Judd et al v. State of Mississippi et al
MEMORANDUM OPINION AND ORDER granting 37 Motion to Dismiss. Signed by District Judge Debra M. Brown on 10/6/17. (jtm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
JAMES ARTHUR JUDD and
THE ESTATE OF KEVIN BOWENS
STATE OF MISSISSIPPI, et al.
MEMORANDUM OPINION AND ORDER
This civil rights action is before the Court on the motion to dismiss filed by Marshall
Fisher, Jerry Williams, Earnest Lee, Timothy Morris, Brenda Cox, Tara Roland, and Ella Foster.
On June 10, 2016, James Arthur Judd, as a wrongful death beneficiary and administrator
of the estate of Kevin Bowens, filed a complaint in this Court against numerous persons and
entities, including the State of Mississippi and the Mississippi Department of Corrections
(“MDOC”). Doc. #1. The complaint alleged that the defendants acted with negligence and
violated the constitutional rights of Bowens, a former inmate at the Mississippi State
Penitentiary, by failing to protect Bowens from an attack by a fellow inmate which resulted in
Bowens’ death. Id.
On February 7, 2017, the State and MDOC filed a joint answer asserting various
affirmative defenses, including sovereign immunity. Doc. #10. The same day, the State and
MDOC filed a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1)
of the Federal Rules of Civil Procedure. Doc. #11.
On March 23, 2017, Judd, with leave of the Court, filed an amended complaint. Doc.
#17. The amended complaint includes the same general allegations but adds as defendants the
following past and former employees of MDOC: Christopher Epps, Marshall L. Fisher, Archie
Longley, Jerry Williams, Earnest Lee, Timothy Morris, Brenda Cox, Tara Roland, Ella Foster,
Jeran Turner, Tavarius Walls, and Kimberly Williams. See id. at ¶ 5.
MDOC, Cox, Fisher, Lee, Morris, Roland, the State, and Williams, answered the
amended complaint on April 25, 2017. Doc. #31. Foster filed a separate answer on May 9,
2017. Doc. #35.
On May 10, 2017, this Court granted the State and MDOC’s motion to dismiss. Doc.
#36. Twelve days later, Cox, Fisher, Foster, Lee, Morris, Roland, and Williams (“moving
defendants”) filed a motion to dismiss the official capacity claims brought against them. Doc.
#37. Judd did not respond to the motion.
The moving defendants, invoking Rules 12(b)(1) and 12(b)(6)1 of the Federal Rules of
Civil Procedure, seek dismissal of the official capacity claims on the grounds that they are
protected by sovereign immunity and that they are not “persons” within the meaning of 42
U.S.C. § 1983. Doc. #38. The first of these defenses implicates Rule 12(b)(1). See Warnock v.
Pecos Cty., 88 F.3d 341, 343 (5th Cir. 1996) (“Because sovereign immunity deprives the
[federal] court of jurisdiction, … claims barred by sovereign immunity can be dismissed only
The motion to dismiss is brought under Rule 12(b)(6) but is properly characterized as a motion for judgment on the
pleadings because all of the moving defendants have filed answers. See Dorward v. Ramirez, No. 3:09-cv-18, 2009
WL 2777880, at *3 n.4 (N.D. Tex. Aug. 28, 2009) (“Although Waste Management states that it moves to dismiss
under both Rule 12(b)(6) and Rule 12(c), the court will construe the motion as made under Rule 12(c) because it was
filed after Waste Management filed an answer.”). Nevertheless, “[a] motion for judgment on the pleadings under
Rule 12(c) is subject to the same standard as a motion to dismiss under Rule 12(b)(6).” Doe v. MySpace, Inc., 528
F.3d 413, 418 (5th Cir. 2008).
under Rule 12(b)(1) and not with prejudice.”). However, the second defense – that the moving
defendants are not “persons” within the meaning of § 1983 – concerns a plaintiff’s ability to state
a claim, thus mandating a Rule 12(b)(6) inquiry. See Lapides v. Bd. of Regents of Univ. Sys. of
Ga., 535 U.S. 613, 617 (2002) (§ 1983 claim against non-person supplied supplemental
jurisdiction); Fontana v. Paeste v. Gov’t of Guam, 798 F.3d 1228, 1234 (9th Cir. 2015) (“Three
circuits have held that whether a party is a person under § 1983 is not a jurisdictional question,
but rather a statutory one. We agree and so hold.”) (internal quotation marks and alterations
A. Rule 12(b)(1)
“Motions filed under Rule 12(b)(1) of the Federal Rules of Civil Procedure allow a party
to challenge the subject matter jurisdiction of the district court to hear a case.” Ramming v.
United States, 281 F.3d 158, 161 (5th Cir. 2001). A court may dismiss for lack of subject matter
jurisdiction based on: “(1) the complaint alone; (2) the complaint supplemented by undisputed
facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the
court’s resolution of disputed facts.” Crane v. Johnson, 783 F.3d 244, 251 (5th Cir. 2015).
