Jolley v. Mississippi Department of Corrections et al

Filing 31

ORDER DISMISSING CHRISTOPHER EPPS, granting his 26 Motion to Dismiss. The Clerk is directed to terminate Epps as a party Defendant. Signed by Magistrate Judge Linda R. Anderson on 4/3/2013. (ACF)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
DONALD LEE JOLLEY, JR.
VS.

PLAINTIFF
CIVIL ACTION NO. 3:11CV481-LRA

GEO GROUP AND CHRISTOPHER EPPS

DEFENDANTS

ORDER DISMISSING CHRISTOPHER EPPS
Defendant Christopher Epps, Commissioner of the Mississippi Department of
Corrections, filed a Motion to Dismiss pursuant to Rule 12(b)(6) and 12(b)(1) of the
Federal Rules of Civil Procedure. Plaintiff has not responded to the motion or otherwise
objected to the relief requested. This motion is now before the Court.
I. Facts and Procedural History
Jurisdiction of this case is based upon 42 U.S.C. § 1983. Plaintiff was incarcerated
in the custody of the Mississippi Department of Corrections (“MDOC”) in the East
Mississippi Correctional Facility (“EMCF”) in Meridian, Mississippi, during the pertinent
period. He is now living at 124 Miller Street, Marion, Arkansas.
Plaintiff contends that Defendant prison officials at EMCF failed to provide him
with adequate medical care, failed to provide him with an adequate diet, failed to provide
him with adequate clothing, and opened his legal mail outside his presence. He also
charges that other jail conditions were inadequate, in that he was not provided with
necessary toiletries and that he was not sent to a specialist even though he was referred. It
took him over seven months to get a tooth pulled, and he suffered from the pain for that

period. However, Plaintiff’s only allegation against Defendant Epps is that as
Commissioner he should be monitoring EMCF to make sure they uphold MDOC policies.
Plaintiff admitted at the omnibus hearing conducted by the Court that Commissioner Epps
had no personal involvement in his complaints.
II. Standard of Review

In considering a motion under Rule 12(b)(6), the “court accepts ‘all well-pleaded
facts as true, viewing them in the light most favorable to the plaintiff.’ “ Martin K. Eby
Constr. Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir.2004) (quoting
Jones v. Greninger, 188 F.3d 322, 324 (5th Cir.1999)). To overcome a Rule 12(b)(6)
motion, Plaintiff must plead “enough facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “Factual allegations must be
enough to raise a right to relief above the speculative level, on the assumption that all the
allegations in the complaint are true (even if doubtful in fact).” Id. at 555 (citations and
footnote omitted). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 556). It follows that “where the well-pleaded facts do not permit
the court to infer more than the mere possibility of misconduct, the complaint has
alleged-but it has not ‘show[n]’-‘that the pleader is entitled to relief.’ “ Id. at 1950
(quoting Fed.R.Civ.P. 8(a)(2)).

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III. Analysis
"To state a claim under § 1983, a plaintiff must allege the violation of a right
secured by the Constitution and laws of the United States, and must show that the alleged
deprivation was committed by a person acting under color of state law." West v. Atkins,
487 U.S. 42, 28 (1988). There is no liability under section 1983 under a theory of
respondeat superior. Monell v. Department of Social Services, 436 U.S. 658, 691-95
(1978). It is well-settled that "there is no vicarious or respondeat superior liability of
supervisors under § 1983." Rios v. City of Del Rio, Tex., 444 F.3d 417, 425 (5th Cir.
2006); see also Ashcroft v. Iqbal, 556 U.S. 662, 676, citing Monell, 436 U.S. at 677 (the
term "supervisory liability" is a "misnomer"). Each government-official defendant,
through the official’s own individual actions, must have violated the Constitution; they
are not held accountable for the misdeeds of their agents. Id. at 1948-49. Absent
vicarious liability, each Government official is liable for his or her own misconduct. Id.
See also Carnaby v. City of Houston, 636 F.3d 183, 189 (5th Cir. 2011) (citing Iqbal at
677).
Fifth Circuit precedent requires either personal involvement by an individual
Defendant in the alleged violation, or the enforcement of some policy or practice resulting
in the constitutional deprivation. Champagne v. Jefferson Parish Sheriff's Office, 188
F.3d 312, 314 (5th Cir. 1999) (emphasis added); Stewart v. Murphy, 174 F.3d 530, 53637 (5th Cir. 1999); Alton v. Texas A & M University, 168 F.3d 196, 200 (5th Cir. 1999).
Any claims against Epps in his individual capacity must be based on "direct acts or
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omissions ... not the acts of subordinates." Coleman v. Houston Indep. School Dist., 113
F.3d 528, 534 (5th Cir. 1997).
In this case, Plaintiff claims it was Epps’s responsibility in his capacity as
Commissioner to monitor EMCF and make certain that it was upholding MDOC policies.
Yet, the failure to follow policies does not create a constitutional claim, as "a prison
official's failure to follow the prison's own policies, procedures, or regulations does not
constitute a violation of due process." Myers v. Kelvenhagen, 97 F.3d 91, 94 (5th Cir.
1996). Without more, Plaintiff fails to allege sufficient facts to state a claim against
Commissioner Epps. The Fifth Circuit has held that a prisoner has no federally protected
liberty interest in having his prison grievances investigated or answered favorably; Epps
is not liable for any failure of the ARP process to provide the result Plaintiff may desire.
Geiger v. Jowers, 404 F.3d 371, 374 (5th Cir. 2005).
Plaintiff does not suggest that Epps was personally aware that he was not being
provided with enough food, or that he was not taken to a specialist or given the medical
care he requested or needed, or that he was not provided with toiletries. He simply
charges that Epps should have known— had he been appropriately monitoring EMCF.
Without more, Plaintiff's allegations failed to establish that Epps was personally involved
in any constitutional violation against him. Supervisory liability under §1983 cannot
attach where the allegation of liability is based upon a mere failure to act; instead, any
liability must be based upon active unconstitutional behavior. Leach v. Shelby County
Sheriff, 891 F.2d 1241, 1246 (6th Cir. 1989). The Court finds that although
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Commissioner Epps would be immune from suit under these circumstances, Plaintiff has
also failed to state a constitutional claim against Epps.
IV. Conclusion
For the foregoing reasons, Defendant Epps's Motion to Dismiss is granted, and
all claims against Epps in his individual or his official capacity are hereby dismissed.
SO ORDERED AND ADJUDGED, this the 3rd day of April 2013.

S/ Linda R. Anderson
UNITED STATES MAGISTRATE JUDGE

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