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Smith v. Management and Training Corp.

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

November 3, 2017




         This matter is before the Court sua sponte. Pro se Plaintiff Torey Cortez Smith is incarcerated with the Mississippi Department of Corrections (“MDOC”), and he brings this action under 42 U.S.C. § 1983, challenging the conditions of his confinement. The Court has considered and liberally construed the pleadings. As set forth below, Defendants MDOC, State of Mississippi, Sergeant Lisa Everett, and East Mississippi Correctional Facility (“EMCF”) are dismissed.


         Smith filed this action on July 26, 2017. At the time, he was incarcerated at EMCF. It is a private prison run by Defendant Management and Training Corporation (“MTC”) on behalf of Defendant MDOC. Defendants Sergeants Lisa Everett and Traylor, Warden Frank Shaw, Officer Walker, and Sergeant Dukes are employed at that prison. Besides these Defendants, Smith also sues the State of Mississippi and EMCF. Generally, Smith complains of an attack by another inmate, alleged excessive force, retaliation, denial of medical treatment, and alleged harassment.

         Smith first alleges that, on May 15, 2017, Officer Walker allowed an inmate onto Smith's housing zone, even though that inmate had previously been kicked off the zone. The inmate allegedly punched Smith and chased him around the zone with a knife. Sergeant Dukes is said to have seen that the inmate had a knife.

         Next, Smith contends that on May 31, 2017, he asked Sergeant Traylor if he could be moved because of problems with another inmate. Traylor ordered Smith to move from the zone door, and when he would not, Traylor allegedly responded by throwing Smith to the floor and choking him. Plaintiff maintains that he was not being combative. He also alleges that Traylor wrote him a Rule Violation Report when Smith reported the incident to a nurse.

         Besides the alleged physical force, on June 18, 2017, Smith claims that Sergeant Everett discriminated against his sexuality by making “hateful” remarks to him. (Resp. at 1). These include unspecified jokes about his sex, “I hate your kind. . . . My son isn't like you, ” “You get on my nerves, ” and, “You[']r[e] messy, and I hate you.” (Notice of Lis Pendens at 5); (Compl. at 5). Smith also contends that she has retaliated against him for having filed a grievance against her about this. Specifically, he contends she told him she had “nothing for” him and was “going to get” him. Id.

         Finally, Smith alleges that he was being denied medical treatment for a chronic health issue. He claims he was told that he could not get treatment because of the cost.

         Smith brings this action under § 1983. He sues MTC under a theory of respondeat superior. It is not clear if he also asserts a direct claim of denial of medical care against MTC. He also asserts claims for failure to protect, excessive force, and retaliation. Warden Shaw is said to have “upheld” these alleged wrongs. (Resp. at 1).


         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 Smith to proceed in forma pauperis in this action. The Complaint is subject to sua sponte dismissal under § 1915.

         Smith brings this action under § 1983 for declaratory, injunctive, and monetary relief. Among others, he sues MDOC, the State, Sergeant Lisa Everett, and EMCF.

         MDOC ...

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