Carter v. Burk et al
Filing
52
Memorandum Opinion and Order granting 41 MOTION for Summary Judgment Based on Eleventh Amendment and Qualified Immunity filed by defendants Burk, Anderson, Paige, Lee, Ladner, Smith and Spivey. Plaintiff is ordered to respond by 6/18/12 and show cause why her complaint against defendant Jamal Bruce should not be dismissed for failure to prosecute. Signed by District Judge Tom S. Lee on 6/8/12 (LWE)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
VINCENT CARTER, #03528
VS.
PLAINTIFF
CIVIL ACTION NO. 3:10CV330TSL-MTP
RUFUS BURK, BRIAN LADNER, BERTHA SPIVEY
VARSHARSKE ANDERSON, JAMAL BRUCE,
SHARON PAIGE, SEAN SMITH, ERNEST LEE,
AND CHRISTOPHER SWEARENGEN, IN THEIR
OFFICIAL AND INDIVIDUAL CAPACITIES,
AND OTHER UNKNOWN JOHN AND JANE DOES A-Z
DEFENDANTS
MEMORANDUM OPINION AND ORDER
This cause is before the court on the motion of defendants
Rufus Burk, Varsharske Anderson, Sharon Paige, Earnest Lee,
Brian Ladner, Sean Smith and Bertha Spivey for summary judgment
based on Eleventh Amendment immunity and qualified immunity.
Plaintiff Vincent Carter has responded to the motion and the
court, having considered the memoranda of authorities, together
with attachments, submitted by the parties, concludes the motion
is well taken and should be granted.
Initially, the court notes that there is nothing in the
record to indicate that process has been served on Jamal Bruce, a
former correctional officer with the Mississippi Department of
Corrections named as a defendant in plaintiff’s complaint.
The
record reflects that summons was issued for Bruce nearly two years
ago, on July 7, 2010, but no return has been filed.
Accordingly,
plaintiff will be required to respond and show cause why his claim
against Bruce ought not be dismissed pursuant to Federal Rule of
Civil Procedure 41 for failure to prosecute.1
Plaintiff Vincent Carter, an inmate with the Mississippi
Department of Corrections, filed this action pursuant to 42 U.S.C.
§§ 1983, 1985 and 1986 against employees of the Mississippi
Department of Corrections (MDOC)2 asserting claims for violation
of the Fifth, Fourteenth and Eighth Amendments,
and also alleging
state law claims for battery, assault, civil conspiracy and
negligent and intentional infliction of emotional distress,
relating to an incident in which he was attacked and beaten by a
fellow inmate while incarcerated at Central Mississippi
Correctional Facility (CMCF).
Carter alleges in his complaint
that on March 4, 2010, he reported to CMCF Associate Warden Brian
Ladner and Gang Coordinator Bertha Spivey that he had received
physical threats from other inmates (gang members) in Area A-2,
1
The remaining defendants, employees of the Mississippi
Department of Corrections, have been served and, represented by
the same counsel, have collectively moved for summary judgment.
As Bruce is not among the movants, references herein to
“defendants” do not include Bruce.
2
Plaintiff’s complaint identifies the defendants as
Ernest Lee, a warden at CMCF - Roving Unit Gates I & II, A
Building, B Building and C Building; Rufus Burk, a CMCF employee
“over security at the CMCF” and with responsibility and authority
to hire, train, supervise, set policies and procedures; Brian
Ladner, the warden at CMCF; Bertha Spivey, Gang Task Force
Coordinator at CMCF; Varshake Anderson, a correctional officer at
CMCF; Sharon Paige, Correctional Commander at CMCF; and Sean
Smith, a member of the CID staff at CMCF.
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where he was then housed.
Based on this report, Carter was placed
in administrative protective custody; he was removed from the
general population on that date and sent to MSU Area #3, a special
management unit.
Plaintiff alleges that once in protective
custody, he learned that one of the inmates who had threatened
him, Christopher Swearengen, was also housed in protective
custody.
On March 14, 2010, Carter wrote a letter to defendant
Sharon Paige, Correctional Commander at CMCF, relating the threat
from Swearengen, which he asked defendant Ladner to deliver to
Paige.
The same day, upon receiving the letter, Paige visited
plaintiff in protective custody, at which time plaintiff explained
that he feared for his life to the point he did not want to leave
his cell.
Plaintiff states that Paige “listened and promised she
would come back the next day.”
However, later that same day, he
was attacked by Swearengen.
In his complaint, plaintiff alleges the attack occurred when
Jamal Bruce, then a correctional officer at CMCF, failed to
properly search, handcuff and escort Swearengen, and when
defendant Varsharkse Anderson, the tower officer on duty at the
time, opened plaintiff’s cell door when requested to do so by
Bruce, which made it possible for Swearengen to attack him.
Defendants moved for summary judgment on the basis of
Eleventh Amendment immunity as to all plaintiff’s federal claims
against them in their official capacities for money damages, and
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as to plaintiff’s state law claims against them in their official
capacities for monetary and injunctive relief.
