Green et al v. Management & Training Corporation et al
Filing
90
ORDER granting in part and denying in part 78 Motion for Summary Judgment; granting 81 Motion for Extension of Time to File Response/Reply ; dismissing 84 Motion to Strike ; dismissing 87 Motion to Strike. Signed by District Judge Michael P. Mills on 08/05/2019. (rmw)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION
BRENDA GREEN, et al
VS.
PLAINTIFFS
CIVIL ACTION NUMBER 3:17-cv-149 MPM-JMV
MANAGEMENT AND TRAINING CORP., et al
DEFENDANTS
ORDER
This cause comes before the court on the motion of defendant Management and Training
Corp. (MTC) et al for summary judgment, pursuant to Fed. R. Civ. P. 56. Plaintiffs Brenda
Green et al have responded in opposition to the motion, and the court, having considered the
memoranda and submissions of the parties, concludes that the motion should be granted in part
and denied in part.
This is a wrongful death case, based on both federal claims asserted under 42 U.S.C. §
1983 and state law claims of negligence, arising out of the death of John Robert Green, III.
Green died of a heart attack on January 1, 2017 while incarcerated at the Marshall County
Correctional Facility (MCCF) operated by defendant. In its brief, defendant describes the facts
surrounding Green’s death as follows:
In the early morning hours of January 1, 2017, Green began having chest pains. At or
about 6:40 a.m., an unidentified offender signaled towards the watch tower that another
offender was having some sort of trouble. At 6:47 a.m., a Code Blue (a call for medical
help) was called for Bravo Dorm 2 where Green was housed. At about 6:51 a.m., MTC
employees responded to Green’s dorm where he was found sitting upright against his
bed. Ultimately, Green was carried out of the dorm on a stretcher, and taken to the
medical dorm. At roughly 6:57 a.m., a Code Green was called, and CPR and other life
saving measures were undertaken. By 7:10 a.m., MCCF officials called for an
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ambulance. The Med Stat ambulance arrived on the unit at 7:33 a.m. Green was deceased
when the ambulance arrived.
[Defendant’s brief at 2].
For their part, plaintiffs dispute many of defendants’ assertions regarding the response
times of prison employees, but, as discussed below, their evidence regarding the response time
issue has been rather heavily impeached by summary judgment evidence in this case. Perhaps as
a result of this impeachment evidence, plaintiffs assert in their brief that their “primary” claim
now relates to their allegation that MTC failed to adequately staff its prison at the time of
Green’s death. Plaintiffs assert that deliberate indifference and/or negligence by MTC in staffing
the prison resulted in employees discovering Green’s distress later than they otherwise would
have. Defendant has presently moved for summary judgment, arguing that no genuine issue of
fact exists regarding its liability in this case and that it is entitled to judgment as a matter of law.
This court will first address plaintiffs’ federal Eighth Amendment claims, as to which
they face a much more daunting burden of proof than with their state law negligence claims. It is
well settled that “[a]n inmate’s right to medical care is abridged if a prison official acts with
deliberate indifference to his medical needs, as deliberate indifference to an inmate’s serious
medical needs violates the Eighth Amendment’s prohibition against cruel and unusual
punishment.” Miller v. Hall, 2018 U.S. Dist. LEXIS 134135 at *10 (N.D. Miss 2018) (holding
that the prison guard’s actions did not amount to deliberate indifference because the guard did
not know of the inmate’s need for medical attention.) (citing Estelle v. Gamble, 429 U.S. 97,
103-04, 97 S. Ct. 285, 50 L.Ed. 2d 251 (1978)). In the Eighth Amendment context, the test for
establishing deliberate indifference is one of “subjective recklessness as used in the criminal
law.” Id. (citation omitted).