B. Rule 12(b)(6)
“To survive a Rule 12(b)(6) motion to dismiss, the complaint does not need detailed
factual allegations, but it must provide the plaintiff’s grounds for entitlement for relief—
including factual allegations that, when assumed to be true, raise a right to relief above the
speculative level.” Ruiz v. Brennan, 851 F.3d 464, 468 (5th Cir. 2017). “Threadbare recitals of
the elements of a cause of action, supported by mere conclusory statements, do not suffice.”
Turner v. Lt. Driver, 848 F.3d 678, 685 (5th Cir. 2017).
As explained above, Judd appears to assert against the moving defendants state law
claims based in negligence and federal claims through the vehicle of § 1983. The moving
defendants seek dismissal of all claims on the grounds of sovereign immunity and that § 1983
does not authorize suits against states or state entities.
Where, as here, a defendant raises sovereign immunity alongside an argument that a
federal cause of action does not permit an action against the states, the United States Supreme
Court has “routinely addressed before the question whether the Eleventh Amendment forbids a
particular statutory cause of action to be asserted against States, the question whether the statute
itself permits the cause of action it created to be asserted against States ....” Vt. Agency of
Natural Res. v. U.S. ex rel. Stevens, 529 U.S. 765, 779 (2000). Accordingly, the Court first will
consider whether the § 1983 claims against the moving defendants must fail because the moving
defendants are not persons under § 1983. See id.; Taylor v. Wexford Med., No. 15-2395, 2017
WL 1194177, at *4 (D. Md. Mar. 30, 2017) (“[T]the Court must turn first to the statutory
argument that [the defendant] is not a ‘person’ within the meaning of § 1983.”) (citing Stevens).
A. “Persons” under § 1983
Section 1983 authorizes suits for damages against any “person who, under color of any
statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured
by the Constitution and laws ....” “[N]either a State nor its officials acting in their official
capacities are ‘persons’ under § 1983.”2 Will, 491 U.S. at 71. Additionally, state agencies are
“Of course a state official in his or her official capacity, when sued for injunctive relief, would be a person under §
1983 because official-capacity actions for prospective relief are not treated as actions against the State.” Will v.
Mich. Dep’t of State Police, 491 U.S. 58, 71 n.10 (1989).
not persons for the purpose of § 1983. Cronen v. Tex. Dep’t of Human Servs., 977 F.2d 934, 936
(5th Cir. 1992).
Because MDOC is a state agency, its employees in their official capacities are not
“persons” within the meaning of § 1983.
Chandler v. Epps, No. 3:14-cv-603, 2016 WL
1183605, at *3 (S.D. Miss. March 25, 2016). Accordingly, the motion to dismiss will be granted
in this regard.
B. State Sovereign Immunity
“State sovereign immunity is a fundamental aspect of the sovereignty that the states
enjoyed before the ratification of the Constitution and the Eleventh Amendment, and it was
preserved intact by the Constitution.” Meyers ex rel. Benzing v. Texas, 410 F.3d 236, 240 (5th
Cir. 2005). As a result of this immunity, “[f]ederal courts are without jurisdiction over suits
against a state, a state agency, or a state official in his official capacity unless that state has
waived its sovereign immunity or Congress has clearly abrogated it.” 3 NiGen Biotech, L.L.C. v.
Paxton, 804 F.3d 389, 393–94 (5th Cir. 2015).
Courts have consistently held that MDOC is an arm of the state and therefore also
protected by sovereign immunity. See Fields v. Fisher, No. 1:15-cv-241, 2017 WL 1015011, at
*2 (S.D. Miss. Mar. 15, 2017) (“It is well established that [MDOC] is an arm of the State of
Mississippi and cloaked with the State’s Eleventh Amendment immunity from suit.”) (collecting
cases). Accordingly, the official capacity claims against the moving defendants, who are all past
or former employees of MDOC, must be dismissed unless the state has waived its sovereign
immunity or Congress has clearly abrogated it. Paxton, 804 F.3d at 393–94.
A third exception established in Ex Parte Young, 209 U.S. 123, 155–56 (1908), allows a plaintiff to bring “suits for
injunctive or declaratory relief against individual state officials acting in violation of federal law.” Raj v. La. State
Univ., 714 F.3d 322, 328 (5th Cir. 2013). Judd does not seek declaratory relief in this action.
While the state of Mississippi has waived some aspects of its sovereign immunity in the
Mississippi Tort Claims Act, that law specifically provides that “[n]othing contained in this
chapter shall be construed to waive the immunity of the state from suit in federal courts
guaranteed by the Eleventh Amendment to the Constitution of the United States.” Miss. Code
Ann. § 11-46-5(4). And, “§ 1983 does not abrogate state sovereign immunity.” Paxton, 804
F.3d at 394. No other potential waiver or abrogation is suggested by the record. Accordingly,
the moving defendants are entitled to sovereign immunity as to all claims against them in their
For the reasons above, the moving defendants’ motion to dismiss  is GRANTED.
The claims brought against the moving defendants in their official capacities are DISMISSED.
SO ORDERED, this 6th day of October, 2017.
/s/Debra M. Brown
UNITED STATES DISTRICT JUDGE
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