J.M. v. Management & Training Corporation et al
ORDER granting in part and denying in part Defendant Management & Training Corporation's 81 Motion for Summary Judgment, and denying as moot Plaintiff's 111 Supplemental Motion to Strike. Signed by District Judge Halil S. Ozerden on September 5, 2017. (ENW)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
MANAGEMENT & TRAINING
CORPORATION, et al.
Civil No. 3:15CV841-HSO-JCG
MEMORANDUM OPINION AND ORDER GRANTING
IN PART AND DENYING IN PART DEFENDANT
MANAGEMENT & TRAINING CORPORATION’S  MOTION
FOR SUMMARY JUDGMENT, AND DENYING AS MOOT
PLAINTIFF’S  SUPPLEMENTAL MOTION TO STRIKE
BEFORE THE COURT are the Motion for Summary Judgment  filed by
Defendant Management & Training Corporation, and the Supplemental Motion to
Strike  filed by Plaintiff J.M. These Motions are fully briefed. After due
consideration of the Motions , , the record, and relevant legal authority, the
Court finds that MTC’s Motion for Summary Judgment  should be granted in
part and denied in part, and that Plaintiff’s Motion to Strike  should be denied
as moot. Plaintiff’s state-law claim against MTC for respondeat superior or
vicarious liability will proceed to trial.
Relevant Factual Background
Defendant Management & Training Corporation (“MTC”) is a private prison
operator given a contract by the Mississippi Department of Corrections (“MDOC”)
for the management and oversight of the Walnut Grove Correctional Facility
(“WGCF”). Am. Comp.  at 2. MTC took over operation of WGCF from GEO
Group, Inc. (“GEO”). The parties apparently do not dispute that MTC began
operating WGCF on June 18, 2012. See MTC’s Mem.  at 2; Pl.’s Mem.  at 11,
19. Marjorie Brown (“Ms. Brown”) is a regional vice president at MTC for Region 4,
which includes Mississippi, and her responsibilities include supervision of activities
within Region 4. Ms. Brown’s Aff. [81-18] at 1.1
During the time period relevant to this litigation, Plaintiff J.M. (“Plaintiff”)
was an MDOC inmate incarcerated at WGCF. Plaintiff was housed, along with his
cellmate R.H., in cell # 32 on Unit 8 Bravo (“Unit 8B”). See MTC’s Mem.  at 3;
Pl.’s Mem.  at 11. Plaintiff claims that while he was incarcerated at WGCF on
March 7, 2015, Defendant D.H.,2 an MTC correctional officer, sexually assaulted
Plaintiff and his cellmate. See Pl.’s Dep.  at 35-36.
At around 7:40 a.m. on March 7, 2015, offender R.H. placed a call to the
PREA hotline which was available at Walnut Grove, where he reported
that he had been sexually assaulted by D.H.. [sic] J.M. made a similar
call at 7:52 a.m. At approximately 8:10 a.m., correctional officer Tene
Wilson received a call from Mary Jones, J.M.’s sister, reporting that J.M.
and R.H. had been sexually assaulted by a correctional officer the prior
MTC’s Mem.  at 5-6; see also Pl.’s Mem.  at 12 (agreeing with these facts).
Many of MTC’s and Plaintiff’s citations to exhibits do not reference any paragraph
or page numbers. See, e.g., MTC’s Mem.  at 2 n.2 (“Exhibit ‘A’ – Affidavit of Marjorie
Brown.” (emphasis in original)); Pl.’s Mem.  at 18 (“See Ex. 18.”). The parties are
cautioned in the future to include specific paragraph or page numbers in citations
throughout their briefs.
“Due to the serious accusations, the name of the officer [was not] identified
publicly,” and he was only identified as D.H. Am. Compl.  at 1 n.2.
The Events of March 6 – 7, 2015
On the night of March 6 – 7, 2015, D.H. was assigned to work in Zone 8D of
WGCF. See Mar. 6, 2015, Master Roster [93-6] at 1. Plaintiff was housed in Zone
8B. See Incident Detail [93-2] at 6. Sergeant Annie Morgan (“Sergeant Morgan”)
was assigned to work in Zone 8B. Mar. 6, 2015, Master Roster [93-6] at 1. Captain
Karen Moorehead (“Captain Moorehead”), who was the highest ranking officer at
WGCF during the shift the night Plaintiff was allegedly sexually assaulted, testified
in her deposition that the facility was short on staff that evening. Capt.
Moorehead’s Dep. [93-7] at 22, 37. The record reflects that six officers had called in
sick, two officers were late, one officer was at training, and one was on extended
sick leave. Mar. 6, 2015, Master Roster [93-6] at 1-2.
Correctional officers were not allowed to change their assigned post without
permission, Capt. Moorehead’s Dep. [93-7] at 25-26, and supervisors would check
that officers were following the post orders throughout the shift by making rounds
or by telephoning the pod or tower officer, id. at 27-28. For officers to switch posts
would be a violation of MTC’s policy and procedure. Id. at 43. Captain Moorehead
agreed that one reason for the checks by supervisors was to ensure that officers
were at their assigned posts. Id. at 44.
According to the post orders or roster, Sergeant Morgan was assigned to
Zones 8B and 8C. Capt. Moorehead’s Dep. [93-7] at 88. Captain Moorehead
testified that if Sergeant Morgan needed assistance during the shift, she would
have received it from another pod 8 correctional officer, such as D.H., id. at 89, and
she would have had the authority to request D.H. to enter Zone 8B, id.
