United States District Court, S.D. Mississippi, Northern Division
MANAGEMENT & TRAINING CORPORATION, et al. DEFENDANTS
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT MANAGEMENT & TRAINING
CORPORATION'S  MOTION FOR SUMMARY JUDGMENT, AND
DENYING AS MOOT PLAINTIFF'S  SUPPLEMENTAL MOTION TO
SULEYMAN OZERDEN, UNITED STATES DISTRICT JUDGE.
THE COURT are the Motion for Summary Judgment  filed by
Defendant Management & Training Corporation, and the
Supplemental Motion to Strike  filed by Plaintiff J.M.
These Motions are fully briefed. After due consideration of
the Motions , , the record, and relevant legal
authority, the Court finds that MTC's Motion for Summary
Judgment  should be granted in part and denied in part,
and that Plaintiff's Motion to Strike  should be
denied as moot. Plaintiff's state-law claim against MTC
for respondeat superior or vicarious liability will proceed
Relevant Factual Background
Management & Training Corporation (“MTC”) is
a private prison operator given a contract by the Mississippi
Department of Corrections (“MDOC”) for the
management and oversight of the Walnut Grove Correctional
Facility (“WGCF”). Am. Comp.  at 2. MTC took
over operation of WGCF from GEO Group, Inc.
(“GEO”). The parties apparently do not dispute
that MTC began operating WGCF on June 18, 2012. See
MTC's Mem.  at 2; Pl.'s Mem.  at 11, 19.
Marjorie Brown (“Ms. Brown”) is a regional vice
president at MTC for Region 4, which includes Mississippi,
and her responsibilities include supervision of activities
within Region 4. Ms. Brown's Aff. [81-18] at
the time period relevant to this litigation, Plaintiff J.M.
(“Plaintiff”) was an MDOC inmate incarcerated at
WGCF. Plaintiff was housed, along with his cellmate R.H., in
cell # 32 on Unit 8 Bravo (“Unit 8B”).
See MTC's Mem.  at 3; Pl.'s Mem.  at
11. Plaintiff claims that while he was incarcerated at WGCF
on March 7, 2015, Defendant D.H.,  an MTC correctional officer,
sexually assaulted Plaintiff and his cellmate. See
Pl.'s Dep.  at 35-36.
At around 7:40 a.m. on March 7, 2015, offender R.H. placed a
call to the PREA hotline which was available at Walnut Grove,
where he reported that he had been sexually assaulted by
D.H.. [sic] J.M. made a similar call at 7:52 a.m. At
approximately 8:10 a.m., correctional officer Tene Wilson
received a call from Mary Jones, J.M.'s sister, reporting
that J.M. and R.H. had been sexually assaulted by a
correctional officer the prior evening.
Mem.  at 5-6; see also Pl.'s Mem.  at 12
(agreeing with these facts).
The Events of March 6 - 7, 2015
night of March 6 - 7, 2015, D.H. was assigned to work in Zone
8D of WGCF. See Mar. 6, 2015, Master Roster [93-6]
at 1. Plaintiff was housed in Zone 8B. See Incident
Detail [93-2] at 6. Sergeant Annie Morgan (“Sergeant
Morgan”) was assigned to work in Zone 8B. Mar. 6, 2015,
Master Roster [93-6] at 1. Captain Karen Moorehead
(“Captain Moorehead”), who was the highest
ranking officer at WGCF during the shift the night Plaintiff
was allegedly sexually assaulted, testified in her deposition
that the facility was short on staff that evening. Capt.
