Davis v. Hinton

Filing 66

MEMORANDUM OPINION AND ORDER granting 60 Motion to Dismiss Based on Eleventh Amendment and Qualified Immunity filed by Defendants State of Mississippi, Mississippi Department of Corrections, Marshall Fisher, Jacquelyn Banks, and Marshall Turner, an d Tommy Hinton, in his official capacity. Plaintiff's retaliation claim is dismissed without prejudice for failure to exhaust administrative remedies. All other claims against Defendants Banks, Fisher, Turner, MDOC, the State of Mississippi, and Hinton, in his official capacity, are dismissed with prejudice. Signed by Magistrate Judge John C. Gargiulo on 11/27/217 (MG)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
MELVIN LEE DAVIS
v.

PLAINTIFF
1:15-cv-358-JCG

TOMMY HINTON, STATE OF
MISSISSIPPI, MISSISSIPPI
DEPARTMENT OF CORRECTIONS,
MARSHALL L. FISHER, JACQUELYN
BANKS, MARSHALL TURNER, and
JOHN AND JANE DOES 2-10

DEFENDANTS

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS BASED ON ELEVENTH AMENDMENT AND
QUALIFIED IMMUNITY (ECF NO. 60)
BEFORE THE COURT is the Motion to Dismiss Based on Eleventh
Amendment and Qualified Immunity (ECF No. 60) filed by Defendants Tommy
Hinton, in his official capacity; State of Mississippi; Mississippi Department of
Corrections; Marshall Fisher; Jacquelyn Banks; and Marshall Turner. The Motion
is fully briefed: Plaintiff Melvin Lee Davis filed a Response in Opposition (ECF No.
62), and Defendants filed a Reply (ECF No. 63). Having considered the submissions
of the parties, the record as a whole, and relevant law, the Court determines that
Defendants’ Motion to Dismiss Based on Eleventh Amendment and Qualified
Immunity (ECF No. 60) will be GRANTED. Plaintiff’s claims against Defendants
Tommy Hinton, in his official capacity; State of Mississippi; Mississippi Department
of Corrections; Marshall Fisher; Jacquelyn Banks; and Marshall Turner will be
dismissed with prejudice on the basis of Defendants’ sovereign immunity and

qualified immunity. The stay of proceedings will be lifted and Plaintiff’s claims
against Defendant Tommy Hinton, in his individual capacity, will proceed.
I. BACKGROUND
A. Procedural History
Plaintiff Melvin Lee Davis is a federal inmate in the custody of the
Mississippi Department of Corrections (“MDOC”). He “is and was at all times …
incarcerated in area SMCI II Lockdown at the South Mississippi Correctional
Institution” (“SMCI”). Amend. Comp. (ECF No. 46, at 2). Plaintiff filed his original
pro se Complaint (ECF No. 1) on October 26, 2015, naming Tommy Hinton as the
sole defendant and seeking monetary damages pursuant to 42 U.S.C. § 1983 for
violations of his constitutional rights. On September 20, 2016, the Court held an
omnibus hearing,1 during which Plaintiff expanded upon the allegations in his
Complaint and the Court set case management deadlines. See Minute Entry Sept.
20, 2016. The parties also consented to proceed before the undersigned United
States Magistrate Judge pursuant to 28 U.S.C. § 636 and Federal Rule of Civil
Procedure 73. Order Reassigning Case Upon Consent (ECF No. 35).
After observing Plaintiff at the omnibus hearing, the Court concluded that
“exceptional circumstances warranting appointment of counsel are present in the
instant case” and granted Plaintiff’s request for appointment of counsel. Order (ECF
No. 32, at 3). The Court appointed G. Morgan Holder, of the law firm Smith &
Holder, PLLC, to represent Plaintiff in this matter. Order Appointing Counsel (ECF

The omnibus hearing functioned as both a screening hearing pursuant to Spears v. McCotter, 766
F.2d 179 (5th Cir. 1985), and an in-person case management conference.
1