Defendants sought
summary judgment on plaintiff’s state law claims on the additional
basis of immunity under the Mississippi Tort Claims Act (MTCA),
see Miss. Code Ann.
§ 11-46-91(1)(m) (providing that governmental entity and employees
in course and scope of employment not liable for any claim “[o]f
any claimant who at the time the claim arises is an inmate of any
detention center ... regardless of whether such claimant is or is
not an inmate of any detention center....”).
Further, they
asserted entitlement to summary judgment on plaintiff’s claims
under state and federal law for injunctive relief on mootness
grounds, since plaintiff is no longer incarcerated with the
Mississippi Department of Corrections.
See Knox v. McGinnis, 998
F.2d 1405, 1413-15 (7th Cir. 1993) (prisoner released from
administrative segregation lacked standing to seek injunction
barring prison officials from violating his Eighth Amendment
rights).
Finally, defendants asserted they are entitled to
dismissal on qualified immunity grounds as to plaintiff’s § 1983
claims against them in their individual capacities.
In response, plaintiff has conceded that his claim for
injunctive relief is moot, and he has also conceded that under the
MTCA, defendants are immune from suit as to his state law claims.
However, plaintiff denies that defendants are entitled to Eleventh
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Amendment immunity with respect to any of his claims, and he
further opposes defendants’ qualified immunity arguments.
Plaintiff’s position with respect to defendants’ Eleventh
Amendment immunity is misguided.
Clearly, his § 1983 claim for
the recovery of money damages from defendants in their official
capacities is barred by the Eleventh Amendment, see Washington
Legal Found. v. Texas Equal Access to Justice Found., 94 F.3d 996,
1005 n.52 (5th Cir. 1996) (holding that Eleventh Amendment
immunity precludes federal claim for recovery of monetary damages
against state officials in official capacity), as are his claims
against them in their official capacity for any relief under state
law, see Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89,
104 S. Ct. 900, 919, 79 L. Ed. 2d 67 (1984) (holding that federal
courts are barred by the Eleventh Amendment from hearing state law
claims against state officials in their official capacity under
supplemental jurisdiction).
That leaves for consideration
plaintiff’s § 1983 claims against defendants in their individual
capacities.
Defendants maintain they are entitled to summary
judgment as to these claims based on the doctrine of qualified
immunity.
“[G]overnment officials performing discretionary functions
generally ... are ‘shielded from liability for civil damages
insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person
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would have known.’”
Wilson v. Layne, 526 U.S. 603, 614, 119 S.
Ct. 1692, 143 L. Ed. 2d 818 (1999) (quoting Harlow v. Fitzgerald,
457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982)).
“What this means in practice is that whether an official protected
by qualified immunity may be held personally liable for an
allegedly unlawful action generally turns on the ‘objective legal
reasonableness' of the official's action, assessed in light of the
legal rules that were ‘clearly established’ at the time it was
taken.”
Id., 119 S. Ct. 1692 (quoting Anderson v. Creighton, 483
U.S. 635, 639, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987)).
When a
defendant invokes qualified immunity, the burden is on the
plaintiff to demonstrate the inapplicability of the defense.
See
Bazan ex rel. Bazan v. Hidalgo County, 246 F.3d 481, 489 (5th Cir.
2001).
Thus, the doctrine of qualified immunity shields
defendants from plaintiff’s claim for money damages unless
plaintiff shows “(1) that the official violated a statutory or
constitutional right, and (2) that the right was ‘clearly
established’ at the time of the challenged conduct.”
Ashcroft v.
al-Kidd, ––– U.S. ––––, ––––, 131 S. Ct. 2074, 2080, 179 L. Ed. 2d
1149 (2011).
Defendants submit that plaintiff has failed to even allege,
much less present evidence to demonstrate the violation of a
constitutional right.
More specifically, they argue that since
there is no evidence that any defendant acted with anything other
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than ordinary negligence, then there was no constitutional
violation and defendants are therefore entitled to qualified
immunity.
Plaintiff acknowledges that “[o]nly deliberate
indifference will suffice to state a failure to protect claim;
mere negligence is not sufficient.”
Hutchins v. Doe, C.A. No.
C–12–041, 2012 WL 1190313, 4 (S.D. Tex. Mar. 19, 2012) (citing
Farmer v. Brennan, 511 U.S. 825, 832, 114 S. Ct. 1970, 128 L. Ed.
2d 811 (1994)); see also Oliver v. Collins, 914 F.2d 56, 60 (5th
Cir. 1990) (holding that a negligent failure to protect from harm
does not make a claim under 42 U.S.C. § 1983); Verrette v. Major,
No. 07–CV–00547, 2011 WL 3269319, 2 (W.D. La. July 29, 2011)
(finding correctional officers entitled to qualified immunity,
since even if officers were negligent, “‘the mere negligent
failure to protect a prisoner from assault does not comprise a
constitutional violation’”) (quoting Hinojosa v. Johnson, 270 Fed.