Moorehead's Dep. [93-7] at 22, 37. The record reflects
that six officers had called in sick, two officers were late,
one officer was at training, and one was on extended sick
leave. Mar. 6, 2015, Master Roster [93-6] at 1-2.
officers were not allowed to change their assigned post
without permission, Capt. Moorehead's Dep. [93-7] at
25-26, and supervisors would check that officers were
following the post orders throughout the shift by making
rounds or by telephoning the pod or tower officer,
id. at 27-28. For officers to switch posts would be
a violation of MTC's policy and procedure. Id.
at 43. Captain Moorehead agreed that one reason for the
checks by supervisors was to ensure that officers were at
their assigned posts. Id. at 44.
to the post orders or roster, Sergeant Morgan was assigned to
Zones 8B and 8C. Capt. Moorehead's Dep. [93-7] at 88.
Captain Moorehead testified that if Sergeant Morgan needed
assistance during the shift, she would have received it from
another pod 8 correctional officer, such as D.H.,
id. at 89, and she would have had the authority to
request D.H. to enter Zone 8B, id.
logbook reflects that on the night in question, Correctional
Officer R. Harris (“Officer Harris”) took post in
Zone 8D, where the post orders had D.H. scheduled to work.
Id. at 50. Sergeant Morgan was assigned to Zone 8B,
where Plaintiff was housed, but D.H. instead took post in
that zone. Id. at 52. Captain Moorehead did not know
why the change in staff had occurred. Id. at 54.
Captain Moorehead testified that this could have been a
mistake or a supervisor could have granted permission to
change posts; otherwise, such a change would have been a
violation of policies and procedures. Id. at 50-54.
Tiffany Gill (“Officer Gill”), the tower or pod
control officer in Housing Unit 8 that night, testified that
Unit 8 was understaffed, and based upon her reading of the
roster for that evening, Officers Harris and D.H. were the
only two assigned to the entire Unit. Officer Gill's Dep.
[93-8] at 33-35, 66. Sergeant Morgan would not have actually
taken a post in any of the Housing Unit 8 zones, so Officers
Harris and D.H. would have had to cover more than one zone
either together or separately, and according to Officer Gill,
it would not have been out of the ordinary for D.H. to
conduct a security check in Zone 8B. Id. at 34-35,
66, 68; see also Sergeant Morgan's Dep. [93-10]
at 9 (“As a sergeant, . . . I just go through different
units, and if they need help, I'll help them
to Captain Moorehead, every time a person entered or exited a
housing unit, the pod officer should have documented the
event in the logbook. Id. at 30-31. The logbook for
the evening of March 6, 2015, does not reflect that
supervisors performed security checks in Housing Unit 8,
which meant either the checks did not occur, or if they did
occur, they were not logged. Id. at 47-49. Captain
Moorehead testified that either scenario would have been a
violation of policies and procedures. Id. While
failure to log was a violation of company policy, Captain
Moorehead acknowledged it did occur on occasion. Id.
Moorehead testified that Officer Gill had the ability to
remotely open the electronic locks on the cell doors, if her
control panel was operating properly. Capt. Moorehead's
Dep. [93-7] at 55-56. If the panel was functioning correctly,
Officer Gill would also receive an alert if a cell door was
opened because a light on a particular number cell should
flash red. Id. at 56-57. Monitoring the lights was
one of the duties of the control officer. Id. at 58.
Gill testified that if a cell door was opened,
“that's if it's not rigged with something, a
red light is going to come on in the tower right above that
door.” Officer Gill's Dep. [93-8] at 16.
“[U]nless they are serving paperwork or medical,
issuing medication, or a captain or lieutenant, ” no
door should be opened, as jailers were not permitted to enter
a cell at night in a non-emergency situation. Id. at
16-17. If Officer Gill saw a red light, she was to call the
officer to inquire why the cell door was open. Id.
at 17. If Officer Gill did not receive a response, she was
instructed to call the captain or the lieutenant.
Moorehead testified that the lights in the control tower
“didn't work all the time;” at times, the
light would “just pop on and then it will pop off . . .