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No. 33). Plaintiff was thereafter granted leave to amend his complaint, see Text
Order Nov. 2, 2016, and he filed his First Amended Complaint (ECF No. 46) on
November 5, 2016. His First Amended Complaint added Jacquelyn Banks, Marshall
Fisher, Marshall Turner, MDOC, and the State of Mississippi as defendants and
made allegations that they violated Plaintiff’s constitutional rights. See (ECF No.
46, at 3-20).
On April 18, 2017, Defendants Banks, Fisher, Turner, MDOC, the State of
Mississippi, and Hinton, in his official capacity only, filed the instant Motion to
Dismiss Based on Eleventh Amendment and Qualified Immunity (ECF No. 60) and
an accompanying Memorandum in Support (ECF No. 61). The Motion argues that
Plaintiffs’ claims against Defendants Banks, Fisher, Turner, MDOC, the State of
Mississippi, and Hinton, in his official capacity, should be dismissed pursuant to
Federal Rules of Civil Procedure 12(b)(6) and 12(b)(1) because Plaintiff’s allegations
do not overcome their qualified and sovereign immunities. (ECF No. 61, at 3-4).
B. Factual Allegations
Melvin Davis has been incarcerated at SMCI since October 25, 2010. (ECF
No. 46, at 2). On June 2, 2015, Mr. Davis witnessed a “brutal assault with a weapon
involving numerous inmates and SMCI staff.” Id. at 10. He says the incident
“centered around a prison gang[,] which certain staff members at SMCI assisted in
running drugs.” Id. The following day, he drafted a letter describing the incident
and handed it to the correctional officers making unit rounds for delivery to
Defendant Banks, Defendant Turner, and other unnamed officers. Id.

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Davis asserts that Defendant Hinton was one of the officers “assisting the
gangs in distributing narcotics throughout the campus” and “would control housing
assignments for better access to inmates … believed [to be] snitching on gang
activities.” Id. at 9. He says “Defendant Hinton overheard the conversation between
Mr. Davis and the other correctional officers” and moments later “gave Mr. Davis a
direct order to lay face down in his cell, forced him to place his hands behind his
back, and proceeded to violently assault Mr. Davis by stomping on his back area.”
Id. at 10. “As a result of the unprovoked, vicious assault by Defendant Hinton, Mr.
Davis sustained personal injuries, including but not limited to, permanent back
injuries.” Id. Davis states that several correctional officers were in a position to
assist him and intervene “but refused to do so.” Id.
Davis asserts that, prior to this attack, he had put Defendants on notice of
“critical problems of safety, security, drugs, and violence at SMCI and of the specific
risk that the prison conditions created for Mr. Davis.” Id. at 8. He says that, “[b]y
way of verbal statements and letters,” he “notified staff lieutenants, corrections
officers, Defendant Banks, and other Doe Defendants of the ongoing assaults and
threats against him and that he was in danger.” Id. Davis says that “Defendants
reviewed [his letters], letters from other inmates, and other incident reports in
which a high rate of deaths, stabbings, and assaults was documented due to the
pervasive gang activity at SMCI.” Id. at 8-9.
Davis also alleges that “[p]rior to and at the time of Mr. Davis’s injuries, the
following conditions at SMCI posed a substantial risk of harm to SMCI inmates:

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(a) Fights occurred between inmates on a regular basis
resulting in injuries requiring medical attention and
hospitalization;
(b) Inmates throughout the prison, and particularly in the
area where Mr. Davis was housed, possessed weapons
such as shanks and knives;
(c) Weapons were not confiscated from prisoners as
required by state law and standard operating
procedures;
(d) Stabbings and deaths were often reported;
(e) Critical security posts were either unmanned or
manned with inadequate personnel;
(f) Known violent prisoners were not monitored and
supervised, which contributed to inmate-on-inmate
violence and officer-on-inmate violence;
(g) Locks on the doors to cells often did not work, allowing
inmates to avoid being locked down and preventing
effective separation of inmates from one another;
(h) Prisoners often slept in cells in which they were not
assigned;
(i) Gang leaders exercised control over housing
assignments and were permitted to expel prisoners they
no longer wanted in their dorms;
(j) Prisoners were allowed to move undetected across the
prison campus to unauthorized areas;
(k) Officers were injured by inmates or were reported to
injure inmates on several occasions; [and]
(l) Officers assisted gang members in running drugs
through the prison.
Id. at 7-8. Davis asserts that “The foregoing conditions posed a significant risk of
harm to prisoners in violations of clearly established law.” Id. at 8.
Despite being on notice of these conditions, Davis states that Defendants (1)
“failed to take reasonable steps to protect inmates from other inmates and rogue
staff,” (2) failed to take “reasonable steps to ensure adequate staffing” at SMCI, (3)
“continued to permit gangs to control the activities in Area II at SMCI and
throughout the prison campus,” (3) “failed to ensure that prisoners found with

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shanks were properly disciplined to deter inmates from possessing deadly weapons,”
and (4) “failed to ensure that officers conducted adequate contraband searches.” Id.
at 9-10. He asserts that “Defendants Fisher, Banks, Turner, and Sims[2]” failed to
promulgate, implement, and enforce procedures, rules, policies, and/or customs
prohibiting the use of excessive force and failed to adequately supervise Defendant
Hinton.” Id. at 11-12. These failures “directly led to the use of excessive force
against Mr. Davis.” Id. at 11.
Davis asserts that the following “written and/or unwritten customs, policies,
practices, and procedures” were implemented by Defendants:






Maintaining a custom or practice of tacit approval
and/or tolerance of the use of excessive force upon
inmates by officers employed by the MDOC and SMCI;
Permitting officers employed by the [State of
Mississippi and MDOC], including Defendant Hinton
and other Doe Defendants, to carry out duties while
experiencing significant emotional and psychological
issues, and thus, causing its citizens, including Mr.
Davis in the instant cause, to have their constitutional
rights trampled upon;
Failure to provide law enforcement training policies for
limiting the excessive use of force; and
Allowing inmates with impeccable behavior records to
be placed in maximum security with extremely
dangerous and violent inmates in retaliation for
attempts to inform others of violent incidents.

Id. at 17. Davis asserts that these policies, customs, and practices “condoned and
fostered the unconstitutional conduct of Defendant Hinton, and were a direct and
proximate cause of the damages and injuries sustained by Mr. Davis.” Id. at 15.

It is not clear who Sims is or why Sims is identified as a defendant at various points in the
Amended Complaint. Sims is not listed as a defendant in the caption or the preliminary allegations
identifying culpable parties. The Court will disregard allegations involving or referencing “Sims.”
2

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Finally, he alleges that “Defendants Turner and Banks failed to adequately
train and supervise Defendant Hinton” and “Defendant Fisher failed to adequately
train and supervise Defendants Banks and Turner.” Id. at 18. Their “careless and
reckless training and supervision” allowed officers to use excessive force against
inmates, allowed retaliation against inmates “for attempting to inform of assaults,”
and allowed “prison gang to oversee drug operations on the prison campus.” Id. at
18-19. He says he has been housed in the Maximum Security Unit in Area II of
SMCI, “a zone reserved for violent inmates with a history of assaulting officers and
murdering other inmates,” in “retaliation for filing the instant lawsuit.” Id. at 11,
20.
II. DISCUSSION
A. Legal Standard
To survive a motion to dismiss pursuant to Rule 12(b)(6), “a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible “when the
plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id.
In deciding a Rule 12(b)(6) motion to dismiss, the Court accepts all well
pleaded facts as true and views them in the light most favorable to Plaintiff. New
Orleans City v. Ambac Assur. Corp., 815 F.3d 196, 199 (5th Cir. 2016). Even so,
“[f]actual allegations must be enough to raise a right to relief above the speculative