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Under the subjective recklessness standard, there is no liability under § 1983 unless the
plaintiff alleges facts which, if true, would demonstrate that a prison official (1) knew that the
inmate faced a substantial risk of serious harm; and (2) disregarded that risk by failing to take
reasonable measures to abate it. Id. (citation omitted). Where a plaintiff complains of a delay in
medical treatment, he must show deliberate indifference to serious medical needs that resulted in
substantial harm. Id. (citing Alderson v. Concordia Par. Corr. Facility, 848 F.3d 415, 422 (5th
Cir. 2017) and Easter v. Powell, 467 F.3d 459, 464 (5th Cir. 2006)). “Evidence of efforts by
prison staff to attend to the medical need will negate a finding of deliberate indifference.”
Jackson v. Cain, 864 F.2d 1235, 1246 (5th Cir. 1989). “Not all failure to provide care is
actionable, however, as negligent conduct by a prison official does not give rise to a
constitutional violation.” Id. (citing Daniels v. Williams, 474 U.S. 327, 106 S. Ct. 662, 88 L. Ed.
2d 662 (1986); Oliver v. Collins, 914 F.2d 56, 60 (5th Cir. 1990)).
While the Eighth Amendment standard is thus a stringent one, that is not the only, or
even the primary, obstacle to plaintiff’s federal claims in this case. As noted in the decisions
above, the typical Eighth Amendment claim deals with claims against specific state officers who,
the plaintiffs typically allege, were subjectively indifferent to the medical needs of a prisoner. In
this case, however, plaintiffs assert Eighth Amendment claims against MTC itself, and this
places an additional, and very heavy burden, upon them in this case. In their brief, plaintiffs
acknowledge that MTC is considered a “municipality” in the § 1983 context, which permits it to
take advantage of the highly rigorous “policy or custom” standard set forth by the U.S. Supreme
Court in Monell v. Dep’t of Soc. Serv., 436 U.S. 658, 694 (1978).
A municipality may only be held liable under § 1983 for violating a citizen’s
constitutional rights if “the governmental body itself ‘subjects’ [that] person to a deprivation of
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rights or ‘causes’ a person ‘to be subjected’ to such deprivation.” Connick v. Thompson, 131 S.
Ct. 1350, 1359 (2011). Governmental entities are “responsible only for [their] own illegal acts”
and are “not vicariously liable under § 1983 for [their] employees’ actions.” Id. Thus, there is no
respondeat superior liability under § 1983; rather, the key to municipal liability is
demonstrating that a deprivation of a constitutional right was inflicted pursuant to an official
policy or custom of the municipality in question. Monell v. Dep’t of Soc. Serv., 436 U.S. 658,
694 (1978). The alleged unconstitutional conduct asserted “must be directly attributable to the
municipality through some sort of official action or imprimatur.” Piotrowski v. City of R.H., 237
F.3d 567, 578 (5th Cir. 2001).
To establish constitutional liability against MTC, plaintiffs must establish (1) an official
policy or custom, of which (2) a policymaker can be charged with actual or constructive
knowledge, and (3) a constitutional violation whose “moving force” is that policy or custom.
Rivera v. R.H. Indep. Sch. Dist., 349 F.3d 244, 247-249 (5th Cir. 2003). A “policy or custom”
can be either (1) a policy statement, ordinance, regulation, or decision that is officially adopted
and promulgated by the municipality’s lawmaking officers or by an official to whom the
lawmakers have delegated policy-making authority; or (2) a persistent, widespread practice of
city officials or employees, which, although not authorized by officially adopted and
promulgated policy, is so common and well settled as to constitute a custom that fairly represents
municipal policy. McGregory v. City of Jackson, 335 Fed. App’x. 446, 448-449 (5th Cir. 2009).
Plaintiffs must also demonstrate a link between the policy and the constitutional
violation, and the policy must be maintained with “objective deliberate indifference” to a
constitutionally protected right. Lawson v. Dallas County, 286 F.3d 257, 263 (5th Cir. 2002). A
municipality acts with objective deliberate indifference if it promulgates a policy or custom
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despite the “known or obvious consequences that constitutional violations would result.”