.” Capt. Moorehead's Dep. [93-7] at 57. She agreed
when asked that there were incidents reported at WGCF where
correctional officers were improperly entering the cells of
inmates, which is why supervisors conducted checks during
shifts. Id. at 60. Officer Gill did not
“recall anybody entering a cell on [her] watch”
on the night of the incident. Officer Gill's Dep. [93-8]
at 26. Plaintiff's cell at WGCF was “[r]ight in
front of [Officer Gill]” in the control pod.
Id. at 61.
Subsequent prosecution of D.H.
April 2015, D.H. was charged with three counts of engaging in
a sexual act with an inmate in violation of Mississippi Code
§ 97-3-104. See General Affidavits [93-2] at
18, 29, 31; Warrants [93-2] at 19, 30, 32. MTC terminated
D.H.'s employment on or about May 11, 2015. See
Notice of Caution [81-14] at 2; Request to Terminate [81-14]
at 3. On November 18, 2016, a grand jury in Leake County,
Mississippi, returned an Indictment against D.H. for two
counts of violating Mississippi Code § 97-3-104(1) as to
J.M. and R.H. Indictment [93-4] at 1-2.
November 19, 2015, Plaintiff filed a Complaint  against
MTC, asserting claims pursuant to 42 U.S.C. § 1983,
along with claims under state law for negligent and/or
grossly negligent hiring and supervision, and for respondeat
superior. Compl.  at 4-6. With leave of Court, Plaintiff
filed his First Amended Complaint  on April 4, 2016,
against MTC and individual Defendant D.H. The First Amended
Complaint  advances claims pursuant to 42 U.S.C. §
1983 against MTC and D.H. for violating his rights under
Eighth and Fourteenth Amendments to the United States
Constitution. As for MTC, Plaintiff claims his rights were
violated due to MTC's policies, customs, and practices of
failing to protect inmates, failing to train and supervise
employees, and failing to adequately staff WGCF. Id.
at 5. Plaintiff advances similar claims against MTC under
Mississippi law. Id. at 4-6.
MTC's Motion for Summary Judgment 
filed its Motion for Summary Judgment  on March 24, 2017,
arguing that it is considered a municipality for purposes of
constitutional analysis, and that it cannot be held
vicariously liable for constitutional violations of its
employees. MTC's Mem.  at 8. According to MTC,
Plaintiff cannot show the existence an official policy or
custom which promoted, authorized, or failed to prevent D.H.
from sexually assaulting Plaintiff, defeating any
constitutional claim against MTC. Id. at 8-10, 13.
MTC points to the record evidence and states that
“before March 7, 2015, no one - prisoner or employee -
made any accusation against former correctional officer D.H.
for any sexual assault.” Id. at 11. MTC
maintains that it “had in place a multitude of policies
and procedures to prevent the very incident that took place,
” that “it had no actual or constructive notice
of any prior or potential sexual assaults by D.H.”
Id. at 12.
contends that it is not vicariously liable for
Plaintiff's state-law claims because D.H. was not acting
in the course and scope of his employment with MTC,
id. at 13-14, and because it “had in place
policies and procedures to prevent its employees from
engaging in sexual relationships with inmates, ”
including “compliance with PREA [Prison Rape
Elimination Act, 42 U.S.C. § 15601, et seq.]
and other measures, ” id. at 15. MTC asserts
that Plaintiff's allegations constitute criminal acts
which are necessarily beyond the course and scope of
D.H.'s employment with MTC. Id. at 16-17.
MTC argues that Plaintiff's punitive damages claim should
be dismissed, as there is no vicarious liability for punitive
damages and the facts of this case do not demonstrate the
sort of gross negligence, recklessness, or maliciousness on
MTC's part that would merit an award of punitive damages.
Id. at 22-24.
responds that “WGCF has a particularly troublesome past
and was the subject of a class action filed in 2010 by
inmates alleging that the prison failed to protect inmates
from harm, specifically sexual abuse by guards.”
Pl.'s Mem.  at 10 (citing Depriest v. Walnut
Grove Corr. Auth., 3:10-cv-663-CWR-FKB (S.D.Miss.)).
