United States District Court, S.D. Mississippi, Northern Division
ORDER OF PARTIAL DISMISSAL
P. Jordan III CHIEF UNITED STATES DISTRICT JUDGE
pro se prisoner case is before the Court, sua sponte, for
consideration of dismissal. Plaintiff Tommiel QuenPonta
Claiborne 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, Defendant
Lieutenant Struting is dismissed.
alleges that during July, 2017, he was housed in the lockdown
Security Threat Group Unit at East Mississippi Correctional
Facility. Claiborne claims that Defendant Unit Manager Donald
ordered that sprinklers be turned on in the unit for testing.
Defendant Officer McWilliams then informed Claiborne and the
other inmates and directed them to move their property to
their beds. Claiborne allegedly asked McWilliams to allow him
out of the cell, with his legal papers, before the sprinklers
came on because the “legal papers [were] very important
. . . to prove [his] innocen[ce].” Compl.  at 4.
Particularly, Claiborne contends that he had an affidavit
from a witness that Claiborne believes exculpates him.
According to the pleadings, McWilliams refused, because
Defendant Captain Jones ordered that the prisoners would not
be moved from their cells during the testing. Claiborne also
alleges that Defendant Lieutenant McClaren was present and
did not enforce the MDOC policy that would have allowed for
the removal of Plaintiff's property. Plaintiff claims he
moved his legal work to his bed, but the papers were still
soaked, and he is now unable to present them in court.
Claiborne claims that the sprinklers also sprayed him, his
cell, and belongings, including his bed.
alleges that he complained to Defendant Warden F. Shaw and
Donald after the incident but the legal papers have not been
initiated this action on September 12, 2017, pursuant to
§ 1983, asserting claims for a deprivation of property
without due process and cruel and unusual punishment, under
the Fifth and Eighth Amendments. Claiborne also appears to be
claiming a denial of access to courts. Besides the above
Defendants, Claiborne sues Lieutenant Struting, even though
Claiborne does not think Struting was there. Rather,
Claiborne sues Struting, because, “if he played apart .
. . then he is . . . responsible. . . . I did not see Lt.
Struting non[e] that day but this does not means [sic] he
didn't play as Lt. [sic] of this shift as well as Lt.
McClaren.” Pl.'s 2nd Resp. . Claiborne asks for
the return of his legal work.
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 Claiborne to proceed
in forma pauperis in this action. The Complaint is
subject to sua sponte dismissal under § 1915.
sues Lieutenant Struting, among others, alleging the loss of
legal papers and cruel and unusual punishment. Claiborne
admits however that he does not know if Struting was involved
but is suing him only because he may have been a shift
is no vicarious or respondeat superior liability of
supervisors under section 1983.” Rios v. City of
Del Rio, 444 F.3d 417, 425 (5th Cir. 2006). Rather, the
supervisor must either be personally involved in the
violation or otherwise have caused the violation.
Id. All that is alleged against Struting is that he
is a Lieutenant and that he may have been a shift commander
that day. Claiborne admits that he does not know whether
Struting was involved in the incident or not. This fails to
state a claim against Struting upon which relief can be
IS THEREFORE ORDERED AND ADJUDGED that, for the
reasons stated above, Defendant Lieutenant Struting is
DISMISSED WITHOUT PREJUDICE for failure to
state a claim against him upon which relief could be granted.
The remainder of the case shall proceed.