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J.H. v. Fisher

United States District Court, S.D. Mississippi, Northern Division

March 20, 2019

J.H., PLAINTIFF
v.
MARSHALL FISHER, ET AL., DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          F. KEITH BALL, UNITED STATES MAGISTRATE JUDGE.

         Before the Court is the Motion for Summary Judgment [101] filed by Defendants James Fillyaw, Marshall Fisher, Ron King, Brian Ladner, Jamaal Murriel, Kevin Nunn, and Richard Pennington[1] in this action brought pursuant to 42 U.S.C. § 1983. Plaintiff has responded to the Motion.

         In its prior orders, the Court dismissed Plaintiff's claims against other Defendants. See [38], Text Only Order 11/30/16, [60], [63], [93]. 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.

         I. Facts

         At the 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.

         According 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. [1] 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] at 6.

         Subsequently, 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.

         Plaintiff 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.

         II. Relevant Standards

         Rule 56 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.

         III. Discussion

         A. Official Capacity Claims

         Plaintiff 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)).

         Likewise, 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 ...


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