Piotrowski, 237 F.3d at 567. Deliberate indifference of this sort is a stringent test, and “a
showing of simple or even heightened negligence will not suffice” to prove municipal
culpability. Id. at 579.
It is thus clear that plaintiffs face an exceedingly difficult legal burden in seeking to
establish Eighth Amendment liability against MTC, and this court does not believe that their
summary judgment briefing even comes close to meeting that burden. Indeed, in contending that
an MTC policy or custom resulted in the death of Green, plaintiffs’ entire argument is as follows:
Robyn Williams was deposed as the representative of MTC under Rule 30(b)(6).
She was asked to respond to the following question:
“What—what can you say about our paragraph 6, here, ‘Describe backup
measures, if any, which MTC employs routinely or otherwise to compensate for no-show
correctional officers’ since that seems to be a problem?
She answered:
A.
So it’s a matter of trying to get people to stay over from the previous shift and or
have other people come in if it’s—if it’s their day off and you can get ahold of them and
have them—have them come in.
Plaintiffs’Exh. “7”, Williams depo.Excerpts p.55, line 18-p,56, line 2.
That reply led to the following Q and A exchange:
Q.
Okay. So that would be the shift supervisors trying to arrange all of that?
A.
Yes.
Q.
Okay. What—what is your perception of the extent to which the staff was
effective or—or—what’s the word I’m looking for—whether the—the dorm was properly
staffed during these two shifts?
A.
Well, staffing, like we talked about earlier, is an ongoing issue trying to—just
trying to hire and keep enough people.
Q.
And that—that was true of that dorm that night?
A.
Yes.
Q.
Okay. And early morning?
A.
Yes.
Plaintiffs’Exh. “7”, Williams depo. Excerpts. p,56, lines 7-22.
Ms. Williams completely corroborates the deposition testimony of CO Phillips
about understaffing, shown above. Each prison shift begins a new frantic search for
personnel. Employees cannot get to their second shift on time because they have to wait
for shift supervisors to find someone to relieve them from the first shift. Apparently MTC
does not pay enough to keep employees, so they leave and those who are left are
burdened with double shifts, including back to back 16-hour shifts, according to CO
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Phillips, or being called in on their day off. MCCF is in constant turmoil. No wonder
CO Gray fell asleep. No wonder CO Gray ignored her subpoena. No wonder Mr. Green
was ignored for hours.
MTC’s first priority and first obligation as a private corporation is to satisfy its
investors, which is in conflict with and in this case takes precedence over the welfare of
the prisoners. MTC routinely understaffs its operations in order to keep payroll costs at a
minimum and put more money in its investors’ pockets. There is an inherent conflict
between the corporation’s first priority, investor profits, and the corporation’s
constitutional duty to tend to the serious medical needs of the prisoners. It is a for profit
business enterprise. Attention to those medical needs by the medical staff is wholly
dependent upon the correctional staff identifying the problem and alerting the medical
staff. Green, sadly, was a victim of that inherent conflict. He sat on the floor for hours,
gasping and holding his chest. Any alert corrections officer would see a need to alert
medical staff immediately.
MTC’s highest prison administrators are the decision-makers and policy-makers
who subordinate the welfare of the prisoners to investor profit. The Plaintiffs have
identified the policy or custom responsible for delay in assistance to Green. By routinely
understaffing the prison, the company is deliberately indifferent every day and every hour
of every day to its constitutional obligation to put the serious health and welfare needs of
its prisoners above profits. The profit motive results in understaffing which in turn puts
the inmates at risk in emergencies. It is the “moving force” which results in subpar
attention to the prisoners’ needs, including Green’s needs. The Plaintiffs submit that they
have established an unwritten custom or practice that was not formally written or
adopted, but that is a pervasive, long-standing practice that essentially has the force of
law. Sharp v. City of Houston, 164 F.3d 923, 936 (5th Cir. 1999).