Plaintiff cites the “Federal Consent Decree which was
in effect from March 26, 2012 until the prison was closed in
September 2016.” Id. Although MTC did not take
over WGCF until June 2012, Plaintiff maintains that MTC was
bound by the terms of the Consent Decree. Id.
MTC had unwritten policies, customs and practices of failing
to adequately train, supervise, investigate, and discipline
its correctional officers, failing to adequately staff the
prison with trained and qualified guards, failing to prevent
improper relationships between guards and inmates, and
allowing the prison to be understaffed.
Id. at 13. According to Plaintiff, his
“constitutional causes of action are essentially
MTC's failure to protect inmates, including Plaintiff,
and MTC's failure to train, supervise, and discipline its
correctional officers.” Id. at 15. Plaintiff
argues that Depriest demonstrates that “MTC
was not only objectively aware of prior sexual incidents and
other acts of violence against inmates, MTC subjectively was
aware of a substantial risk of harm to inmates and
disregarded that risk.” Id. at 17.
agrees with MTC's legal argument on the state-law
negligence claims that MTC cannot be liable under the
doctrine of respondeat superior for D.H.'s alleged
actions. Id. at 26. Instead, Plaintiff posits that
MTC is liable under respondeat superior or vicarious
liability “due to the negligent and grossly negligent
actions of other MTC employees in
not preventing the assault.” Id. (emphasis in
original). “Plaintiff never sought to hold MTC liable
for [D.H.]'s intentional acts, just the negligence of
other MTC employees who failed to prevent the sexual
assault.” Id. Plaintiff claims that, on the
night he was allegedly assaulted, Housing Unit 8 was
understaffed, supervisors failed to make rounds after
midnight in violation of MTC policy, and D.H. and another
employee switched assignments in violation of policy.
Id. at 29-30.
concedes that there is no evidence to show that MTC
negligently hired or retained [D.H.]; however, there is
sufficient evidence to show that MTC negligently supervised
him.” Id. at 30-31. Plaintiff maintains that,
while the issue of punitive damages is not yet ripe for
consideration, punitive damages are appropriate against MTC
pursuant to Mississippi Code § 11-1-65. Id. at
Plaintiff's Supplemental Motion to Strike 
support of its Motion for Summary Judgment, MTC submitted the
Affidavit of Marjorie Brown [81-18], which discussed
MTC's policies and training of its officers, including
D.H. On April 21, 2017, Plaintiff filed a Motion  to
Strike this Affidavit or, in the Alternative, to Depose
5, 2017, the Court granted Plaintiff's Motion  in
part and permitted Plaintiff to depose Marjorie Brown on the
substance of her Affidavit, but declined to strike it. Order
 at 8-9. After Ms. Brown was deposed, Plaintiff filed
his Supplemental Motion  to Strike paragraphs 5 and 10
of the Affidavit.
to Plaintiff, “Ms. Brown's deposition makes it
clear that she lacks the personal knowledge required in order
for her to testify about the type of training or quality of
training purportedly given to [D.H.] or any other MTC
employee.” Pl.'s Mem.  at 1. Plaintiff seeks
to strike paragraphs 5 and 10 of Ms. Brown's Affidavit
“to the extent she attempts to describe [D.H.]'s
training or the training of any other MTC employee, ”
because Ms. Brown purportedly lacks first-hand knowledge to
give this testimony. Id. at 3.
responds that Ms. Brown's Affidavit “merely
confirm[s] what is in the [business] records, ” which
she authenticated pursuant to Federal Rule of Evidence 803,
and that any objection goes to the weight rather than the
admissibility of the statements. MTC's Mem.  at 1-2.
“Brown's affidavit - including the portions
Plaintiff seeks to strike - summarized voluminous business
records, including MTC policies and procedures and
[D.H.]'s personnel records.” Id. at 3.
