United States District Court, S.D. Mississippi, Southern Division
ROBERT WADE PLUMIER, as Son and Personal Representative of the Wrongful Death Beneficiaries of Robert Wayne Plumier, Deceased, and ESTATE OF ROBERT WAYNE PLUMIER, Deceased PLAINTIFFS
MISSISSIPPI DEPARTMENT OF CORRECTIONS, et al. DEFENDANTS
OPINION AND ORDER GRANTING  MOTION TO DISMISS AND
DISMISSING PLAINTIFFS' CLAIMS AGAINST DEFENDANTS
MISSISSIPPI DEPARTMENT OF CORRECTIONS, SOUTH MISSISSIPPI
CORRECTIONAL INSTITUTION, JACQUELYN BANKS, MARSHALL TURNER,
AND BRENDA SIMS
SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE
THE COURT is the Motion  to Dismiss filed by Defendants
Mississippi Department of Corrections, South Mississippi
Correctional Institution, and Jacquelyn Banks, Marshall
Turner, and Brenda Sims, in their individual and official
capacities. After due consideration of the record and
relevant legal authority, the Court finds that the Motion
 to Dismiss should be granted, and Plaintiffs' claims
against Defendants Mississippi Department of Corrections,
South Mississippi Correctional Institution, and Jacquelyn
Banks, Marshall Turner, and Brenda Sims in their official
capacities should be dismissed without prejudice for lack of
subject-matter jurisdiction. Plaintiffs' claims against
Jacquelyn Banks, Marshall Turner, and Brenda Sims in their
individual capacities should be dismissed with prejudice.
to the First Amended Complaint , in April 2012, Robert
Wayne Plumier (“Mr. Plumier”) was arrested and
detained by an unnamed law enforcement agency. 1st Am. Compl.
 at 5. While the record is unclear as to the nature of the
crime with which Mr. Plumier was charged, the parties do not
dispute that Mr. Plumier was ultimately convicted of some
crime and incarcerated in the custody of the Mississippi
Department of Corrections (“MDOC”). After Mr.
Plumier was sentenced, he was transferred to the South
Mississippi Correctional Institution (“SMCI”),
which is a facility of the MDOC. Id. Plaintiffs
allege that Defendant Wexford Health Sources, Inc.
(“Wexford”) was contracted by the MDOC and/or
SMCI to provide medical services to inmates housed at that
his confinement at SMCI, at some point in or before early
October 2014, Mr. Plumier began experiencing severe stomach
pains and swelling in the abdomen. Id. Mr. Plumier
allegedly sent several written requests to SMCI employees
notifying them of the severity of his symptoms, but SMCI
employees allegedly ignored his requests for medical care and
failed to provide him with any medical treatment.
Id. at 5-6.
October 6 or 7, 2014, Mr. Plumier was released from SMCI and
transported to Biloxi, Mississippi. Id. at 7.
Plaintiffs assert that Mr. Plumier was discharged from SMCI
by Defendants in order to conceal the nature of his health
condition and lack of treatment, and in order to avoid having
to treat Mr. Plumier. Id. at 8.
he was still suffering from severe abdominal pains, Mr.
Plumier immediately went to Biloxi Regional Hospital in
Biloxi, Mississippi, where he was admitted and diagnosed
“with a history of hepatitis C with liver cirrhosis and
liver failure with fluid overload with abdominal
swelling.” Id. at 7. According to Plaintiffs,
a chest x-ray revealed findings of congestive heart failure
with pulmonary edema. Id. Mr. Plumier died on
October 27, 2014, due to multi-organ failure. Id.
August 31, 2017, Plaintiffs Robert Wade Plumier, as son and
personal representative of the wrongful death beneficiaries
of Mr. Plumier, and the Estate of Mr. Plumier, filed a
Complaint  in this Court, followed by a First Amended
Complaint  on September 21, 2017. The First Amended
Complaint  asserts claims under 42 U.S.C. §§
1983, 1985, and 1986 against Defendants MDOC, SMCI, Wexford,
and Jacquelyn Banks (“Ms. Banks”), Marshall
Turner (“Mr. Turner”), and Brenda Sims
(“Ms. Sims”) in their official and individual
One and Two advance claims for violations of the Eighth
Amendment to the United States Constitution based upon the
purported denial of medical care to Mr.
Plumier. 1st Am. Compl.  at 12-17. Count Three,
which is erroneously numbered Count Six, raises civil
conspiracy and neglect claims under 42 U.S.C. §§
1985 and 1986. Id. at 17-19.
SMCI, Ms. Banks, Mr. Turner, and Ms. Sims have filed a Motion
 to Dismiss based upon Eleventh Amendment immunity, state
law immunity, and qualified immunity. Defendants ask the
Court to dismiss all claims asserted against them with
prejudice. Mot.  at 2.
response, Plaintiffs concede that the claims against MDOC,
SMCI, and Ms. Banks, Mr. Turner, and Ms. Sims in their
official capacities should be dismissed. Pls.' Mem. 
at 5. As for the § 1983 claims against Ms. Banks, Mr.
Turner, and Ms. Sims in their individual capacities,
Plaintiffs argue that the individual Defendants are not
entitled to qualified immunity. Id. at 6-19. To the
extent the Court determines that more detailed allegations
are necessary to survive the Motion to Dismiss, Plaintiffs
“concede to a dismissal, without prejudice, until such
time as the facts and circumstances become known to the
Plaintiffs regarding the specific testimony of the individual
Defendants.” Id. at 12-13; see also
Id. at 13, 14. However, at the end of their Memorandum,
Plaintiffs state that in the event the Court finds that the