The logbook reflects that on the night in question, Correctional Officer R.
Harris (“Officer Harris”) took post in Zone 8D, where the post orders had D.H.
scheduled to work. Id. at 50. Sergeant Morgan was assigned to Zone 8B, where
Plaintiff was housed, but D.H. instead took post in that zone. Id. at 52. Captain
Moorehead did not know why the change in staff had occurred. Id. at 54. Captain
Moorehead testified that this could have been a mistake or a supervisor could have
granted permission to change posts; otherwise, such a change would have been a
violation of policies and procedures. Id. at 50-54.
Officer Tiffany Gill (“Officer Gill”), the tower or pod control officer in Housing
Unit 8 that night, testified that Unit 8 was understaffed, and based upon her
reading of the roster for that evening, Officers Harris and D.H. were the only two
assigned to the entire Unit. Officer Gill’s Dep. [93-8] at 33-35, 66. Sergeant
Morgan would not have actually taken a post in any of the Housing Unit 8 zones, so
Officers Harris and D.H. would have had to cover more than one zone either
together or separately, and according to Officer Gill, it would not have been out of
the ordinary for D.H. to conduct a security check in Zone 8B. Id. at 34-35, 66, 68;
see also Sergeant Morgan’s Dep. [93-10] at 9 (“As a sergeant, . . . I just go through
different units, and if they need help, I’ll help them out.”).
According to Captain Moorehead, every time a person entered or exited a
housing unit, the pod officer should have documented the event in the logbook. Id.
at 30-31. The logbook for the evening of March 6, 2015, does not reflect that
supervisors performed security checks in Housing Unit 8, which meant either the
checks did not occur, or if they did occur, they were not logged. Id. at 47-49.
Captain Moorehead testified that either scenario would have been a violation of
policies and procedures. Id. While failure to log was a violation of company policy,
Captain Moorehead acknowledged it did occur on occasion. Id. at 87-88.
Captain Moorehead testified that Officer Gill had the ability to remotely open
the electronic locks on the cell doors, if her control panel was operating properly.
Capt. Moorehead’s Dep. [93-7] at 55-56. If the panel was functioning correctly,
Officer Gill would also receive an alert if a cell door was opened because a light on a
particular number cell should flash red. Id. at 56-57. Monitoring the lights was one
of the duties of the control officer. Id. at 58.
Officer Gill testified that if a cell door was opened, “that’s if it’s not rigged
with something, a red light is going to come on in the tower right above that door.”
Officer Gill’s Dep. [93-8] at 16. “[U]nless they are serving paperwork or medical,
issuing medication, or a captain or lieutenant,” no door should be opened, as jailers
were not permitted to enter a cell at night in a non-emergency situation. Id. at 1617. If Officer Gill saw a red light, she was to call the officer to inquire why the cell
door was open. Id. at 17. If Officer Gill did not receive a response, she was
instructed to call the captain or the lieutenant. Id.
Captain Moorehead testified that the lights in the control tower “didn’t work
all the time;” at times, the light would “just pop on and then it will pop off . . . .”
Capt. Moorehead’s Dep. [93-7] at 57. She agreed when asked that there were
incidents reported at WGCF where correctional officers were improperly entering
the cells of inmates, which is why supervisors conducted checks during shifts. Id. at
60. Officer Gill did not “recall anybody entering a cell on [her] watch” on the night
of the incident. Officer Gill’s Dep. [93-8] at 26. Plaintiff’s cell at WGCF was “[r]ight
in front of [Officer Gill]” in the control pod. Id. at 61.
Subsequent prosecution of D.H.
In April 2015, D.H. was charged with three counts of engaging in a sexual act
with an inmate in violation of Mississippi Code § 97-3-104. See General Affidavits
[93-2] at 18, 29, 31; Warrants [93-2] at 19, 30, 32.3 MTC terminated D.H.’s
employment on or about May 11, 2015. See Notice of Caution [81-14] at 2; Request
to Terminate [81-14] at 3. On November 18, 2016, a grand jury in Leake County,
Mississippi, returned an Indictment against D.H. for two counts of violating
Mississippi Code § 97-3-104(1) as to J.M. and R.H. Indictment [93-4] at 1-2.4
After Plaintiff and his cellmate reported the alleged sexual assault, another
inmate in Housing Unit 8, J.J., informed officials that D.H. “had entered his cell and made
him perform an oral sex act on [D.H.].” MDOC Incident Detail [93-2] at 6-7. According to
the Investigation Supplemental Report of Kevin Polk, Chief of Police for the Walnut Grove,
Mississippi, Police Department (“Chief Polk”), J.J. stated that D.H. had paid him $150.00 to
perform oral sex. Investigation Supplemental Report [93-2] at 2.
The record evidence does not disclose the ultimate disposition of these charges.
However, at a telephonic status conference held before the Magistrate Judge on August 23,
2017, counsel advised that D.H.’s criminal matter has been resolved pursuant to the state
court’s acceptance of a guilty plea. See Aug. 23, 2017, Minute Entry.
