United States District Court, S.D. Mississippi, Northern Division
MEMORANDUM OPINION AND ORDER
KEITH BALL, UNITED STATES MAGISTRATE JUDGE.
the Court is the Motion for Summary Judgment  filed by
Defendants James Fillyaw, Marshall Fisher, Ron King, Brian
Ladner, Jamaal Murriel, Kevin Nunn, and Richard
Pennington in this action brought pursuant to 42
U.S.C. § 1983. Plaintiff has responded to the Motion.
prior orders, the Court dismissed Plaintiff's claims
against other Defendants. See , Text Only Order
11/30/16, , , . Thus, at this juncture,
Plaintiff's only remaining claim is that Defendants
failed to protect him from harm on or about September 28,
2015, when he was allegedly raped by another inmate at the
Central Mississippi Correctional Facility
(“CMCF”). For the reasons outlined in this
Memorandum Opinion and Order, the Court finds that
Defendants' motion for summary judgment should be granted
in part and denied in part.
omnibus hearing, Plaintiff testified to the facts supporting
his claim against the remaining Defendants. In sum, Plaintiff
alleges that while he was incarcerated at CMCF, Defendants
failed to protect him when, despite his protective custody
status and despite his warning to authorities that an inmate
posed a threat to him, the inmate subsequently attacked and
raped him. Named as Defendants are Marshall Fisher, former
Commissioner of the Mississippi Department of Corrections
(“MDOC”); Ron King, Superintendent of CMCF; James
Fillyaw, Deputy Warden; Jamaal Murriel, officer; Kevin Nunn,
officer; and Brian Ladner, Warden.
to Plaintiff, the following sequence of events led up to the
alleged attack on September 28, 2015. About one month prior
to the alleged attack, Plaintiff, a protective custody inmate
since 2006, wrote a letter to Defendants King, Ladner, and
Fillyaw complaining that officers allowed general population
inmates and protective custody inmates out of their cells at
the same time.  at 9, 11. Thereafter, he submitted an
emergency Administrative Remedy Program (“ARP”)
grievance protesting this situation. Id.; [101-1] at
6. Former Defendant Pennington rejected the grievance as not
meeting the criteria for an emergency ARP grievance. [101-1]
a general population inmate, known to Plaintiff by the
nickname, “Grim, ” kicked contraband (tobacco and
marijuana) under Plaintiff's cell door. Plaintiff kicked
the contraband back to Grim, and Grim then accused him of
stealing some of the contraband and told Plaintiff,
“I'm going to get you.” Id. at 7, 9.
verbally reported the incident to Defendants Fillyaw,
Murriel, and Nunn. Id. at 7-8. In response to
Plaintiff's verbal complaints about Grim, Defendants
Fillyaw, Murriel, and Nunn placed a protective custody sign
on Plaintiff's cell door. Id. at 9. For a few
days thereafter, Plaintiff chose to stay in his cell rather
than exit when allowed. Id. However, a couple of
weeks later, Grim withdrew his threat to Plaintiff.
Id. Specifically, Grim told Plaintiff,
“Don't even worry about it, ” and “I
ain't even going to mess with you.” Id.
After Grim told him that, Plaintiff did not think Grim posed
a threat to him anymore. Id. at 11-12. Plaintiff
testified that, about one week later, he exited his zone for
recreation in a “day room, ” which was on the
floor below Plaintiff's cell and near Grim's cell.
Id. at 10-11. When Plaintiff exited his cell, he did
not know that Grim's cell was open. Id. at 11.
After Plaintiff arrived in the area, Grim, while standing at
the open door of his cell, told Plaintiff to come to his
cell. Id. at 10. Plaintiff testified that Grim told
him, “I want to talk to you, ” and that “he
was going to get me high.” Id. Plaintiff then
voluntarily walked to and entered Grim's cell.
Id. Plaintiff asserts that, once he was inside the
cell, Grim held him at knifepoint and raped him. Id.
at 10-11. Plaintiff admits that, instead of entering
Grim's cell, he could have chosen to return to his cell.
Id. at 12. But, Plaintiff maintains that general
population inmates should have been locked down when
protective custody inmates were out of their cells for
recreation. Id. at 11.
of the Federal Rules of Civil Procedure states, in part, that
A[t]he court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.@
Fed.R.Civ.P. 56(a). An issue of fact is genuine if the
"'evidence is sufficient to permit a reasonable
factfinder to return a verdict for the nonmoving
party.'" Lemoine v. New Horizons Ranch and
Center, 174 F.3d 629, 633 (5th Cir. 1999)(quoting
Colston v. Barnhart, 146 F.3d 282, 284 (5th Cir.),
cert. denied, 525 U.S. 1054 (1998)). Issues of fact
are material if Aresolution of the issues might affect the
outcome of the suit under governing law."
Lemoine, 174 F.3d at 633. The Court does not,
"however, in the absence of any proof, assume the
nonmoving [or opposing] party could or would prove the
necessary facts." Little v. Liquid Air Corp.,
37 F.3d 1069, 1075 (5th Cir. 1994)(en banc)(emphasis
omitted). Moreover, the non-moving party's summary
judgment burden is not satisfied by "conclusory
allegations" or by "unsubstantiated
assertions," or by only a "scintilla" of
evidence. Little, 37 F.3d at 1075.
Official Capacity Claims
has sued all Defendants in their official capacities. The
Court finds that Plaintiff's claims for monetary relief
are barred by the Eleventh Amendment and must be dismissed.
The “Eleventh Amendment precludes suits in federal
court against state officials named in their official
capacities because such suits are essentially claims against
the State.” Dandridge v. Mississippi, Civil
Action No. 2:08-cv-229-KS-MTP, 2009 WL 4940105, at *6
(S.D.Miss. Dec. 14, 2009)(Starrett, J.). “The United
States Supreme Court has applied the Eleventh Amendment
prohibition against suit [against non-consenting states] to
actions against state officials sued in their official
capacity.” Waldrop v. Puckett, No.
4:97-cv-42-B-B, 1998 WL 378308, at *2 (N.D. Miss. Apr. 3,
1998)(Biggers, J.)(citing Kentucky v. Graham, 473
U.S. 159, 169 (1985)).
Plaintiff's claims for injunctive relief against
Defendants in their official capacities are hereby dismissed.
In his complaint, Plaintiff failed to identify any particular
injunctive relief he desires. Moreover, Plaintiff has been
moved to another facility, and he has failed to allege any
ongoing violations of federal law to enjoin. See Green v.
Mansour, 747 U.S. 64, 71 (1985)(“Because ...