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level.” Twombly, 550 U.S. at 555. “While legal conclusions can provide the
complaint’s framework, they must be supported by factual allegations.” Iqbal, 556
U.S. at 664. “Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Id. at 678.
Furthermore, claims and supporting factual allegations must be raised in a
complaint; it is not enough to present supporting factual allegations in a response to
a motion to dismiss. See Cevallos v. Silva, 541 F. App’x 390, 393-94 (5th Cir. 2013)
(“Even if [plaintiff’s] Response stated a claim for relief cognizable under Twombly,
the complaint must contain either direct allegations on every material point
necessary to sustain recovery or contain allegations from which an inference may be
fairly drawn that evidence will be introduced at trial.”) (emphasis in original); see
also Cutrera v. Bd. of Sup'rs of La. State Univ., 429 F.3d 108, 113 (5th Cir. 2005)
(“A claim which is not raised in the complaint but, rather, is raised only in response
to a motion…is not properly before the court.”).
A motion to dismiss pursuant to Rule 12(b)(1) should be granted “when the
court lacks the statutory or constitutional power to adjudicate the case.” Hooks v.
Landmark Indus., Inc., 797 F.3d 309, 312 (5th Cir. 2015) (quoting Home Builders
Ass’n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998)).
“When ruling on the motion, the district court may rely on the complaint,
undisputed facts in the record, and the court's resolution of disputed facts.” Morris
v. Thompson, 852 F.3d 416, 419 (5th Cir. 2017), cert. denied, No. 17-4, 2017 WL
2870054 (U.S. Oct. 2, 2017) (citing Ramming v. United States, 281 F.3d 158, 161

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(5th Cir. 2001)). The burden of proof rests on the party asserting the existence of
jurisdiction. Id. (citing Ramming, 284 F.3d at 161).
B. Analysis
In their Motion to Dismiss (ECF No. 60), Defendants argue that Eleventh
Amendment sovereign immunity bars Plaintiffs’ claims against the State of
Mississippi and MDOC, and against Banks, Fisher, Turner, and Hinton in their
official capacities. Defendants also argue that Banks, Fisher, and Turner are
entitled to qualified immunity for claims against them in their individual capacities.
Specifically, Defendants argue that Plaintiff has (1) failed to “demonstrate a
violation of clearly established right by Defendants Fisher, Banks, and Turner,” and
(2) failed to allege facts demonstrating the deliberate indifference of Fisher, Banks,
and Turner towards a serious risk of harm to Plaintiff. (ECF No. 61, at 10-24).
Plaintiff responds “conced[ing] the Eleventh Amendment issues of the instant
Motion,” but maintaining “that the factual allegations and allegations of law stated
in his First Amended Complaint satisfies the pleading requirements [such that]
defendants Fisher, Banks, and Turner are not entitled to qualified immunity.” (ECF
No. 62, at 2). After reviewing the allegations in Plaintiff’s First Amended
Complaint, the Court must conclude that Plaintiff’s allegations fail to overcome
Defendants Fisher, Banks, and Turner’s qualified immunity.
i. Plaintiff’s Claims Against the State of Mississippi, MDOC, and Banks,
Fisher, Turner, and Hinton, in Their Official Capacities, are Barred by the
Eleventh Amendment