[Plaintiff’s brief at 13-14].
Plaintiffs thus rely upon allegations of understaffing in asserting liability against MTC,
but they offer no authority suggesting that a prison’s generalized decisions about staffing levels
may establish subjective deliberate indifference under the Eighth Amendment, as to the claims of
a specific prisoner who asserts that his medical needs were not met. As quoted above, the only
decision cited by plaintiffs at all in this context is the Fifth Circuit’s decision in Sharp, which is a
sexual harassment case bearing no factual resemblance to this case whatsoever.
Once again, plaintiffs must establish that MTC knew that “the inmate” faced a substantial
risk of serious harm, which, in the court’s view, implies knowledge of a specific prisoner’s
medical needs and deliberate indifference to them. Moreover, in order to hold MTC liable for
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Green’s death, plaintiffs must establish that the conduct in question was the result of an official
policy or custom by the prison, and not simply that of one of its employees. If accepted by this
court, plaintiffs’ arguments in this case would seemingly lead to a finding of Eighth Amendment
violations for the claims of a broad range of prisoners who allege that they suffered harm based
on the staffing levels at a particular prison. This is an exceptionally broad assertion of
constitutional liability, and it strikes this court that exceptional assertions require exceptional, or
at the very least some, supporting authority. Plaintiffs offer no such authority, and it seems clear
that the reason for this failure is that the U.S. Supreme Court’s Eighth Amendment jurisprudence
requires a much closer causation nexus between the alleged policies or customs of a defendant
and the harm suffered by a particular prisoner than plaintiffs suggest in their brief. Plaintiffs’
Eighth Amendment claims against MTC will therefore be dismissed.
This court now turns to plaintiffs’ state law claims of negligence, as to which they enjoy
a considerably more favorable legal playing field than in the Eighth Amendment context. It
should be noted at the outset that, as a private entity which does not enjoy the protections of the
Mississippi Tort Claims Act (MTCA), MTC is subject to liability for simple negligence under
Mississippi law. MTC gamely attempts to persuade this court otherwise, based upon a 1975
district court decision which is not binding authority and which was, as discussed below, recently
found inapplicable by another district court in this state. The 1975 decision in question is
Bogard v. Cook, 405 F. Supp. 1202, 1215 (N.D. Miss. 1975), which defendant describes in its
brief as follows:
While Mississippi law has imposed “a duty upon a sheriff in this capacity as jailer to
exercise ordinary and reasonable care for the preservation of the life and health of his
prisoners,” this duty has not been extended to supervisors at large prisons, such as
MCCF. Bogard v. Cook, 405 F. Supp. 1202, 1215 (N.D. Miss. 1975) aff'd, 586 F.2d 399
(5th Cir. 1978). Id. at 1216. The reason for not extending this duty is because of the much
larger number of inmates housed at MCCF as compared to a jail operated by a sheriff. Id.
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The Bogard Court noted that “it would be rare for a sheriff to have custody of more than
two dozen prisoners at any time, at least half of whom would probably be pre-trial
detainees rather than persons serving time pursuant to a conviction and sentence of a state
court.” Id.
[Defendant’s brief at 12].
MTC thus argues, based upon Bogard, that it is not subject to liability for negligence
under Mississippi law, but this court does not agree. Indeed, MTC recently made virtually
identical arguments to U.S. District Judge Daniel Jordan, who rejected them with the following
analysis:
MTC reads too much into this dicta [in Bogard]. Significantly, Bogard addressed “the
test for immunity of public officials” facing common-law claims for acts taken within the
scope of their authority. Id. at 1215. Indeed the Fifth Circuit affirmed on that same basis.