On November 19, 2015, Plaintiff filed a Complaint  against MTC, asserting
claims pursuant to 42 U.S.C. § 1983, along with claims under state law for
negligent and/or grossly negligent hiring and supervision, and for respondeat
superior. Compl.  at 4-6. With leave of Court, Plaintiff filed his First Amended
Complaint  on April 4, 2016, against MTC and individual Defendant D.H. The
First Amended Complaint  advances claims pursuant to 42 U.S.C. § 1983
against MTC and D.H. for violating his rights under Eighth and Fourteenth
Amendments to the United States Constitution. As for MTC, Plaintiff claims his
rights were violated due to MTC’s policies, customs, and practices of failing to
protect inmates, failing to train and supervise employees, and failing to adequately
staff WGCF. Id. at 5. Plaintiff advances similar claims against MTC under
Mississippi law. Id. at 4-6.
MTC’s Motion for Summary Judgment 
MTC filed its Motion for Summary Judgment  on March 24, 2017,
arguing that it is considered a municipality for purposes of constitutional analysis,
and that it cannot be held vicariously liable for constitutional violations of its
employees. MTC’s Mem.  at 8. According to MTC, Plaintiff cannot show the
existence an official policy or custom which promoted, authorized, or failed to
prevent D.H. from sexually assaulting Plaintiff, defeating any constitutional claim
against MTC. Id. at 8-10, 13. MTC points to the record evidence and states that
“before March 7, 2015, no one – prisoner or employee – made any accusation against
former correctional officer D.H. for any sexual assault.” Id. at 11. MTC maintains
that it “had in place a multitude of policies and procedures to prevent the very
incident that took place,” that “it had no actual or constructive notice of any prior or
potential sexual assaults by D.H.” Id. at 12.
MTC contends that it is not vicariously liable for Plaintiff’s state-law claims
because D.H. was not acting in the course and scope of his employment with MTC,
id. at 13-14, and because it “had in place policies and procedures to prevent its
employees from engaging in sexual relationships with inmates,” including
“compliance with PREA [Prison Rape Elimination Act, 42 U.S.C. § 15601, et seq.]
and other measures,” id. at 15. MTC asserts that Plaintiff’s allegations constitute
criminal acts which are necessarily beyond the course and scope of D.H.’s
employment with MTC. Id. at 16-17.
Alternatively, MTC argues that Plaintiff’s punitive damages claim should be
dismissed, as there is no vicarious liability for punitive damages and the facts of
this case do not demonstrate the sort of gross negligence, recklessness, or
maliciousness on MTC’s part that would merit an award of punitive damages. Id.
Plaintiff responds that “WGCF has a particularly troublesome past and was
the subject of a class action filed in 2010 by inmates alleging that the prison failed
to protect inmates from harm, specifically sexual abuse by guards.” Pl.’s Mem. 
at 10 (citing Depriest v. Walnut Grove Corr. Auth., 3:10-cv-663-CWR-FKB (S.D.
Miss.)). Plaintiff cites the “Federal Consent Decree which was in effect from March
26, 2012 until the prison was closed in September 2016.” Id. Although MTC did not
take over WGCF until June 2012, Plaintiff maintains that MTC was bound by the
terms of the Consent Decree. Id.
Plaintiff asserts that
MTC had unwritten policies, customs and practices of failing to
adequately train, supervise, investigate, and discipline its correctional
officers, failing to adequately staff the prison with trained and qualified
guards, failing to prevent improper relationships between guards and
inmates, and allowing the prison to be understaffed.
Id. at 13. According to Plaintiff, his “constitutional causes of action are essentially
MTC’s failure to protect inmates, including Plaintiff, and MTC’s failure to train,
supervise, and discipline its correctional officers.” Id. at 15. Plaintiff argues that
Depriest demonstrates that “MTC was not only objectively aware of prior sexual
incidents and other acts of violence against inmates, MTC subjectively was aware of
a substantial risk of harm to inmates and disregarded that risk.” Id. at 17.
Plaintiff agrees with MTC’s legal argument on the state-law negligence
claims that MTC cannot be liable under the doctrine of respondeat superior for
D.H.’s alleged actions. Id. at 26. Instead, Plaintiff posits that MTC is liable under
respondeat superior or vicarious liability “due to the negligent and grossly negligent
actions of other MTC employees in not preventing the assault.” Id. (emphasis in
original). “Plaintiff never sought to hold MTC liable for [D.H.]’s intentional acts,
just the negligence of other MTC employees who failed to prevent the sexual
assault.” Id. Plaintiff claims that, on the night he was allegedly assaulted, Housing
Unit 8 was understaffed, supervisors failed to make rounds after midnight in
violation of MTC policy, and D.H. and another employee switched assignments in
violation of policy. Id. at 29-30.
“Plaintiff concedes that there is no evidence to show that MTC negligently
hired or retained [D.H.]; however, there is sufficient evidence to show that MTC
negligently supervised him.” Id. at 30-31. Plaintiff maintains that, while the issue
of punitive damages is not yet ripe for consideration, punitive damages are
appropriate against MTC pursuant to Mississippi Code § 11-1-65. Id. at 33-34.
Plaintiff’s Supplemental Motion to Strike 
In support of its Motion for Summary Judgment, MTC submitted the
Affidavit of Marjorie Brown [81-18], which discussed MTC’s policies and training of
its officers, including D.H. On April 21, 2017, Plaintiff filed a Motion  to Strike
this Affidavit or, in the Alternative, to Depose Marjorie Brown.
On June 5, 2017, the Court granted Plaintiff’s Motion  in part and
permitted Plaintiff to depose Marjorie Brown on the substance of her Affidavit, but
declined to strike it. Order  at 8-9. After Ms. Brown was deposed, Plaintiff
filed his Supplemental Motion  to Strike paragraphs 5 and 10 of the Affidavit.