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“The Eleventh Amendment bars citizens of a state from suing their own state
or another state in federal court unless the state has waived its sovereign immunity
or Congress has explicitly abrogated it.” Raj v. Louisiana State Univ., 714 F.3d 322,
328 (5th Cir. 2013) (citing U.S. Const. amend. XI; Hans v. Louisiana, 134 U.S. 1, 11
(1890); Ysleta del Sur Pueblo v. Texas, 36 F.3d 1325, 1335 (5th Cir. 1994)). Congress
has not abrogated state sovereign immunity under 42 U.S.C. § 1983. Id. (citing
Quern v. Jordan, 440 U.S. 332, 339-40 (1979); Richardson v. S. Univ., 118 F.3d 450,
453 (5th Cir. 1997)). And the State of Mississippi has not waived sovereign
immunity for lawsuits filed in federal court. See Miss. Code Ann. § 11-46-5(4)
(“Nothing 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.”). Accordingly, the Eleventh Amendment bars
Plaintiff’s claims against the State of Mississippi.
“[A] state's Eleventh Amendment immunity extends to any state agency or
entity deemed an “alter ego” or “arm” of the state. Perez v. Region 20 Educ. Serv.
Ctr., 307 F.3d 318, 326 (5th Cir. 2002) (citing Vogt v. Bd. of Comm'rs, 294 F.3d 684,
688-89 (5th Cir. 2002)). MDOC is an arm of the State of Mississippi. Reeves v. King,
No 1:13-cv-492-KS-MTP, 2015 WL 461685, at *3-4 (S.D. Miss. Feb. 4, 2015). The
Eleventh Amendment therefore also bars Plaintiff’s claims against MDOC.
“The Eleventh Amendment also ‘generally precludes actions against state
officers in their official capacities.” Salinas v. Tex. Workforce Comm’n, 573 F. App’x
370, 372 (5th Cir. 2014) (quoting McCarthy ex rel. Travis v. Hawkins, 381 F.3d 407,

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412 (5th Cir. 2004)). This is because “a suit against a state official in his or her
official capacity … is no different from a suit against the State itself.” Will v. Mich.
Dep’t of State Police, 491 U.S. 58, 71 (1989). However, an exception to this general
rule has been carved out for suits against state officers in their official capacity that
seek injunctive relief for violations of federal law. Id. n.10 (citing Kentucky v.
Graham, 473 U.S. 159, 167 n.14 (1985); Ex Parte Young, 209 U.S. 123 (1908)).
Defendants Banks, Fisher, Turner, and Hinton were all employees and officers of
MDOC at the time of the incidents alleged in Plaintiff’s First Amended Complaint.
(ECF No. 46, at 3-6). Because Plaintiff seeks only monetary damages – not
injunctive relief – the Eleventh Amendment bars Plaintiff’s claims against
Defendants Banks, Fisher, Turner, and Hinton in their official capacities.
As conceded by Plaintiff, his claims against the State of Mississippi, MDOC,
and Defendants Banks, Fisher, Turner, and Hinton, in their official capacities, are
barred by sovereign immunity under the Eleventh Amendment. These claims will
be dismissed for lack of subject matter jurisdiction pursuant to Rule 12(b)(1).

ii. Plaintiff’s Claims Against Banks, Fisher, and Turner, in Their Individual
Capacities, are Barred by Qualified Immunity
“The doctrine of qualified immunity protects government officials ‘from
liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would
have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v.
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Fitzgerald, 457 U.S. 800, 818 (1982)). Accordingly, a government official is entitled
to immunity from suit unless (1) Plaintiff has made allegations sufficient to show a
violation of a constitutional right, and (2) the right at issue was “clearly
established” at the time of the official’s alleged misconduct. Id. at 232 (citing
Saucier v. Katz, 533 U.S. 194, 201 (2001)). When a government official raises the
defense of qualified immunity to a Section 1983 claim, the plaintiff Acannot be
allowed to rest on general characterizations, but must speak to the factual
particulars of the alleged actions, at least when those facts are known to the
plaintiff and are not particularly within the knowledge of the defendants.@ Schultea
v. Wood, 47 F.3d 1427, 1432 (5th Cir. 1995) (en banc). The plaintiff must provide
Aallegations of fact focusing specifically on the conduct of the individual who caused
the plaintiff=s injury.@ Reyes v. Sazan, 168 F.3d 158, 161 (5th Cir. 1999).
“It is undisputed that the treatment a prisoner receives in prison and the
conditions under which he is confined are subject to scrutiny under the Eighth
Amendment.”3 Helling v. McKinney, 509 U.S. 25, 31 (1993). The Eighth
Amendment's protection against cruel and unusual punishment prohibits
deprivations that are not specifically a part of a prison sentence, but are “suffered
during imprisonment.” Wilson v. Seiter, 501 U.S. 294, 297 (1991) (citing Estelle v.
Gamble, 429 U.S. 97 (1976)). Under the Eighth Amendment, prison officials have a
duty to protect inmates from violence by other prisoners or prison staff. Hill v.