See Bogard, 586 F.2d at 401 (“[T]he qualified immunity enjoyed by all the employeedefendants could not be overcome on the basis of simple negligence.”). Unfortunately for
MTC, it is not an individual state official as in Bogard, and it is not otherwise entitled to
immunity. Miss. Code Ann. § 47-5-1219(b) (establishing that sovereign immunity does
not extend to private-prison contractors); Richardson v. McKnight, 521 U.S. 399, 405–06,
412 (1997) (finding “no evidence” that pre-section 1983 common law “gave purely
private companies or their employees any special immunity from suits”); see also Leavitt
v. Carter, 178 So. 3d 334, 339 (Miss. Ct. App. 2012) (holding that “the immunity
conferred under the MTCA does not apply to private prisons operated under a contract
with the State”). Absent an argument that MTC enjoys immunity from suit, Bogard is
inapplicable. Aside from Bogard, MTC offers no legal authority suggesting that the size
of an entity shields it from the duty of reasonable care. To the contrary, other courts have
applied that standard to private-prison entities—including MTC.
Gipson v. Mgmt. & Training Corp., No. 3:16-CV-624-DPJ-FKB, 2018 WL 736265, at *2 (S.D.
Miss. Feb. 6, 2018). This court agrees with Judge Jordan that Bogard was concerned with public
official qualified immunity standards under state law, and it further believes that there would be
serious practical difficulties in applying a scheme of tort immunity for “large prisons.”1
1
For example, if courts were to recognize immunity in this context, then they would be
confronted with the basic question of exactly how large a prison had to be in order to grant it
immunity for its own acts of negligence. Assuming that coherent standards were established in
this regard, then it is difficult to discern any public policy rationale for exposing a prison which
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This court therefore concludes, as Judge Jordan did, that a simple negligence standard applies to
plaintiff’s state law claims against MTC in this case, and it will presently address those claims.
To succeed on a negligence claim, plaintiffs must establish a duty and demonstrate that
the defendant breached that duty and that the breach actually and proximately caused her
injuries. Elliott v. Mgmt. & Training Corp., 2017 U.S. Dist. LEXIS 111975, at *30-31 (N.D.
Miss. 2017). In assessing the negligence claims in this case, this court notes that plaintiffs assert
a number of different breaches of care against both MTC and its employees, and it seems clear
that their proof on some of their claims has been rather heavily impeached. In particular, it
appears to this court that the summary judgment evidence is quite damaging to plaintiffs’
assertion that the prison employees who were on duty at the time responded negligently to
Green’s medical emergency, once it was reported to them. There are two primary vehicles by
which plaintiffs’ allegations in this regard have been impeached, namely: 1) the fact that
plaintiffs’ two “star witnesses,” who are prisoners at the facility, have recanted their prior
allegations that prison employees were notified of Green’s distress in the early morning hours of
January 1, 2017 yet failed to respond to it; and 2) defendant has produced a video which appears
to demonstrate that the prison employees who were on duty at the time responded quickly once
Green’s distress was reported to them.
Plaintiffs argue that there are questions about the reliability of the prisoners’ new
accounts, considering that they are incarcerated at MTC’s facility and might conceivably believe
it be to their advantage to provide testimony helpful to defendant. For its part, defendant argues,
falls just below the threshold to liability, while granting immunity to a prison which falls just
above the threshold.
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with some force, that the prisoners changed their stories because they were presented with video
evidence which demonstrated that their original stories were inaccurate. This court is aware that,
at the summary judgment stage, the facts are to be determined in the light most favorable to the
plaintiffs, but the impeachment evidence regarding these two prisoners’ accounts seems
sufficiently strong to stretch this principle to, or even beyond, the breaking point. Ultimately,
this court concludes that it is unnecessary to decide whether the prisoners’ original stories should
be disregarded, given that plaintiffs have other evidence which is, in its view, sufficient to submit
the question of negligence to a jury, even without these prisoners’ original accounts. This court
will presently discuss this evidence.
