United States District Court, S.D. Mississippi, Northern Division
P. JORDAN III CHIEF UNITED STATES DISTRICT JUDGE.
Leonard Brown brings this suit under state law and 42 U.S.C.
§ 1983 for an alleged sexual assault and related
offenses he suffered while incarcerated. The case is before
the Court on two motions. First, Defendants Marshall Turner
and Jacquelyn Banks, in their official and individual
capacities, filed a Motion to Dismiss Based on Eleventh
Amendment Immunity, State Law Immunity[, ] and Qualified
Immunity . That motion is denied without prejudice as to
the retaliation claims but is otherwise granted. Second,
Defendant Jim Hood, Attorney General of the State of
Mississippi, filed a Motion to Dismiss for Lack of Subject
Matter Jurisdiction . His motion is granted.
a post-conviction state inmate, says that “Officer
Lucker” sexually assaulted him on July 24, 2015, while
Brown was housed at the South Mississippi Correctional
Institute (“SMCI”). After that, Defendants
allegedly denied Brown's requests for medical care and
then retaliated against Brown for complaining about the way
he had been treated.
filed this lawsuit against Hood, Turner, Banks, and others on
January 23, 2017. In it, he asserts § 1983 claims for
violation of his rights under the First, Fourth, Eighth, and
Fourteenth Amendments to the United States Constitution as
well as state-law tort claims. Brown also seeks equitable
relief, including a declaration that Defendants violated his
rights and an injunction prohibiting future enforcement of
the inmate exception to the Mississippi Tort Claims Act
(“MTCA”). Miss. Code Ann. § 11-46-9(1)(m).
Hood, Turner, and Banks moved to dismiss the claims against
them, and the issues they raised have been fully briefed.
motion under Federal Rule of Civil Procedure 12(b)(1)
“challenge[s] the subject matter jurisdiction of the
district court to hear a case.” Ramming v. United
States, 281 F.3d 158, 161 (5th Cir. 2001). Lack of
subject-matter jurisdiction may be found based on: “(1)
the complaint alone; (2) the complaint supplemented by
undisputed facts evidenced in the record; or (3) the
complaint supplemented by undisputed facts plus the
court's resolution of disputed facts.” Id.
“[T]he party asserting jurisdiction”-here, the
plaintiff-“bears the burden of proof that jurisdiction
does in fact exist.” Id.
considering a motion under Rule 12(b)(6), the “court
accepts ‘all well-pleaded facts as true, viewing them
in the light most favorable to the plaintiff.'”
Martin K. Eby Constr. Co. v. Dall. Area Rapid
Transit, 369 F.3d 464, 467 (5th Cir. 2004) (quoting
Jones v. Greninger, 188 F.3d 322, 324 (5th Cir.
1999) (per curiam)). But “the tenet that a court must
accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions. Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). To overcome a Rule 12(b)(6) motion, a plaintiff must
plead “enough facts to state a claim to relief that is
plausible on its face.” Twombly, 550 U.S. at
570. “Factual allegations must be enough to raise a
right to relief above the speculative level, on the
assumption that all the allegations in the complaint are true
(even if doubtful in fact).” Id. at 555
(citations and footnote omitted).
Turner and Banks
and Banks seek dismissal on three grounds. They say that the
Eleventh Amendment bars claims asserted against them in their
official capacities; the inmate exception of the MTCA bars
all state-law claims; and qualified immunity precludes the
federal claims against them in their individual capacities.
The Court will address each argument in turn.
Eleventh Amendment provides: “The Judicial power of the
United States shall not be construed to extend to any suit in
law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or
Subjects of any Foreign State.” U.S. Const. amend. XI.
The Supreme Court has interpreted the amendment “to bar
citizens from suing their own states as well as other
states.” United States v. Tex. Tech Univ., 171
F.3d 279, 289 (5th Cir. 1999). Claims against officials in
their official capacities are “treated as suits against
the state.” Hafer v. Melo, 502 U.S. 21, 25
(1991). So the Eleventh Amendment bars the official-capacity
claims against Turner and Banks. See Kentucky v.
Graham, 473 U.S. 159, 166 (1985).
is, however, an exception to sovereign immunity first
recognized in Ex parte Young. 209 U.S. 123 (1908).
That exception allows a plaintiff to sue a state official in
his or her official capacity for prospective relief from an
ongoing violation of federal law. See Va. Office for
Protection & Advocacy v. Stewart, 563 U.S. 247, 255
(2011) (citing Verizon Md. Inc. v. Pub. Serv. Comm'n
of Md., 535 U.S. 635, 645 (2002); Ex parte
Young, 209 U.S. 123).
says the Ex parte Young exception applies here
because “[a]s long as he is incarcerated at SMCI and
the officers who threatened him are present, there is a
continuing likelihood that he will request reassignment to
another prison or seek a remedy which he alleges will be
denied by the defendants who will retaliate against
him.” Pl.'s Mem.  at 11-12. This argument would
not save Brown's claims for monetary damages based on
past violations, so those claims are dismissed as to Turner
and Banks in their official capacities.
to prospective relief for ongoing federal offenses, Turner
and Banks correctly observe that Brown's Complaint
alleges only violations that occurred in the past and
“fails to allege that the violations are
ongoing.” Defs.' Reply  at 3. Indeed the only
declaratory relief Brown seeks in his Complaint is a judgment
declaring that Defendants' past acts
“violated” his rights. See Compl.  at
18-19. This form of declaratory relief, and the alleged past
violations of federal law Brown asserts, are not what Ex
parte Young addresses. See Papasan v. Allain,
478 U.S. 265, 277-78 (1986) (“Young has been
focused on cases in which a violation of federal law by a
state official is ongoing as opposed to cases in which
federal law has been violated at one time or over a period of
time in the past . . . .”).
leaves Brown's prayer for an injunction precluding the
state from enforcing the MTCA's inmate exception.
See Compl.  at 19. But to assert that claim
against Turner and Banks in their official capacities, Brown
must show that they “have some enforcement connection
with the challenged statute.” Okpalobi v.
Foster, 244 F.3d 405, 415 (5th Cir. 2001). And Brown
must further show that Turner and Banks have
“demonstrated [a] willingness . . . to enforce the
statute.” Id. at 417.
issue, Brown offers nothing more than the conclusory
allegation that Turner and Banks “act in concert with
the Mississippi Attorney General in enforcing the
MTCA.” Pl.'s Mem.  at 13. But Turner and Banks
are both prison officials working within the Mississippi
Department of Corrections; they do not enforce the MTCA's
inmate exception. The Eleventh Amendment bars all
official-capacity claims against Turner and Banks.
and Banks say they are immune from suit for alleged
violations of state law under the MTCA's inmate
exception, which provides:
A governmental entity and its employees acting within the
course and scope of their employment or duties shall not be
liable for any claim:
 Of any claimant who at the time the claim arises is an
inmate of any detention center, jail, workhouse, penal farm,
penitentiary or other such institution, regardless of whether
such claimant is or is not an inmate of any detention center,
jail, workhouse, penal farm, penitentiary or other such
institution when the claim is filed[.]
Miss. Code Ann. § 11-46-9(1)(m).
face, the statute provides Turner and Banks immunity from
Brown's state-law claims against them. But Brown says
that the Court should refuse to enforce the inmate exception
as it “violates [his] federal and state due process
rights.” Pl.'s Mem.  at 13-14. In his
Complaint, he also argues that the inmate exception violates
the remedy clause ...