The Eighth Amendment is made applicable to the State of Mississippi and its agencies by virtue of
the Due Process Clause of the Fourteenth Amendment. Wilson v. Seiter, 501 U.S. 294, 296-97 (1991).
3

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Thomas, 326 F. App’x 736, 736 (5th Cir. 2009); Horton v. Cockrell, 70 F.3d 397, 400
(5th Cir. 1995).
In order to prevail on a claim that prison officials failed to protect an inmate
from harm, the Plaintiff must establish “that he [was] incarcerated under
conditions posing a substantial risk of serious harm” and that the prison official’s
state of mind towards inmate’s health or safety was one of “deliberate indifference.”
Farmer v. Brennan, 511 U.S. 825, 834 (1994). A prison official exhibits deliberate
indifference when the official “knows of and disregards an excessive risk to inmate
health or safety; the official must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists, and he must also
draw the inference.” Id. at 837. Thus, establishing an Eighth Amendment violation
requires that a prisoner prove (1) an “objective exposure to a substantial risk of
serious harm,” (2) the prison official’s subjective knowledge of that risk, and (3) the
prison official’s disregard for that risk. Gobert v. Caldwell, 463 F.3d 339, 345-46 (5th
Cir. 2006).
Defendants can only be held liable for their own actions or inactions under 42
U.S.C. § 1983; liability may not be found by way of a respondeat superior theory.
Bustos v. Martini Club, Inc., 599 F.3d 458, 468 (5th Cir. 2010). But supervisors “can
be held liable when the ‘enforcement of a policy or practice results in a deprivation
of federally protected rights.’” Id. (quoting Alton v. Texas A&M Univ., 168 F.3d 196,
200 (5th Cir. 1999)). The policy or practice must be “so deficient that [it] ‘itself is a
repudiation of constitutional rights’ and is ‘the moving force of the constitutional

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violation.’” Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir. 1987) (quoting Grandstaff
v. City of Borger, 767 F.2d 161, 169-70 (5th Cir. 1985)) (citations omitted).
In general, the Court finds that Plaintiff’s allegations are far too general and
nonspecific to any one defendant to satisfy the heightened pleading standard
necessary to overcome the defense of qualified immunity. First, Plaintiff has not
identified the actions or inactions of Defendants Fisher, Banks, and Turner that
subjected Plaintiff to a substantial risk of serious bodily harm. Second, even
assuming arguendo that Defendants did subject Plaintiff to such a risk, Plaintiff
has not established that these Defendants were subjectively aware that their
actions or inactions did so. Given that the Court concludes Plaintiff has failed to
establish a prima facie Eighth Amendment violation claim against Fisher, Banks,
or Turner, these Defendants are entitled to qualified immunity.
Plaintiff alleges that Banks, Fisher, and Turner, in their supervisory roles at
MDOC and SMCI, promulgated policies, customs, and practices that condoned
Hinton’s use of excessive force on Plaintiff. Plaintiff asserts that these Defendants
(1) maintained a custom of tolerating officers’ use of excessive force upon inmates at
SMCI, (2) permitted officers to perform their duties while subjected to “significant
emotional and psychological issues,” (3) failed to adequately train officers on the use
of appropriate force, (4) allowed inmates to be placed in maximum security in
retaliation for informing on violent incidents, and (5) otherwise maintained
inadequate policies and practices related to (a) hiring, training, and disciplining
officers and (b) investigating officer wrongdoing. (ECF No. 46, at 16-17).