While the summary judgment evidence appears to be quite damaging to plaintiffs’ claims
regarding prison employees’ response to the incident, it seems much less damaging to their
assertion that MTC should be held liable for understaffing issues at its prison. As to this issue,
plaintiffs rely upon deposition testimony from MTC employees, as well as personnel records
which, they contend, support a conclusion that the prison was understaffed at the time of Green’s
death. For example, plaintiffs argue in their brief that:
During her Deposition CO Phillips was shown the work roster for the night shift
extending from 10:00 p.m. on December 31, 2016 to 6:00 a.m. on January 1, 2017.
Plaintiffs’ Exh. “6”, Marshall County Correctional Facility (MCCF) roster sheet for the
night shift. That roster shows Jessica Wells assigned to the Bravo 2 Dorm tower during
that shift. It also shows that the floor officer, Walter Rhone, was absent, and no one is
listed in his place in the staff deployment box. Also Carolyn Campbell and Marissa Isom
were absent. (Plaintiffs’ Exh. “7”, MTC representative Robyn Williams Depo. Excerpts,
p.53, lines 3-15) Apparently, there was no officer on the floor in Bravo 2 Dorm during
the night shift, which included the early hours of the morning on New Year’s Day.
During Williams’ deposition, it became clear from clocking records that Wells
clocked out from the tower at 10:41 p.m. on December 31, less than an hour into her
shift. Williams testified that Wells was replaced by Dorothy Gray, even though that was
not disclosed in the roster. Williams explained that the clocking records showed Gray
clocked in at 2:00 p.m. on December 31 and clocked out at 5:38 a.m. on New Year’s
Day. She worked two 8-hour shifts back to back, but clocked out 22 minutes before the
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end of the night shift. Plaintiffs’ Exh. “7”, Williams Depo. Excerpts, p. 47, line 22—p.
48, line 6. Thus, there was no officer in the tower for nearly an hour before Phillips
arrived one-half hour late. Gray must be the officer who was in the Bravo 2 Dorm tower
throughout the night on New Year’s Eve and early morning hours of New Year’s Day.
Plaintiffs’ Exh. “A”, Williams Depo. Excerpts, p. 45, line 19--p.48, line 6. She is the
officer who Wilson and Pinkton swore was asleep at her post in the tower and could not
be awakened.
[Plaintiff’s brief at 5].
In response to these detailed arguments submitted by plaintiffs, defendant’s reply brief
offers a very limited rebuttal as it relates to the overstaffing issue. Indeed, the tone of
defendant’s arguments regarding the understaffing issue strikes this court as being quite different
from its arguments regarding the timeliness of its employees’ response, once they became aware
of Green’s distress. As to the understaffing issue, defendant’s submissions strike this court as
defensive and reliant upon legalistic defenses which are inapplicable in the negligence context.
For example, defendant argues in its reply brief that:
Plaintiffs have presented irrelevant evidence regarding supposed understaffing and
employment turnovers in an attempt to impute a customary practice at MCCF. Like any
other employer, the probability of a high turnover and “no call/no shows” in employment
is somewhat inevitable. Plaintiff’s cherry-picked deposition testimony shows nothing
that would equate to any form of an unwritten policy. MTC has not purposely
established a culture of high employment turnovers and “no call/no shows,” and plaintiffs
have presented no evidence to support any such idea. Further, plaintiffs have presented
some mystical allegation that the employment conditions are related to the profitability of
the highest prison administrators, but have failed to provide any plausible evidence to
justify this allegation. This argument is without merit. In fact, the scheduling or calling
in of additional staff lies with the local staff on duty. The shift supervisors are not the
final policymakers for MTCA, and their acts or omissions cannot suffice to create Monell
liability against MTC. In sum, plaintiffs wish to end run the requirement of establishing
a municipal policy or custom by claiming that MTC is vicariously liable for the shift
supervisor’s inability to have a complete staff on the morning of the subject incident. Not
only was the shift supervisor not a final policymaker for MTC, he was not even a final
policymaker at MCCF for staffing.