According to Plaintiff, “Ms. Brown’s deposition makes it clear that she lacks
the personal knowledge required in order for her to testify about the type of training
or quality of training purportedly given to [D.H.] or any other MTC employee.” Pl.’s
Mem.  at 1. Plaintiff seeks to strike paragraphs 5 and 10 of Ms. Brown’s
Affidavit “to the extent she attempts to describe [D.H.]’s training or the training of
any other MTC employee,” because Ms. Brown purportedly lacks first-hand
knowledge to give this testimony. Id. at 3.
MTC responds that Ms. Brown’s Affidavit “merely confirm[s] what is in the
[business] records,” which she authenticated pursuant to Federal Rule of Evidence
803, and that any objection goes to the weight rather than the admissibility of the
statements. MTC’s Mem.  at 1-2. “Brown’s affidavit – including the portions
Plaintiff seeks to strike – summarized voluminous business records, including MTC
policies and procedures and [D.H.]’s personnel records.” Id. at 3. According to
MTC, “[a]s a corporate Vice President, Ms. Brown is competent to review business
records and give testimony as to the training [D.H.] received and the quality of that
On November 16, 2010, certain plaintiffs filed a “class action . . . on behalf of
the teenagers and young men who [were] imprisoned in the Walnut Grove Youth
Correctional Facility (‘WGYCF’) . . . .” Depriest v. Walnut Grove Correctional
Authority, No. 3:10cv663-CWR-FKB, Compl.  at 2 (S.D. Miss. Nov. 16, 2010).5 At
the time, GEO Group, Inc., managed the WGYCF. Id. at 7. The Depriest complaint
charged that “staff members abuse[d] their power by engaging in sexual
relationships with the youth in their care,” id. at 2, and that “[s]ome correctional
Prior to 2012, the prison at Walnut Grove was known as WGYCF and housed
juvenile offenders up to twenty-two years of age. See Miss. Code Ann. § 47-5-943 (2007).
officers and nurses have sex with youth at WGYCF” in violation of Mississippi Code
§ 97-3-104, id. at 14.
On March 20, 2012, the United States Department of Justice, Civil Rights
Division (the “DOJ”), issued a report on its investigation of the WGYCF. See
Depriest, No. 3:10cv663-CWR-FKB, Report [74-1] at 4-47. The DOJ “found that
staff sexual misconduct with youth in their custody occurred on a monthly basis, at
a minimum,” and that “WGYCF is aware of the pervasiveness of staff sexual
misconduct, but has failed to take any steps to prevent it beyond terminating staff
caught in the act.” Id. at 10.
On March 26, 2012, the Court entered an Order Approving Settlement with
an attached executed Consent Decree, which required MDOC to “ensure that there
are sufficient numbers of adequately trained direct care and supervisory staff, and
sufficient numbers of professional staff.” Depriest, No. 3:10cv663-CWR-FKB, Order
 at 1-8, Consent Decree [75-3] at 1, 15.6
Following entry of the Consent Decree, MDOC contracted with MTC for the
operation of WGCF commencing in June 2012. Depriest, No. 3:10cv663-CWR-FKB,
Order  at 5 n.1.7 In a June 11, 2015, Order, the Court did not mention any
specific instances of sexual assault having occurred since MTC began operating the
See also Order [93-16] (filed under seal as Exhibit “17” as an exhibit in the present
case); Consent Decree [93-15] (Exhibit “16”).
See also Order [93-14] (filed under seal as Exhibit “15” to Plaintiff’s Response 
in the present case).
prison, other than the one that is the basis of the present lawsuit. See id. at 21
n.19. The Court did, however, find that the evidence before it
paints a picture of a facility struggling with disorder, periodic mayhem,
and staff ineptitude which leads to perpetual danger to the inmates and
staff. The dangers that inmates face are not simply limited to assaults
by other inmates but also from the guards. The Monitors’ Reports
validate that the sometimes chaotic conditions are more than mere
snapshots of disruption, as they span a time period of almost two years.
Each of these reports, with the exception of the third and most recent,
conveys findings of noncompliance with the core requirement of
“reasonably safe living conditions.”
Id. at 12 (emphasis added).8
The Court, however, recognized the remedial measures taken by MTC to
address some of the problems, including removal of the “close custody inmate
population,” replacement of security cameras, decreased inmate population, and the
installation of a body scanner and a perimeter netting. Id. at 17-18. MTC had
made “significant advancements with staffing,” and although maintaining a
sufficient number of adequately trained staff was an ongoing problem at the facility,
there had been “a significant improvement in the number of assaults that occur at
the facility.” Id. at 18. On September 15, 2016, MDOC closed Walnut Grove, which
rendered the Consent Decree inoperative. Depriest v. Walnut Grove Correctional
Authority, No. 15-60488, Op. at 2 (5th Cir. Sept. 27, 2016).
The Monitors’ Reports were apparently issued on October 1, 2012; April 1, 2013;
October 19, 2013; April 7, 2014; October 22, 2014; and March 5, 2015, after MTC had taken
over management. See Depriest, No. 3:10cv663-CWR-FKB, Order  at 12 n.4.
Plaintiff’s Supplemental Motion to Strike  is moot.