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However, Plaintiff’s allegations do not truly identify any policy or practice
promulgated or maintained by Fisher, Banks, or Turner. These allegations do not
describe the substance of any policy, practice, or training program; they merely
assert conclusory shortcomings of whatever policies, practices, and programs exist.
Moreover, to the extent that a custom of tolerating the use of excessive force can be
considered a custom that could result in the violation of inmates’ constitutional
rights, Plaintiff’s allegations do not indicate that such a custom was the “moving
force” behind Hinton assaulting Plaintiff. Rather, Plaintiff describes Hinton’s
intentional decision to attack Plaintiff in circumstances otherwise warranting no
use of any force. Any policies, practices, and customs regarding the use of force in
officer-inmate interactions would have no bearing on Hinton’s decision to attack
Plaintiff for personal reasons.
Assuming, for the sake of argument, that Defendants Fisher, Banks, and
Turner were personally responsible for a policy, custom, or practice that somehow
subjected Plaintiff to a substantial risk of harm, Plaintiff has not established that
these Defendants were subjectively aware of such a risk to Plaintiff. With the
exception of a letter written to Defendant Banks the day before the assault, Plaintiff
identifies no specific act by which any individual defendant was put on notice as to
any substantial risk of harm to Plaintiff. Plaintiff otherwise makes general
assertions about Defendants, collectively: that Plaintiff notified Defendants, “[b]y
way of verbal statements and letters,” of “critical problems of safety, security, drugs,
and violence at SMCI and of the specific risk that the prison conditions created for

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Mr. Davis;” (ECF No. 46, at 8); and that “Defendants reviewed [his letters], letters
from other inmates, and other incident reports” documenting deadly assaults
related to “pervasive gang activity.” Id. at 8-9. Other than a letter to Banks sent the
day before the assault, Plaintiff identifies no specific communications between
himself and individual defendants. He similarly does not point to any specific letter
from other inmates or incident report, nor does he identify the content of any
individual letter or report. These general allegations are insufficient to establish
that any individual defendant was subjectively aware of a substantial risk of harm
to the Plaintiff.
Similarly, Plaintiff’s general allegations about prior conditions at SMCI lack
the required specificity and similarity to the assault on Plaintiff to have made any
individual defendant subjectively aware that Hinton or other correctional officers
posed a substantial risk of harm to Plaintiff. All but two allegations – “officers were
injured by inmates or were reported to injure inmates on several occasions” and
“officers assisted gang members in running drugs through the prison” – paint a
picture of inmate-on-inmate violence rather than officer-on-inmate violence.
Moreover, these two relevant allegations are too generalized because they do not
point to any specific incidents illustrating the trends described (i.e. instances in
which Hinton or another officer assaulted an inmate). (ECF No. 46, at 7-8). The
Fifth Circuit has explained that
“Prior indications cannot simply be for any and all ‘bad’ or
unwise acts, but rather must point to the specific violation
in question. That is, notice of a pattern of similar violations
is required. While the specificity required should not be
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exaggerated, our cases require that the prior acts be fairly
similar to what ultimately transpired and, in the case of
excessive use of force, that the prior act have involved
injury to a third party.”
Estate of Davis ex rel. McCully v. City of N. Richland Hills, 406 F.3d 375, 383 (5th
Cir. 2005) (emphasis in original) (citations omitted). Plaintiff has failed to identify a
pattern of similar violations such that any individual defendant would have been
subjectively aware of a substantial risk of harm to Plaintiff.
Having determined that Plaintiff’s allegations fail to establish (1) that the
actions or inactions of Defendants Banks, Fisher, or Turner subjected Plaintiff to an
objective, substantial risk of serious bodily harm, and (2) that Defendants Banks,
Fisher, or Turner were subjectively aware of any such risk of harm to Plaintiff, the
Court need not address whether these Defendants disregarded a known substantial
risk of serious bodily harm to Plaintiff. The Court must find that Defendants Banks,
Fisher, and Turner are entitled to qualified immunity because Plaintiff has failed to
establish Defendants’ deliberate indifference towards a substantial risk of harm to
Plaintiff.
Finally, Plaintiff’s allegations that his housing in maximum security is
unconstitutional retaliation for having filed this lawsuit, or is otherwise an
unconstitutional housing assignment, are foreclosed as a matter of law. To the
extent that Plaintiff asserts a claim of retaliation for filing the instant suit, his
claim must be dismissed for failure to exhaust the claim before filing suit. Because
Plaintiff is a prisoner pursuing a civil action seeking redress from government
employees, the Prison Litigation Reform Act (“PLRA”), Pub. L. No. 104-134, 110
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Stat. 1321, H.R. 3019 (codified as amended in scattered titles and sections of the
U.S.C.), applies and mandates that “[n]o action shall be brought with respect to
prison conditions under [42 U.S.C. § 1983] … by a prisoner … until such
administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The
administrative grievance process must be exhausted “pre-filing.” Gonzalez v. Seal,
702 F.3d 785, 788 (5th Cir. 2012).
Although “failure to exhaust is an affirmative defense under the PLRA,” and
inmates are therefore “not required to specifically plead or demonstrate exhaustion
in their complaints,” a complaint is nonetheless “subject to dismissal for failure to
state a claim if the allegations, taken as true, show the plaintiff is not entitled to
relief.” Jones v. Bock, 549 U.S. 199, 215-16 (2007); see also Torns v. Miss. Dep’t of
Corr., 301 F. App’x 386, 388 (5th Cir. 2008). “One way in which a complaint may
show the inmate is not entitled to relief is if it alleges facts that clearly foreclose
exhaustion. In such a case, the district court may sua sponte dismiss the complaint
for failure to state a claim.” Torns, 301 F. App’x at 388-89 (citing Carbe v. Lappin,
492 F.3d 325, 328 (5th Cir. 2007)). Here, Plaintiff alleges that he has been
discriminated against because he filed the instant lawsuit. He could not possibly
have exhausted this claim before filing his Complaint.
Insofar as Plaintiff generally asserts that his housing in a maximum security
unit violates his constitutional rights, he has failed to state a claim for which relief
can be granted because a prisoner has no protectable liberty interest in his custody
classification by prison officials. Wilkerson v. Stadler, 329 F.3d 431, 435-36 (5th Cir.

