant Tony Foster (“Defendants”[1" name="FN1" id="FN1">1]) have moved for summary judgment. Witherspoon has failed to reply to Defendants' motion. Having reviewed the submissions and arguments of the parties, as well as the applicable law, the Court finds that summary judgment should be denied in part and granted in part.

         Summary Judgment Standard

         Summary judgment is proper only when the pleadings and evidence, viewed in a light most favorable to the nonmoving party, illustrate that no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. Fed.R.Civ.p. 56(a) &(c); Celotex Corp. v. Catrett, 17');">477 U.S. 317, 322-23 (1986). A fact is deemed “material” if “its resolution in favor of one party might affect the outcome of the lawsuit under governing law.” Sossamon v. Lone Star State of Tex., 16');">560 F.3d 316, 326 (5th Cir. 2009) (quotation omitted). Once the motion is properly supported with competent evidence, the nonmovant must show that summary judgment is inappropriate. Morris v. Covan World Wide Moving, Inc., 144 F.3d 377');">144 F.3d 377, 380 (5th Cir. 1998); see also Celotex, 477 U.S. at 323. The nonmovant cannot rely upon “conclusory allegations, speculation, and unsubstantiated assertions” to satisfy his burden, but rather, must set forth specific facts showing the existence of a genuine issue as to every essential element of his claim. Ramsey v. Henderson, 286 F.3d 264, 269 (5th Cir. 2002) (citation omitted); Morris, 144 F.3d at 380. If the “evidence is such that a reasonable jury could return a verdict for the nonmoving party, ” then there is a genuine dispute as to a material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If no evidence of contradictory facts is presented, however, the Court does not assume that the nonmovant “could or would prove the necessary facts.” Little v. Liquid Air Corp., 1069');">37 F.3d 1069, 1075 (5th Cir. 1994).

         Plaintiff's Allegations

         As stated in his Complaint and clarified at his Spears [2] hearing, Witherspoon attests that the facts are as follows:

         In April 2015, Witherspoon, a former Vice Lords gang member, was transferred from the Central Mississippi Correctional Facility to Parchman's 29-H building. Building 29-H contains an upper tier and a bottom tier, and Witherspoon was housed in cell 5, located on the lower tier. He noticed that the doors to various individual cells in 29-H building had broken locks, allowing the inmates to enter and exit their cells with only very minimal force needed to disengage the lock. Defendants were aware that the inmates exited their cells at will due to the broken locks, but they merely verbally reprimanded the inmates who jimmied their cell doors rather than repair the locks.

         After his arrival at Parchman, Witherspoon noticed that Gangster Disciples gang members who referred to themselves as “Stalkers” were housed on both tiers. At a previous facility, Witherspoon had been involved in a physical altercation with members of this gang, and as a result of the altercation, he was required to seek medical treatment. He voiced concern to Warden Morris about being around these gang members and verbally requested that Warden Morris move him. The Warden stated he could not move Witherspoon, citing a lack of available space, and he advised Witherspoon to contact correctional staff if he had any trouble.

         On July 9, 2015, at around 5:30 p.m., with the entire bottom tier on recreation time, Witherspoon was outside of his cell when three Stalkers, two from the bottom tier and the “leader” from the top tier, attacked him with homemade knives. Inmates housed on the top tier were supposed to be locked in their cells at the time. Witherspoon was stabbed approximately fifteen times before the Stalkers made him get into his cell, shower, and remove his bloody clothes. The Stalkers attempted to stop Witherspoon's bleeding so that the assault would not be detected, and they essentially held Witherspoon hostage in his cell for several hours. Witherspoon's cellmate was present during this period of time, he was helping the Stalkers make sure Witherspoon stayed quiet. Eventually, Officer Phillips came to the cell and asked what the inmates were doing. Witherspoon, afraid of further attack, did not make a plea for help, though he had a bandage on his face that might have been visible to Officer Phillips. When the Stalkers informed Officer Phillips that everything was alright and that they would “take care” of him the following day, Phillips “turned a blind eye” and left without obtaining assistance for Witherspoon.

         When employee shift change occurred at 12:00 a.m. on July 10, 2015, the Stalkers went back to their individual cells, and Witherspoon's injuries were discovered. His cellmate had fled the cell by the time help arrived for Witherspoon. Witherspoon was transported to the hospital and treated. He subsequently identified his assailants, and an investigation was opened into the attack against him.

         Defendants' Allegations

         Defendants assert that Witherspoon's claims against them in their official capacities must be dismissed pursuant to the doctrine of sovereign immunity, while claims against them in their individual capacities must be dismissed for failure to state an actionable claim. They otherwise note that the assault against Witherspoon was investigated by the Corrections Investigation Division (“CID”), and that it was determined that the matter would be submitted to the District Attorney for prosecution of the inmates who assaulted Witherspoon. See, e.g., Doc. #41-1.

         Sovereign Immunity

         Defendants have asserted the defense of sovereign immunity as to the claims against them in their official capacities. The Eleventh Amendment to the United States Constitution bars suits by private citizens against states in federal courts unless the particular state has waived its immunity, or Congress has abrogated the state's sovereign immunity. U.S. Const. Amend. XI; Perez v. Region 20 Educ. Service Ctr., 18');">307 F.3d 318, 326 (5th Cir. 2002). Mississippi has not waived its sovereign immunity. See Miss. Code Ann. § 11-46-5(4) (“Nothing contained in this chapter shall be construed to waive the immunity of the state from suit in federal courts guaranteed by the Eleventh Amendment to the Constitution of the United States.”). Additionally, “MDOC is considered an arm of the State of Mississippi” and is immune from suit. See Williams v. Miss. Dep't of Corr., No. 3:12 ...

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