United States District Court, N.D. Mississippi, Greenville Division
ORDER REGARDING MOTION FOR SUMMARY JUDGMENT
Sharion Aycock U.S. DISTRICT JUDGE
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
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.
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
stated in his Complaint and clarified at his Spears
hearing, Witherspoon attests that the facts are as follows:
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.
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
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
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.
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.
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.