Appx. 370, 378 (5th Cir. 2008).
Plaintiff alleges in his complaint only that defendants were
negligent, stating as follows:
The actions of Brian Ladner, Bertha Spivey, Captain Sean
Smith, Officers Jamal Bruce, Varsharske Anderson, Rufus
Burk and Earnest Lee on the day of this occurrence were
negligent and unreasonable. Their actions caused
injuries to the claimant which led to hospitalization
and mental anguish of the claimant.
Plaintiff repeats this allegation verbatim in his response to
defendants’ motion: “The actions of Brian Ladner, Bertha Spivey,
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Captain Sean Smith, Officers Jamal Bruce, Varsharske Anderson,
Rufus Burk and Earnest Lee on the day of this occurrence were
negligent and unreasonable.”
He goes on to argue that Bruce and
Anderson, whom he identifies as “[t]he individual defendants who
were most directly involved in the assault upon Mr. Carter,”
are not entitled to qualified immunity since as to them, there is
a “question [as to] whether Defendants’ actions were beyond
negligent and raised a substantial risk of that harm to Mr.
Carter.”
However, at no point does he take the position that any
of the other defendants was anything other than merely negligent.
Accordingly, he has failed to present facts that would amount to a
constitutional violation by defendants Paige, Ladner, Spivey,
Smith, Burke or Lee.
With regard to Officer Anderson, plaintiff’s only allegation
is that she was the tower officer on duty at the time of the
incident, and that she opened the door to Swearengen’s cell at
Officer Bruce’s request immediately prior to his attack on
plaintiff.
Plaintiff argues in response to defendants’ motion
that “the question of how Swearengen’s cell opened is yet
unanswered and under any circumstances, Varshake Anderson’s
actions were not objectively reasonable under the circumstances.”
However, plaintiff’s own allegations are to the effect that
Anderson did nothing more than unlock Swearengen’s cell door at
the request of her fellow correctional officer.
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Plaintiff does
not allege that Anderson knew of, and was deliberately indifferent
to any threat which Swearengen posed to plaintiff.
Anderson’s
action in opening Swearengen’s cell door would only amount to
simple negligence and does not rise to the level of a
constitutional violation.
Plaintiff has also alleged a conspiracy to violate his
constitutional rights under 42 U.S.C. § 1983(3) pursuant to an
agreement between Bruce and Swearengen, which Anderson allegedly
joined “by her action.”
He alleges the remaining defendants are
liable under 42 U.S.C. § 1986 for deliberate indifference in
failing to prevent this alleged conspiracy.
Defendants moved for
summary judgment as to these claims on several grounds, including
that plaintiff had failed to allege, or present evidence of the
class-based animus required for a conspiracy claim under
§ 1985(3); and because a § 1986 neglect-to-prevent-a-conspiracy
claim presupposes an actionable § 1985 conspiracy.
See Ickom v.
Scott County, Civil Action No. 3:10–cv–568–DPJ–FKB, 2012 WL 628005
at *5 (S.D. Miss. Feb. 24, 2012) (finding § 1985 conspiracy claim
failed because, among other reasons, “nothing about [his]
allegations suggest[ed] the required ‘class-based animus’,” and
ordering dismissal of § 1986 claim because “§ 1986 neglect-toprevent-a-conspiracy claim presupposes a § 1985 conspiracy).
motion is well taken.
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The
Finally, plaintiff has purported to assert claims against all
defendants for failure to train and supervise and negligent
hiring, retention and discipline.
Defendants moved for dismissal
of these claims on the basis that plaintiff’s allegations are
conclusory in nature and lack any factual backing.
In his
response to the motion, plaintiff refers to these claims only to
assert the only reference to these claims is his assertion that
they “deserve further inquiry through discovery.”
However, the
Fifth Circuit has held that “discovery ‘must not proceed until the
district court first finds that the plaintiff's pleadings assert
facts which, if true, would overcome the defense of qualified
immunity.’”
Winstead v. Box, 419 Fed. Appx. 468, 469, 2011 WL
1057558, 1 (5th Cir. 2011) (quoting Wicks v. Mississippi State
Employment Serv., 41 F.3d 991, 994 & n.10 (5th Cir. 1995)).
Plaintiff has not made the necessary factual assertions either in
his complaint, or in his response to defendants’ motions.
Accordingly, he is not entitled to discovery, and these putative
claims will be dismissed.
Based on all of the foregoing, it is ordered that defendants’
motion for summary judgment is granted.
It is further ordered that plaintiff shall respond by June
18, 2012, and show cause why her complaint against defendant Jamal
Bruce should not be dismissed for failure to prosecute.
SO ORDERED this 8th day of June, 2012.
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/s/Tom S. Lee
UNITED STATES DISTRICT JUDGE
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