United States District Court, N.D. Mississippi, Greenville Division
ORDER AND MEMORANDUM OPINION
SHARION AYCOCK UNITED STATES DISTRICT JUDGE
Demarco Wilkins filed his pro se Prisoner Complaint  on
September 28, 2017, asserting various claims against the
Mississippi Department of Corrections, Commissioner Pelicia
Hall, Earnest Lee, Timothy Morris, Jamile Henry, and Betty
Crawford. Plaintiff later retained Counsel and filed an
Amended Complaint  incorporating the facts and counts
from his first Complaint . Now before the Court are two
Motions to Dismiss [27, 39] requesting dismissal of all the
Plaintiff's claims. Also before the Court for
consideration is a Report and Recommendation  entered by
the Magistrate Judge assigned to this case. Briefing is
complete and the issues are ripe for review.
and Procedural History
Wilkins is an inmate in the custody of the Mississippi
Department of Corrections. Wilkins alleges that while in
custody he was approached by members of the Vice Lords gang
and was asked to stab a member of their rival gang, the
Gangster Disciples. According to Wilkins, he refused and as a
result, was threatened by the Vice Lords. Wilkins further
alleges that he contacted Officer Jamie Henry to seek help
and protection and asked to see the Captain. Wilkins claims
that Officer Henry responded that she would notify someone,
but Wilkins never received any response to his request and
day of the attack, members of the Vice Lords began gathering
in front of the zone proximate to Wilkins' cell which was
within the view of a security tower that Officer Crawford was
assigned to. According to Wilkins, Officer Crawford was not
in the tower when a member of the Vice Lords who also worked
as a tier-worker entered the tier and turned off the zone
lights. Wilkins claims that 16 gang members began beating him
with a broom stick, kicking, stomping, and burning his body.
There were also cuts on his face and neck. The Plaintiff was
left unconscious and bloody in his cell. The Plaintiff claims
that he was injured due to a lack of protection by the prison
staff after he requested help. He claims to have sustained
permanent injuries due to the negligence of the Defendants.
alleges the following five counts against the Defendants in
his Amended Complaint: Inadequate supervision of close
custody offenders; Failure to provide proper housing for
offenders to prevent escape or injury from; Failure to
protect; Negligent, grossly negligent, and wanton failure in
hiring and monitor, train, and supervise officers involved;
and Violation of federal due process, equal protection, civil
rights law under 42 U.S.C. § 1983 and 28 U.S.C. §
1343, et. al.
pending before the Court are two dispositive motions: A
Motion to Dismiss  filed by Defendants Earnest Lee and
Timothy Morris, and a Motion to Dismiss  filed by
Defendants Pelicia Hall and the Mississippi Department of
Corrections. The Magistrate Judge assigned to the case
entered a Report and Recommendation  to which neither
basis of the defendants' Motions to Dismiss are Rules
12(b)(1) and 12(b)(6) of the Federal Rules of Civil
Procedure. “When a Rule 12(b)(1) motion is filed in
conjunction with a Rule 12(b)(6) motion, . . . courts must
consider the jurisdictional challenge first.” McCasland
v. City of Castroville, Tex., 478 Fed.Appx. 860 (5th Cir.
2012) (per curiam) (citing Wolcott v. Sebelius, 635 F.3d 757,
762 (5th Cir. 2011); Morgan v. Kingdom of Saudi Arabia, 27
F.3d 169, 172 (5th Cir. 1994)). This “prevents a court
without jurisdiction from prematurely dismissing a case with
prejudice.” Id. at 860-61 (quoting Ramming v.
United States, 281 F.3d 158, 161 (5th Cir. 2001) (per
curiam)); Hitt v. City of Pasadena, Tex., 561 F.2d 606, 608
(5th Cir. 1977) (per curiam). Accordingly, the Court first
addresses the jurisdictional issues under Rule 12(b)(1).
courts have original subject matter jurisdiction only where a
question of federal law is involved or where there is
diversity of citizenship between parties and the amount in
controversy exceeds $75, 000, exclusive of interest and
cost.” Kokkonen v. Guardian Life Ins. Co. of Am., 511
U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994).
Wilkins alleges jurisdiction based on a federal question. In
his Amended Complaint , Wilkins claims that the
Defendants collectively violated his constitutional rights
under the Equal Protection Clause, and the Due Process Clause
pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1343.
While the complaint lists several alleged constitutional
violations, it does not offer facts outlining each
Defendant's conduct in the allegedly violative actions
when he was attacked. Further, Wilkins does not specifically
allege which defendant's conduct contributed to which of
his injuries. The Amended Complaint  “re-alleges
and incorporates all prior paragraphs, averments, and
statements” in addition to adopting claims established
in the original Complaint . This lack of specificity and
connectivity is problematic.
to State a Claim
defendants alternatively argue that Wilkins failed to state a
claim under Rule 12(b)(6) of the Federal Rules of Civil
Procedure. See Fed.R.Civ.P. 12(b)(6). It is the purpose of a
Rule 12(b)(6) motion to test the formal sufficiency of the
statement for relief. See Murray v. Amoco Oil Co., 539 F.2d
1385 (5th Cir. 1976). “A legally sufficient complaint
must establish more than a ‘sheer possibility' that
the plaintiff's claim is true.” Ashcroft v. Iqbal,
556 U.S. 662, 678-79, 129 S.Ct. 937, 173 L.Ed.2d 868 (2009).
“It need not contain detailed factual allegations, but
it must go beyond labels, legal conclusions, or formulaic
recitations of the elements of a cause of action.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955,
167 L.Ed.2d 929 (2007). In other words, a
“[plaintiff's] complaint therefore must contain
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.” Id.
at 570, 127 S.Ct. 1955.
asserts several claims against the Defendants collectively.
Counts one through five include claims of negligence in
regard to the Defendants alleged failure to supervise,
protect, train, monitor, provide proper housing, and
violations of federal due process, equal protection, and
civil rights under §§ 1983 and 1343. Some if not
all of the Defendants are state employees. As a result, the
Defendants claim in their Motions that they are entitled to
qualified immunity. “Qualified Immunity shields
officials from money damages unless a plaintiff pleads facts
showing (1) that the official violated a statutory or
constitutional right, and (2) the right was clearly
established at the time of the challenged conduct.”
Ashcroft, 563 U.S. at 7335, 129 S.Ct. 937 (2011). But,
qualified immunity unlike the 11th Amendment is a
defense for state officials acting in their individual
capacities. See 42 U.S.C.A. § 1983. The Plaintiff does
assert claims against state officials but fails to
distinguish whether the claims are filed against them in
their individual or official capacities. See Michael v.
Boutwell, No. ...