Based upon a review of Ms. Brown’s Affidavit, MTC’s Motion for Summary
Judgment, and the record as a whole, the Court finds that the result would not
change regardless of whether the Court considers paragraphs 5 and 10 of Ms.
Brown’s Affidavit. Plaintiff’s Supplemental Motion to Strike  will be denied as
MTC’s Motion for Summary Judgment should be granted in part and denied
Summary Judgment Standard
Federal Rule of Civil Procedure 56(a) provides that summary judgment is
appropriate “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). In order to carry this initial burden, a movant “must identify those
portions of the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, which it believes demonstrate the
absence of a genuine issue of material fact.” Pioneer Expl., L.L.C. v. Steadfast Ins.
Co., 767 F.3d 503, 511 (5th Cir. 2014) (quotation omitted).
If the movant carries its burden, “[t]he burden then shifts to the nonmovant
to demonstrate a genuine issue of material fact, but the nonmovant cannot rely on
the allegations in the pleadings alone.” Id. “Instead, the nonmovant must go
beyond the pleadings and designate specific facts showing that there is a genuine
issue for trial.” Id. (quotation omitted). “A genuine dispute of material fact exists if
‘the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.’” Savant v. APM Terminals, 776 F.3d 285, 288 (5th Cir. 2014) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “In deciding whether a
fact issue exists, courts must view the facts and draw reasonable inferences in the
light most favorable to the nonmoving party.” Id. “Only disputes over facts that
might affect the outcome of the suit under the governing law will properly preclude
the entry of summary judgment.” Pioneer Expl., L.L.C., 767 F.3d at 511.
Plaintiff’s Federal Claims
Plaintiff maintains that MTC violated his right under the Eighth
Amendment9 to be free from cruel and unusual punishment by failing to protect him
and by failing to train, supervise, and discipline its correctional officers. See Am.
Compl.  at 4-6; see also Pl.’s Mem.  at 13-15. The language of the Eighth
Amendment “manifests an intention to limit the power of those entrusted with the
criminal-law function of government.” Whitley v. Albers, 475 U.S. 312, 319 (1986)
(quotation omitted). “The Cruel and Unusual Punishments Clause was designed to
protect those convicted of crimes . . . .” Id. (quotation omitted). According to the
Supreme Court, however, not every governmental action affecting the interests or
well-being of a prisoner is subject to Eighth Amendment scrutiny. Id. “After
incarceration, only the unnecessary and wanton infliction of pain . . . constitutes
Plaintiff also asserts that MTC violated his Fourteenth Amendment rights, but he
does not raise a separate, stand-alone § 1983 claim under the Fourteenth Amendment.
Instead, Plaintiff states that “[a]s a State inmate, his 8th Amendment rights are applicable
to States through the 14th Amendment. MTC is considered a ‘state actor’ so Plaintiff
alleged that his 8th Amendment rights and 14th Amendment rights were violated.” Pl.’s
Mem.  at 13 n.4 (citing Robinson v. California, 370 U.S. 660 (1962)).
cruel and unusual punishment forbidden by the Eighth Amendment.” Id.
(quotation omitted). “The Eighth Amendment’s prohibition of ‘cruel and unusual’
punishments necessarily excludes from constitutional recognition de minimis uses
of physical force, provided that the use of force is not of a sort repugnant to the
conscience of mankind.” Hudson v. McMillian, 503 U.S. 1, 9-10 (1992) (quotation
The parties do not dispute that MTC, even though it is a private prisonmanagement company, is treated as a municipality for purposes of Plaintiff’s § 1983
claims. See MTC’s Mem.  at 8; Pl.’s Mem.  at 13; see also Rosborough v.
Mgmt. & Training Corp., 350 F.3d 459, 460 (5th Cir. 2003) (“a private entity acts
under color of state law when that entity performs a function which is traditionally
the exclusive province of the state” (quotation omitted)). “The standards applicable
to determining liability under § 1983 against a municipal corporation are applicable
to determining the liability of a private corporation performing a government
function.” Olivas v. Corr. Corp. of Am., 408 F. Supp. 2d 251, 254-55 (N.D. Tex.
2006), aff’d, 215 F. App’x 332 (5th Cir. 2007).
“[C]laims against local governments premised on a theory of respondeat
superior are not cognizable under § 1983.” Hinojosa v. Livingston, 807 F.3d 657,
668 (5th Cir. 2015) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691-94
(1978)). “Accordingly, ‘isolated unconstitutional actions by municipal employees
will almost never trigger liability,’ but rather ‘the unconstitutional conduct must be
directly attributable to the municipality through some sort of official action or
imprimatur.’” Fennell v. Marion Indep. Sch. Dist., 804 F.3d 398, 412 (5th Cir. 2015)
(quoting Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001)).
“To establish municipal liability under § 1983, a plaintiff must show the
deprivation of a federally protected right caused by action taken ‘pursuant to an
official municipal policy.’” Valle v. City of Houston, 613 F.3d 536, 541 (5th Cir.
2010) (quoting Monell, 436 U.S. at 694). To this end, “[a] plaintiff must identify: (1)
an official policy (or custom), of which (2) a policymaker can be charged with actual
or constructive knowledge, and (3) a constitutional violation whose ‘moving force’ is
that policy or custom.” Id. at 541-42 (quoting Pinedap v. City of Houston, 291 F.3d
325, 328 (5th Cir. 2002)). These three elements “are necessary to distinguish
individual violations perpetrated by local government employees from those that
can be fairly identified as actions of the government itself.” Piotrowski, 237 F.3d at
Plaintiff has not established municipal liability based upon an official
“Official municipal policy includes the decisions of a government’s
lawmakers, the acts of its policymaking officials, and practices so persistent and
widespread as to practically have the force of law.” Connick v. Thompson, 563 U.S.
