Gibson v. East Mississippi Correctional Facility et al
Filing
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MEMORANDUM OPINION AND ORDER OF DISMISSAL: 1 Complaint is dismissed without prejudice. This dismissal counts as a strike. A separate final judgment shall issue as set out herein. Signed by District Judge Tom S. Lee on 7/30/15 (*copy mailed to plaintiff at #162303, EMCF, 10641 Highway 80 West, Meridian, MS 393097(LWE)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
MARTENO DEANGELO GIBSON, #162303
VERSUS
PLAINTIFF
CIVIL ACTION NO. 3:15cv156-TSL-RHW
EAST MISSISSIPPI CORRECTIONAL
FACILITY, TONY HOWARD, ASHLEY
BURRAGE, MTC PERSONNEL, and
MANAGEMENT AND TRAINING
CORPORATION
DEFENDANTS
MEMORANDUM OPINION AND ORDER OF DISMISSAL
This matter is before the court sua sponte.
Pro se
plaintiff Marteno Deangelo Gibson is incarcerated with the
Mississippi Department of Corrections.
He brings this action
arising out of an assault by a fellow inmate.
The court has
considered and liberally construed the pleadings.
As set forth
below, this case is dismissed.
BACKGROUND
Gibson is incarcerated at the East Mississippi Correctional
Facility (“EMCF”).
It is a private prison run by defendant
Management and Training Corporation (“MTC”).
He alleges that, on
January 12, 2015, he was housed on Unit 2-Delta, with defendant
Tony Howard, who is a fellow inmate.
Defendant Ashley Burrage is
a correctional officer at EMCF.
According to the Complaint, Officer B. Pollard called Gibson
to the zone door, so that he could leave to see his case manager.
When Gibson got to the zone door, Howard was already there with
all of his property, trying to leave off of the zone.
yelling to Pollard that he would stab officers.
He was
Pollard was able
to let Gibson out of the zone door, even though Howard tried to
push his way through, too.
Subsequently, around 2:30 p.m., Pollard and Burrage
allegedly completed a head count.
Gibson contends he was now on
the zone playing dominos in the common area.
According to the
pleadings, Pollard left the zone “to take care of something
else,” and Burrage stayed with a maintenance crew on the zone.
(Compl. at 5).
Howard then began to attack Burrage, striking her
to the ground and then stabbing her repeatedly.
Gibson
intervened to save Burrage, and Howard stabbed him, too, multiple
times.
Gibson was taken to the hospital, where he underwent
surgery.
Gibson brings this lawsuit under federal and State law
against EMCF, Howard, unknown MTC personnel, and MTC.
While
Gibson lists Burrage as a plaintiff on the Complaint, he later
refers to her as a defendant.
(Dkt. 10 at 1); (Compl. at 2).
Gibson asserts claims of failure to protect, negligence, and
assault and battery.
DISCUSSION
The Prison Litigation Reform Act of 1996, applies to
prisoners proceeding in forma pauperis in this court.
The
statute provides in pertinent part, “the court shall dismiss the
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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.”
1915(e)(2)(B).
28 U.S.C. §
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.”
Hernandez, 504 U.S. 25, 32 (1992).
Denton v.
“[I]n an action proceeding
under [28 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.”
Higgs, 892 F.2d 438, 440 (5th Cir. 1990).
Ali v.
“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 Gibson to proceed
in forma pauperis in this action.
His Complaint is subject to
sua sponte dismissal under § 1915.
Gibson asserts his claims under 42 U.S.C. § 1983 for failure
to protect and, construed liberally, under State law for
negligence, assault, and battery.
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SECTION 1983, FAILURE
I.
EMCF
AND
TO
MANAGEMENT
PROTECT
AND
TRAINING CORPORATION1
Gibson alleges that Management and Training Corporation
failed “to have the appropriate staff members available to
[i]nterve[ne] & protect while I had got stabbed. . . .”
at 1).
(Resp.
The court liberally construes this allegation to be that
this defendant did not have the appropriate number of staff
members to protect Gibson.
“A prison official’s ‘deliberate indifference’ to a
substantial risk of harm to an inmate violates the Eighth
Amendment.”
Farmer v. Brennan, 511 U.S. 825, 828 (1994).
For a
failure to protect claim, “the inmate must show that he is
incarcerated under conditions posing a substantial risk of
serious harm.”
Id. at 834.
Deliberate indifference occurs when
the official subjectively “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.
1
Since EMCF is a prison that MTC operates, these two
defendants are one and the same. Although a corporation
operating a private prison may be held liable under § 1983 in
limited circumstances, the prison itself is not a separate legal
entity amenable to suit under § 1983. See Rosborough v. Mgmt. &
Training Corp., 350 F.3d 459, 461 (5th Cir. 2003). Accordingly,
Gibson’s allegations against EMCF will be considered allegations
against MTC.
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Although Gibson appears to allege that EMCF was
understaffed, or not appropriately staffed, he does not allege
any facts that show that Management and Training Corporation was
aware of a substantial risk of violence against Gibson, or of any
inmate violence for that matter.
Therefore, he fails to state a
claim for failure to protect against this defendant.
II.
ASHLEY BURRAGE
It is not clear whether Gibson means to sue Burrage.
All
Gibson alleges against Burrage is that she was the sole officer
on the zone when the attack occurred.
the first victim.
However, she herself was
He does not contend that Burrage was present
when Howard first made threats to Pollard, that Howard was going
to stab an officer.
If Gibson is attempting a failure to protect claim against
Burrage, it would fail for lack of deliberate indifference.
There is no allegation to indicate that she was aware that Howard
was threatening to stab officers until he attacked her.
Furthermore, at the time that Gibson was attacked, she is alleged
to have been struck and stabbed several times.
accuse Burrage of refusing to help him.
Gibson does not
Indeed, the crux of
Gibson’s complaint appears to be that Burrage had no help from
fellow officers.
STATE LAW CLAIMS
This leaves Gibson’s State law claims against Howard for
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assault and battery and against the remaining defendants for
negligence.
These claims invoke the court’s supplemental
jurisdiction.
Pursuant to 28 U.S.C. § 1367(c), the claims are
dismissed without prejudice to Gibson’s right to proceed in State
court.
IT IS THEREFORE ORDERED AND ADJUDGED that the 42 U.S.C. §
1983 claims are DISMISSED WITHOUT PREJUDICE for failure to state
a claim upon which relief may be granted.
This dismissal counts
as a strike pursuant to 28 U.S.C. § 1915(g).
IT IS FURTHER ORDERED AND ADJUDGED that the State law claims
are DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. § 1367(c).
A separate final judgment shall issue pursuant to Federal Rule of
Civil Procedure 58.
SO ORDERED AND ADJUDGED, this the 30th day of July, 2015.
/s/Tom S. Lee
UNITED STATES DISTRICT JUDGE
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