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Brady v. Mississippi Department of Corrections

United States District Court, S.D. Mississippi, Northern Division

April 20, 2017

JAMES BRADY, # 89409 PLAINTIFF
v.
MISSISSIPPI DEPARTMENT OF CORRECTIONS, MARSHALL FISHER, BRIAN LADNER, JOANN SHIVERS, SEAN SMITH, LIEUTENANT CARLOS FUNCHES, and RON KING DEFENDANTS

          MEMORANDUM OPINION AND ORDER OF PARTIAL DISMISSAL

          CARLTON W. REEVES UNITED STATES DISTRICT JUDGE

         This 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.

         BACKGROUND

         Brady 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 Division.

         Brady 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.

         According 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. [10] 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.

         Besides 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 attack.

         On 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.

         DISCUSSION

         The 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.

         Among others Brady sues MDOC, Fisher, Shivers, Funches, and King, in his official capacity.

         Marshall Fisher, Joann Shivers, and Carlos Funches

         Brady voluntarily dismisses Fisher, Shivers, and Funches. They are ...


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