51, 61 (2011). “These are actions for which the municipality is actually
responsible.” Id. (quotation omitted). In a typical § 1983 case involving a
governmental entity, the Court,
[r]eviewing the relevant legal materials, including state and local
positive law, as well as custom or usage having the force of law . . . must
identify those officials or governmental bodies who speak with final
policymaking authority for the local governmental actor concerning the
action alleged to have caused the particular constitutional or statutory
violation at issue.
Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989) (quotation omitted).
According to the United States Court of Appeals for the Fourth Circuit, “these
principles are equally applicable to a private corporation acting under color of state
law when an employee exercises final policymaking authority concerning an action
that allegedly causes a deprivation of federal rights.” Austin v. Paramount Parks,
Inc., 195 F.3d 715, 729 (4th Cir. 1999).
The parties have not briefed or clearly identified who would constitute an
MTC official with policy-making authority. Nor has Plaintiff directed the Court to
any allegedly unconstitutional officially adopted policy. Plaintiff does not seem to
argue that any specific decision or act of a policymaker constituted an
unconstitutional official policy of MTC, or that any of MTC’s official policies were
themselves unconstitutional, or that MTC’s officially adopted policies actually
caused a constitutional deprivation. Instead, Plaintiff appears to rely upon an
alleged pattern or practice of MTC which caused a violation of his Eighth
Plaintiff has not established municipal liability based upon pattern or
Plaintiff asserts that “MTC had unwritten policies, customs and practices of
failing to adequately train, supervise, investigate, and discipline its correctional
officers, failing to adequately staff the prison with trained and qualified guards,
failing to prevent improper relationships between guards and inmates, and allowing
the prison to be understaffed.” Pl.’s Mem.  at 16-18. The Court finds that
Plaintiff has not created a material fact question for trial regarding MTC’s liability
under § 1983 based upon a theory of pattern and practice.
In order to prove official policy through pattern and practice, a plaintiff must
demonstrate that there existed “a persistent, widespread practice of city officials or
employees, which, although not authorized by officially adopted and promulgated
policy, is so common and well settled as to constitute a custom that fairly represents
municipal policy.” Hicks-Fields v. Harris Cty., Texas, 860 F.3d 803, 808 (5th Cir.
2017) (quotation omitted). A plaintiff must also establish “actual or constructive
knowledge of such custom by the municipality or the official who had policymaking
authority.” Id. (quotation omitted).
Actual knowledge may be shown by such means as discussions at council
meetings or receipt of written information. Constructive knowledge
may be attributed to the governing body on the ground that it would
have known of the violations if it had properly exercised its
responsibilities, as, for example, where the violations were so persistent
and widespread that they were the subject of prolonged public
discussion or of a high degree of publicity.
Id. at 808-09 (quotation omitted).
“A pattern is tantamount to official policy when it is ‘so common and wellsettled as to constitute a custom that fairly represents municipal policy.’” Peterson
v. City of Fort Worth, Tex., 588 F.3d 838, 850 (5th Cir. 2009) (quoting Piotrowski,
237 F.3d at 578). A plaintiff must demonstrate a pattern of sufficiently similar and
numerous prior abuses that transcends a single error, and “[w]here prior incidents
are used to prove a pattern, they must have occurred for so long or so frequently
that the course of conduct warrants the attribution to the governing body of
knowledge that the objectionable conduct is the expected, accepted practice of city
employees.” Id. at 850-51 (quotation omitted). “A pattern requires similarity and
specificity; prior indications cannot simply be for any and all ‘bad’ or unwise acts,
but rather must point to the specific violation in question.” Id. at 851 (quotation
The existence of the Consent Decree does not by itself establish § 1983
The Court agrees with MTC that it cannot be held to a “standard of strict
liability for all prisoner harm that occurred at Walnut Grove . . . .” MTC’s Reply
 at 1. To hold that the existence of the Consent Decree and the Court’s Orders
in Depriest, by themselves, are sufficient to establish an official policy of MTC based
upon custom and practice as to every issue generally addressed in the Consent
Decree would effectively amount to holding MTC liable on a strict liability or
respondeat superior basis, a result expressly prohibited by Monell.
To the extent Plaintiff is claiming that MTC violated the Consent Decree in
Depriest, this case is not the appropriate proceeding to seek to enforce its terms.
While Plaintiff has relied upon the Consent Decree and the Monitors’ Reports in
opposition to summary judgment, the Court has only considered these items for
purposes of ascertaining whether Depriest could have created a fact question on
MTC’s notice or actual or constructive knowledge of a pattern of violations similar
to those specifically at issue in this case.
Plaintiff has not shown that MTC had an official custom or practice of
failing to protect inmates at WGCF from sexual abuse sufficient to
establish § 1983 municipal liability.