[Defendant’s reply brief at 11-12].
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In the court’s view, MTC’s arguments come close to admitting that the prison was, in
fact, suffering from staffing shortages on the morning of the incident in question, and defendant
appears to rely instead upon the Monell standard to establish that it may not be held liable for any
such understaffing. While Monell is, in fact, a formidable barrier to recovery in any § 1983
claim, its “official policy or custom” standard is simply irrelevant in a claim for simple
negligence asserted under Mississippi law. While plaintiffs’ previously-quoted arguments
regarding understaffing were set forth in the portion of their brief devoted to their Eighth
Amendment claims, this court can discern no reason why they could not raise the same
arguments as part of a claim that, in making staffing decisions, defendant failed to act as a
reasonably prudent prison operator. As quoted previously, for example, plaintiffs argue that:
By routinely understaffing the prison, the company is deliberately indifferent every day
and every hour of every day to its constitutional obligation to put the serious health and
welfare needs of its prisoners above profits. The profit motive results in understaffing
which in turn puts the inmates at risk in emergencies. It is the “moving force” which
results in subpar attention to the prisoners’ needs, including Green’s needs.
[Plaintiff’s brief at 13].
While these arguments are phrased in terms of deliberate indifference under the Eighth
Amendment, it seems clear that plaintiffs are essentially arguing that MTC failed to exercise
reasonable care in making staffing decisions, namely by placing its own profit concerns over the
needs of its inmates. Indeed, plaintiffs specifically allege in their complaint that:
23. On information and belief, due to the holiday, MTC management allowed the prison
to be dangerously understaffed, or alternatively because of the holiday the management
and staff recklessly disregarded their duties to make adequate provision for the medical
needs of prisoners, including Mr. Green.
[Amended Complaint at 3]. While this particular allegation did not specifically use the term
“negligence,” it alleges “reckless[ness]” which involves a higher degree of fault than negligence
and thus subsumes allegations of simple neglect. Moreover, the complaint implicitly
12
incorporated these prior factual allegations and alleges that “[i]n addition, or alternatively, the
defendants are liable under Mississippi common law and the Mississippi Wrongful Death Statute
to the plaintiffs for negligence and gross negligence proximately causing the death of their
husband and father.” [Amended complaint at 4].
If there were any doubt in this regard, it is removed by the fact that plaintiffs specifically
assert, in the first paragraph of their brief, that:
[Plaintiffs] have filed this lawsuit pursuant to 42 U.S.C. §1983 for violation of Green’s
right under the Eighth and Fourteenth Amendments to timely care of his serious medical
needs and state negligence law, asserting a long delay in assisting Green, due primarily to
understaffing by Defendant, amounting to deliberate indifference and gross negligence,
thereby causing his death.
[Brief at 1]. Plaintiffs thus made clear in their brief that their “primary” complaint in this case
relates to understaffing issues and that they assert both § 1983 and negligence claims in this
context. As such, plaintiffs plainly allege that MTC negligently failed to provide adequate
staffing for its prison on the morning of Green’s death, and defendant cannot reasonably assert
that they waived this argument in their briefing. Moreover, the fact that MTC saw fit to argue,
based upon a very selective reading of Bogard, that large private prisons are somehow immune
to allegations of negligence under Mississippi law likewise does not lend itself to confidence in
its position on this issue. In this court’s experience, parties are generally reluctant to rely upon
suspect arguments of law on summary judgment if they feel that the facts are strongly in their
favor on a particular issue.
In this vein, this court notes that defendant’s own corporate representative Robyn
Williams did not appear to dispute plaintiffs’ allegations of understaffing in her deposition,
testifying that:
Q: Okay. What is your perception of the extent to which … the dorm was properly
staffed during these two shifts?