According to MTC, “[a]s a corporate Vice President, Ms.
Brown is competent to review business records and give
testimony as to the training [D.H.] received and the quality
of that training.” Id.
November 16, 2010, certain plaintiffs filed a “class
action . . . on behalf of the teenagers and young men who
[were] imprisoned in the Walnut Grove Youth Correctional
Facility (‘WGYCF') . . . .” Depriest v.
Walnut Grove Correctional Authority, No.
3:10cv663-CWR-FKB, Compl.  at 2 (S.D.Miss. Nov. 16,
2010). At the time, GEO Group, Inc., managed the
WGYCF. Id. at 7. The Depriest complaint
charged that “staff members abuse[d] their power by
engaging in sexual relationships with the youth in their
care, ” id. at 2, and that “[s]ome
correctional officers and nurses have sex with youth at
WGYCF” in violation of Mississippi Code §
97-3-104, id. at 14.
March 20, 2012, the United States Department of Justice,
Civil Rights Division (the “DOJ”), issued a
report on its investigation of the WGYCF. See
Depriest, No. 3:10cv663-CWR-FKB, Report [74-1] at 4-47.
The DOJ “found that staff sexual misconduct with youth
in their custody occurred on a monthly basis, at a minimum,
” and that “WGYCF is aware of the pervasiveness
of staff sexual misconduct, but has failed to take any steps
to prevent it beyond terminating staff caught in the
act.” Id. at 10.
March 26, 2012, the Court entered an Order Approving
Settlement with an attached executed Consent Decree, which
required MDOC to “ensure that there are sufficient
numbers of adequately trained direct care and supervisory
staff, and sufficient numbers of professional staff.”
Depriest, No. 3:10cv663-CWR-FKB, Order  at 1-8,
Consent Decree [75-3] at 1, 15.
entry of the Consent Decree, MDOC contracted with MTC for the
operation of WGCF commencing in June 2012. Depriest,
No. 3:10cv663-CWR-FKB, Order  at 5 n.1. In a June 11,
2015, Order, the Court did not mention any specific instances
of sexual assault having occurred since MTC began operating
the prison, other than the one that is the basis of the
present lawsuit. See Id. at 21 n.19. The Court did,
however, find that the evidence before it
paints a picture of a facility struggling with disorder,
periodic mayhem, and staff ineptitude which leads to
perpetual danger to the inmates and staff. The dangers that
inmates face are not simply limited to assaults by other
inmates but also from the guards. The Monitors'
Reports validate that the sometimes chaotic conditions are
more than mere snapshots of disruption, as they span a time
period of almost two years. Each of these reports, with the
exception of the third and most recent, conveys findings of
noncompliance with the core requirement of “reasonably
safe living conditions.”
Id. at 12 (emphasis added).
Court, however, recognized the remedial measures taken by MTC
to address some of the problems, including removal of the
“close custody inmate population, ” replacement
of security cameras, decreased inmate population, and the
installation of a body scanner and a perimeter netting.
Id. at 17-18. MTC had made “significant
advancements with staffing, ” and although maintaining
a sufficient number of adequately trained staff was an
ongoing problem at the facility, there had been “a
significant improvement in the number of assaults that occur
at the facility.” Id. at 18. On September 15,
2016, MDOC closed Walnut Grove, which rendered the Consent
Decree inoperative. Depriest v. Walnut Grove
Correctional Authority, No. 15-60488, Op. at 2
(5th Cir. Sept. 27, 2016).
Plaintiff's Supplemental Motion to Strike  is
upon a review of Ms. Brown's Affidavit, MTC's Motion
for Summary Judgment, and the record as a whole, the Court
finds that the result would not change regardless of whether
the Court considers paragraphs 5 and 10 of Ms. Brown's
Affidavit. Plaintiff's Supplemental Motion to Strike
 will be denied as moot.
MTC's Motion for Summary Judgment should be granted