Plaintiff has not shown the existence of a sufficient number of prior similar
incidents which resemble the incident alleged in this case to establish the requisite
pattern of unconstitutional conduct. In Hicks-Fields v. Harris Cty., Texas, 860 F.3d
803 (5th Cir. 2017), the court was presented with a DOJ report which was issued
two years before the victim’s death at the Harris County jail. Hicks-Fields, 860
F.3d at 809. The Fifth Circuit determined that
even if the report is some admissible evidence relevant to Plaintiffs’
Monell claim, more is required: that evidence must be sufficient to
demonstrate that a question for trial remains as to whether there
existed a persistent, widespread practice of city officials or employees
that is so common and well settled as to constitute a custom that fairly
represents municipal policy. A successful showing of such a pattern
requires similarity and specificity; prior indications cannot simply be for
any and all bad or unwise acts, but rather must point to the specific
violation in question. While the specificity required should not be
exaggerated, our cases require that the prior acts be fairly similar to
what ultimately transpired . . . .
Id. (quotations and citations omitted) (emphasis added).
In Hicks-Fields, because “many of the constitutional deficiencies discussed in
the [DOJ] report [were] not on all-fours with those complained of by Plaintiffs,” the
evidence was “insufficient to clear the high bar of Monell liability” at the summary
judgment stage. Id. According to the Fifth Circuit, “[q]uite simply, under our
precedent, Plaintiffs have not produced sufficient evidence of similar acts to move to
trial.” Id. at 811 (citations omitted). The Court finds this reasoning applies to
Plaintiff’s pattern and practice claims in this case.
The summary judgment evidence here consists of records of seven prior
incidents during the relevant time period MTC was operating the facility. 10
However, all of these incidents involved different MTC employees and different
inmates, and the vast majority are not sufficiently factually similar to the incident
in this case to clear the high Monell bar of establishing municipal liability.
One of the incidents involved conduct which turned out to be unrelated to any
sexual activity. See Memo [85-4] at 8 (regarding June 11, 2014, incident). Two
incidents involved verbal comments made by officers to inmates which were sexual
in nature, but which were not offers of sexual favors or acts, nor were they requests
for sexual favors or acts. Report [85-4] at 11 (February 18, 2015, incident); Report
[85-4] at 13 (February 22, 2015, incident). Three of the other incidents involved
voluntary sexual activity or inappropriate touching between an inmate and an MTC
employee. See Report [85-4] at 9 (November 20, 2014, incident); Report [85-4] at 19
(December 19, 2014, incident); Report [84-5] at 16 (March 26, 2015, incident).11
During discovery, Plaintiff asked MTC to produce any information concerning
complaints made against WGCF correctional officers or employees for engaging in sexual
activity with inmates from the date MTC took over management of WGCF. MTC’s Resps.
to Pl.’s 1st Set of Request for Prod. of Docs. [81-16] at 2. In its April 11, 2016, Responses,
MTC indicated that it had “produced responsive information” based upon the time period
from March 7, 2014, to March 30, 2015, which included seven incidents. Id. The temporal
limitation applied by MTC in its response appears to be narrower than Plaintiff’s request.
There is no indication that Plaintiff sought to compel production of any incidents before
March 7, 2014. It is undisputed that none of these incidents involved either Plaintiff or
Plaintiff maintains that it is irrelevant whether an inmate voluntarily engages in
sexual relations with a correctional worker. The Court disagrees. While the Court
understands Plaintiff’s position that under MTC policy and Mississippi state law,
consensual sexual activity is prohibited, Plaintiff has not cited any controlling authority
which demonstrates that such voluntary sexual activity necessarily constitutes a violation
of the inmate’s federal constitutional rights under the Eighth Amendment. See, e.g.,
“These specific examples do not resemble—with sufficient similarity—the
constitutional violations alleged by Plaintiffs so as to establish the required pattern
of that unconstitutional conduct.” Hicks-Fields, 860 F.3d at 810. Indeed, it is
questionable whether some of these incidents would even rise to the level of a
The remaining, and most factually analogous, incident to Plaintiff’s would be
an incident that occurred on June 5, 2014. In that case, the officer allegedly
requested that an inmate engage in sexual conduct and threatened the inmate with
a Rule Violation Report. See Report [85-4] at 4. This incident, however, did not
result in a sexual assault. Even if this incident were sufficiently similar to
Plaintiff’s, it occurred more than nine months prior to Plaintiff’s, and standing
alone it is insufficient to demonstrate a persistent, widespread practice of MTC
employees sexually assaulting inmates or of MTC failing to protect inmates from
sexual assault by correctional officers.
Plaintiff also generally relies on the Court’s findings of constitutional
violations in Depriest, on the Consent Decree, and on the DOJ report, rather than
on specific instances of sufficiently-similar conduct which violated inmates’
Olivarez v. GEO Group, Inc., 844 F.3d 200, 205 (5th Cir. 2016) (holding that recordings of §
1983 plaintiff’s phone calls from prison had substantive value because they tended to
establish that the inmate plaintiff had “initiated consensual sex” with the defendant
correctional employee, a defense defendants had raised); see also Ashley v. Perry, No. CV
13-00354-BAJ-RLB, 2015 WL 9008501, at *3 n.6 (M.D. La. Dec. 15, 2015) (“Consensual sex
between consenting adults does not give rise to an Eighth Amendment violation simply
because it occurs within the walls of a prison.” (quotation omitted)). The issue as it
pertains to Plaintiff’s federal claim is whether MTC violated the Eighth Amendment, not
whether it violated state law or any MTC or MDOC policy.
constitutional rights. See Pl.’s Mem.  at 16-23. The DOJ report in Depriest was
issued while the prison housed youths and before MTC took over its management.
