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