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A: Well, staffing, like we talked about earlier, is an ongoing issue trying to – just trying
to hire and keep enough people.
Q: And that – that was true of that dorm that night?
A: Yes.
Q: Okay. And early morning?
A: Yes.
[Williams depo. at 56]. Defendant’s own representative thus declined to testify that the prison
was “properly staffed” at the time of Green’s death, and, in light of this fact, this court is quite
reluctant to conclude that there is no evidence in this case which would warrant this issue even
being considered by a jury.
This court notes that, in its briefing, MTC argues that the issue of staffing is one which
lies solely in the hands of low-level prison supervisors and which may not be imputed to itself.
Specifically, defendant argues that:
In fact, the scheduling or calling in of additional staff lies with the local staff on duty.
The shift supervisors are not the final policymakers for MTCA, and their acts or
omissions cannot suffice to create Monell liability against MTC.
[Reply brief at 10]. Once again, Monell is irrelevant in the negligence context, and MTC merely
cites Williams’ deposition testimony for the proposition that “the scheduling or calling in of
additional staff lies with the local staff on duty.” [Id.] The fact remains, however, that it is
Mississippi law, and the findings of a jury, which will determine the crucial issues of duty and
breach of duty in this case. As such, a jury will not be forced to defer to the procedures which
MTC put in place regarding staffing issues, since it might conclude that the procedures
themselves are inadequate and constitute evidence of negligence. In the court’s view, it is well
within the province of a jury to conclude, if the facts so demonstrate at trial, that MTC should
have realized that its prison was suffering from staffing shortages which required prompt action,
such as by engaging in recruiting efforts and/or by offering higher salaries. This court is
14
therefore not particularly receptive to defendant’s efforts to pre-empt the jury and circumscribe
the extent of its own potential liability in this case.
Having said that, this court does agree with defendant that plaintiffs’ original case has
been heavily impeached by the aforementioned video evidence and recantations, at least as it
relates to the response time issue. Plaintiffs do appear to have reasonably strong evidence that
the prison was understaffed at the time of Green’s death, but it is unclear to this court whether
they will be able to demonstrate that MTC’s negligence caused that understaffing and was a
proximate cause of his death. Regardless, a simple negligence cause of action does not present a
particularly heavy burden of proof on plaintiffs, and, once again, the summary judgment standard
requires this court to view the facts in the light most favorable to them. This court thus
concludes that a jury should be allowed to decide the question of negligence in this case,
particularly since MTC itself seems hesitant to argue that its prison was adequately staffed at the
time of Green’s death. Defendant’s motion for summary judgment will therefore be denied as to
plaintiffs’ negligence claims.2 This court notes that both parties have filed competing motions to
strike certain exhibits submitted by the other side in its briefing, but this court does not regard
those exhibits as material to its summary judgment analysis and has not relied upon them in this
order. The motions to strike will therefore be dismissed as moot.
It is therefore ordered that defendant’s motion for summary judgment [78-1] is granted in
part and denied in part, and the parties’ competing motions to strike [84-1, 87-1] are dismissed as
This court notes that defendant seeks for it to dismiss plaintiffs’ claims for punitive damages.
As the facts appear to stand now, it seems quite unlikely that this court would permit the issue of
punitive damages to be submitted to a jury. Nevertheless, there is Mississippi Supreme Court
precedent which suggests that trial courts should wait until after the jury resolves the issue of
compensatory damages before deciding whether the issue of punitive damages should be
submitted to it. Bradfield v. Schwartz, 936 So. 2d 931, 938 (Miss. 2006). This court will, out of
an abundance of caution, follow this practice in this case.
2
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moot. Plaintiffs’ motion for an extension of time to respond to the summary judgment motion
[81-1] is granted.
This, the 5th day of August, 2019.
/s/ Michael P. Mills
U.S. DISTRICT COURT
NORTHERN DISTRICT OF MISSISSIPPI
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