Hendricks v. M.D.O.C. et al

Filing 17

MEMORANDUM OPINION AND ORDER DISMISSING DEFENDANT MDOC with prejudice; AND DISMISSING DEFENDANTS AMY UNKNOWN AND NURSE BARLOW without prejudice pursuant to 42 U.S.C. § 1983. Amy Unknown (Ms, Chronic Care Supervisor), Unknown Barlow (Nurse, Med. Room) and M.D.O.C. terminated. The remainder of this case shall proceed. Signed by District Judge Carlton W. Reeves on 1/27/2014 (JS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION

JAMES ANDRE HENDRICKS, # 32475
VERSUS

PLAINTIFF
CIVIL ACTION NO. 3:13cv786-CWR-FKB

MISSISSIPPI DEPARTMENT OF
CORRECTIONS, NURSE GILES, NURSE
GONZALES, NURSE JOHNSON, NURSE
COLLINS, MS. AMY, DR. THOMAS
LEHMAN, NURSE BARLOW,
LIEUTENANT THORNTON, GENE
AUTREY, and DR. DIAL

DEFENDANTS

MEMORANDUM OPINION AND ORDER
DISMISSING MDOC, MS. AMY, AND NURSE BARLOW
This case is before the Court sua sponte for consideration of dismissal. Pro se Plaintiff
James Andre Hendricks is incarcerated with the Mississippi Department of Corrections (“MDOC”),
and he brings this action for damages and release challenging both the conditions and length of his
confinement. The Court has considered and liberally construed the pleadings. As set forth below,
Defendants MDOC, Ms. Amy, and Nurse Barlow are dismissed.
BACKGROUND
On December 18, 2013, Hendricks filed this action. Among others, he sues MDOC, Ms.
Amy, and Nurse Barlow. As is relevant to the latter two, Hendricks indicates that, although he
named them as Defendants, he really wishes to name them as his witnesses.
As for MDOC, Hendricks alleges that he is being denied a nebulizer and a unaboot. He also
brings both a 42 U.S.C. § 1983 and habeas challenge against MDOC for the length of his sentence.
He claims MDOC is not giving him credit for time served in jail, pretrial. This, he contends is

contrary to the sentencing judge’s orders. Finally, Hendricks claims he was denied medical
treatment for injuries he received after an assault.
This is not the first case in which Hendricks has sued MDOC over the nebulizer, unaboot,
and his sentence. On December 11, 2013, he filed these identical claims against MDOC in
Hendricks v. Mississippi Department of Corrections, cause number 3:13cv774-WHB-RHW. That
case is still pending.
DISCUSSION
MS. AMY AND NURSE BARLOW
Since Hendricks indicates that he does not want to sue Ms. Amy and Nurse Barlow, they are
dismissed without prejudice.
MDOC
Hendricks sues MDOC under § 1983 and state law for the alleged denial of a nebulizer and
unaboot, and an alleged failure to treat him following an assault. He likewise sues MDOC for
damages over the length of his confinement.
The Prison Litigation Reform Act of 1996, applies to prisoners proceeding in forma pauperis
in this Court. One of the provisions reads, “the court shall dismiss the case at any time if the court
determines that . . . the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which
relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such
relief.” 28 U.S.C. § 1915(e)(2)(B). The statute “accords judges not only the authority to dismiss a
claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil
of the complaint’s factual allegations and dismiss those claims whose factual contentions are clearly
baseless.” Denton v. Hernandez, 504 U.S. 25, 32 (1992). “[I]n an action proceeding under [28
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U.S.C. § 1915, a federal court] may consider, sua sponte, affirmative defenses that are apparent from
the record even where they have not been addressed or raised.” Ali v. Higgs, 892 F.2d 438, 440 (5th
Cir. 1990). “Significantly, the court is authorized to test the proceeding for frivolousness or
maliciousness even before service of process or before the filing of the answer.” Id. The Court has
permitted Hendricks to proceed in forma pauperis in this action. His Complaint is subject to sua
sponte dismissal under § 1915.
First, § 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State . . . subjects, or causes to be subjected, any citizen of the United
States . . . to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress. . . .
42 U.S.C. § 1983. The State of Mississippi is not amenable to suit under this statute, because “a
State is not a person within the meaning of § 1983.” Will v. Mich. Dep’t of State Police, 491 U.S.
58, 64 (1989). This holding likewise applies to “any governmental entities that are considered ‘arms
of the State’ for Eleventh Amendment purposes.” Id. at 70. MDOC is considered an arm of the
State of Mississippi. Miss. Code Ann. § 47-5-1; Scott v. Miss. Dep’t of Corrs., No. 2:05cv2159-KSJMR, 2006 U.S. Dist. LEXIS 43683 at *2 (S.D. Miss. June 12, 2006). Therefore, the § 1983 claims
against MDOC are dismissed with prejudice.
Second, to the extent MDOC is sued under the Mississippi Tort Claims Act, the Act does not
waive the State’s Eleventh Amendment immunity “from suit in federal court.” Miss. Code Ann. §
11-46-5(4). Therefore, the state law claims against MDOC are dismissed without prejudice.
Furthermore, the nebulizer, unaboot, and sentence claims are subject to dismissal for an
additional reason. These claims against MDOC are duplicate to those filed against it in Hendricks,
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cause number 3:13cv774-WHB-RHW. That case, which is still pending, was filed a week before
the instant case. It is “‘malicious’ for a pauper to file a lawsuit that duplicates allegations of another
pending federal lawsuit by the same plaintiff.” Pittman v. Moore, 980 F.2d 994, 995 (5th Cir. 1993).
The nebulizer and unaboot claims and the damages claim for an alleged illegal confinement against
MDOC are also dismissed as malicious. This counts as a strike under § 1915(g).
HABEAS
Finally, Hendricks brings habeas claims against MDOC alleging that he is not being given
credit for time he spent in jail, prior to trial. Since this identical claim is also being pursued in the
previously filed action, the habeas claim is dismissed without prejudice.
IT IS THEREFORE ORDERED AND ADJUDGED that, for the reasons stated above,
Defendant Mississippi Department of Corrections should be and is hereby dismissed. The 42 U.S.C.
§ 1983 claims against this Defendant are DISMISSED WITH PREJUDICE. The State law claims
against this Defendant are DISMISSED WITHOUT PREJUDICE. The habeas claims are
DISMISSED WITHOUT PREJUDICE as duplicative. Pro se Plaintiff James Andre Hendricks
is assessed a strike pursuant to 28 U.S.C. § 1915(g).
IT IS FURTHER ORDERED AND ADJUDGED that Defendants Ms. Amy and Nurse
Barlow are dismissed without prejudice. The remainder of this case shall proceed.
SO ORDERED AND ADJUDGED, this the 27th day of January, 2014.
s/Carlton W. Reeves
UNITED STATES DISTRICT JUDGE

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