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2003). Plaintiff’s claims against Defendants Fisher, Banks, and Turner, in their
individual capacities, must be dismissed for failure to state a claim for which relief
can be granted pursuant to Rule 12(b)(6).
III. CONCLUSION
Based on the foregoing, the Court finds that Defendants MDOC, the State of
Mississippi, and Banks, Fisher, Turner, and Hinton, in their individual capacities,
are entitled to sovereign immunity. The Court also finds that Defendants Banks,
Fisher, and Turner, in their individual capacities are entitled to qualified immunity.
Finally, to the extent that Plaintiff asserts that his housing assignment is
unconstitutional retaliation for having filed the instant suit, such a claim must be
dismissed without prejudice for Plaintiff’s failure to exhaust administrative
remedies pre-suit. A Rule 16(a) Order will follow so that case management
deadlines can be set for Plaintiff’s remaining claims against Defendant Hinton, in
his individual capacity.
Accordingly, IT IS HEREBY ORDERED that the Motion to Dismiss Based
on Eleventh Amendment and Qualified Immunity (ECF No. 60) filed by Defendants
Banks, Fisher, Turner, MDOC, the State of Mississippi, and Hinton, in his official
capacity only, is GRANTED. Plaintiff’s retaliation claim is dismissed without
prejudice for failure to exhaust administrative remedies. All other claims against
Defendants Banks, Fisher, Turner, MDOC, the State of Mississippi, and Hinton, in
his official capacity, are dismissed with prejudice because Defendants are entitled to
their respective sovereign and qualified immunity.

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SO ORDERED AND ADJUDGED, this the 27th day of November, 2017.

s/ John C. Gargiulo
JOHN C. GARGIULO
UNITED STATES MAGISTRATE JUDGE

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