United States District Court, S.D. Mississippi, Northern Division
MEMORANDUM OPINION AND ORDER OF PARTIAL
CARLTON W. REEVES UNITED STATES DISTRICT JUDGE
matter is before the Court sua sponte. Pro se Plaintiff James
Brady is incarcerated with the Mississippi Department of
Corrections (“MDOC”), and he brings this action
under 42 U.S.C. § 1983 and state law, challenging the
conditions of his confinement. The Court has considered and
liberally construed the pleadings. As set forth below,
Defendants MDOC, Marshall Fisher, Joann Shivers, Lieutenant
Carlos Funches, and Ron King are dismissed.
is currently housed at Central Mississippi Correctional
Facility. Defendant Ron King is the Superintendent, Brian
Ladner is the Warden, and Defendant Joann Shivers is an
Associate Warden at the prison. Defendant Lieutenant Carlos
Funches was employed there as a correctional officer.
Defendant Marshall Fisher is the former Commissioner for the
Mississippi Department of Corrections, and Defendant Sean
Smith is supervisor of MDOC's Corrections Investigative
alleges that on the morning of April 1, 2016, K-9 officers
conducted a shakedown of his housing zone. After it was over,
three inmates, who were gang members, allegedly called Brady
a snitch and beat him. One of them punched Plaintiff with a
lock. Plaintiff was able to leave the zone and report what
had happened. This was around 10:00 a.m.
to Plaintiff, he was then stitched up in the infirmary.
Around 1:00 p.m. he was interviewed by Ladner and Smith.
Ladner had Brady placed on another zone, where he was again
allegedly attacked by inmates belonging to the same gang as
the three from the first attack. Brady claims that
“Ladner knew of the gang problem but refuse[d] to
all[e]viate the problem.” (Resp.  at 2). Further,
Brady contends that he had “verbally requested to red
tag the individuals that beat him up. He made this request to
Warden Brian Ladner[, ] Sean Smith and in [Brady's]
request for administrative remedy which was answered by
Superintendent Ron King and Joann Shivers, ” but
Brady's request was denied. Id. at 3.
the denial of red tags, Brady complains about a loss of
property. Specifically, he alleges that after the interview
with Ladner and Smith, Ladner sent Funches to retrieve
Brady's property from his old zone so it could be moved
with him. Brady purports that this property consisted of
various canteen items, two radios, state issued items, and
diabetic shoes. By this time, however, they had already been
allegedly stolen by the three inmates who had attacked him
that morning. Brady claims that Ladner and Smith would not
fill out an incident report, which prevented him from proving
the theft of his property in the administrative grievance,
referenced above. Brady also contends that MDOC failed to
immediately retrieve his property when he first reported the
December 12, 2016, Brady brought this action, under §
1983 and state law, claiming a failure to protect him and his
property. He claims that Ladner, Smith, and King, in his
official capacity, have failed to protect him from harm,
under the Eighth Amendment, and that Plaintiff's property
was lost as a result of failures to adhere to MDOC policy.
King is also sued, in his official capacity, for not
protecting the property. Brady seeks damages and for his
property to be replaced. Recently, Brady has moved to dismiss
Fisher, Shivers, and Funches.
Prison Litigation Reform Act of 1996, applies to prisoners
proceeding in forma pauperis in this Court. One of
the provisions reads, “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 Brady to proceed in
forma pauperis in this action. The Complaint is subject
to sua sponte dismissal under § 1915.
others Brady sues MDOC, Fisher, Shivers, Funches, and King,
in his official capacity.
Fisher, Joann Shivers, and Carlos Funches
voluntarily dismisses Fisher, Shivers, and Funches. They are