Plaintiff has not directed the Court to any competent summary judgment evidence
from Depriest itself that shows specific instances of conduct during the time period
after MTC took over management on June 18, 2012, until the date of the purported
incident on March 7, 2015, which were sufficiently similar to Plaintiff’s alleged
sexual assault to support a pattern and practice claim. The Court does not “have a
duty to sift through the record in search of evidence to support the nonmovant’s
opposition to summary judgment.” Edwards v. Cont’l Cas. Co., 841 F.3d 360, 363
(5th Cir. 2016) (quotation omitted).
Plaintiff has not presented competent summary judgment evidence to
establish that there was an official custom or practice of failing to train
or supervise sufficient to create municipal liability.
“In limited circumstances, a local government’s decision not to train certain
employees about their legal duty to avoid violating citizens’ rights may rise to the
level of an official government policy for purposes of § 1983.” Connick, 563 U.S. at
61. “A municipality’s culpability for a deprivation of rights is at its most tenuous
where a claim turns on a failure to train.” Id. “[A] municipality’s failure to train its
employees in a relevant respect must amount to deliberate indifference to the rights
of persons with whom the untrained employees come into contact.” Id. (quotation
omitted). “Only then can such a shortcoming be properly thought of as a city policy
or custom that is actionable under § 1983.” Id.
“Deliberate indifference is a stringent standard of fault, requiring proof that
a municipal actor disregarded a known or obvious consequence of his action.” Id.
(quotation omitted). Thus, when a city’s policymakers “are on actual or constructive
notice that a particular omission in their training program causes city employees to
violate citizens’ constitutional rights, the city may be deemed deliberately
indifferent if the policymakers choose to retain that program.” Id. In such a
situation, the Supreme Court has held that “[t]he city’s policy of inaction in light of
notice that its program will cause constitutional violations is the functional
equivalent of a decision by the city itself to violate the Constitution.” Id. at 61-62
(quotation omitted). “A less stringent standard of fault for a failure-to-train claim
would result in de facto respondeat superior liability on municipalities . . . .” Id. at
62 (quotation omitted).
For purposes of a failure-to-train claim under § 1983, a pattern of similar
constitutional violations by untrained employees is ordinarily necessary to
demonstrate deliberate indifference. Id. “Policymakers’ continued adherence to an
approach that they know or should know has failed to prevent tortious conduct by
employees may establish the conscious disregard for the consequences of their
action—the deliberate indifference—necessary to trigger municipal liability.” Id.
(quotation omitted). “Without notice that a course of training is deficient in a
particular respect, decisionmakers can hardly be said to have deliberately chosen a
training program that will cause violations of constitutional rights.” Id. For these
same reasons, the Fifth Circuit has required “actual or constructive notice of
ongoing constitutional violations” when municipal liability is premised upon failure
to supervise staff. Yara v. Perryton Indep. Sch. Dist., 560 F. App’x 356, 360 (5th
Cir. 2014); see also Clyce v. Hunt Cty., Tex., 515 F. App’x 319, 323 (5th Cir. 2013)
(applying same elements for failure-to-train and failure-to-supervise claims).
In this case, D.H. began working as a correctional officer for MTC at WGCF
in January 2013. D.H.’s Dep. [93-5] at 8-10. D.H. testified that he underwent a
training course at WGCF, and upon completion of training, he received a
certification indicating that he had completed the requisite number of hours of
training. Id. at 12. According to D.H., he completed a four-week training course,
including three weeks of classroom training and one week of “on-the-floor training.”
Id. at 13.
MTC has submitted D.H.’s Employee Acknowledgement [81-14] that he had
received the employee handbook and recognized that he must adhere to all MTC
policies. Employee Acknowledgement [81-14] at 7. D.H. also acknowledged that he
attended the Standards of Business Conduct Training on January 7, 2013,
conducted by MTC, and received training on MTC’s anti-harassment policy and its
Code of Ethics. Id. MTC has also supplied evidence tending to show all staff
completed PREA/Sexually Abusive Behavior Prevention refresher course in late
2013. See MTC Training Course [93-11] at 1-22.
Captain Moorehead was the highest ranking employee at WGCF during the
shift on the night Plaintiff was allegedly sexually assaulted. Capt. Moorehead’s
Dep. [93-7] at 22. Captain Moorehead described D.H. as a “good officer,” and when
asked if she had received any complaints about D.H., she responded that there were
some “general issues,” but “nothing major”—“just the general work stuff.” Id. at 9192. No other inmates had complained to Captain Moorehead about D.H. Id. at 9495.
Plaintiff’s designated correctional expert, Richard J. Subia (“Mr. Subia”),12
has testified that MTC’s actions in reviewing D.H.’s background were adequate, Mr.
Subia’s Dep. [93-13] at 39, and that there were no “red flags” that popped out in
D.H.’s personnel file, id. at 42. Mr. Subia testified that, in his opinion, MTC did
nothing wrong in hiring D.H. Id. at 45. As far as whether MTC did anything wrong
with respect to training D.H., Mr. Subia opined during his deposition that
[t]hat’s difficult because, based on some of the records, it appears to me
that MTC did not ensure that the employees that they trained, in fact,
were competent with the subject matter upon completion of the training,
if that makes sense. There are several documents that I reviewed that
would indicate to me that, yeah, they may have had training. This
person may have signed up for the training. This person may have taken
the training, but do they really understand the subject matter upon
completion of the training. And that’s where my -- my question comes
into play, as it relates these employees.
Id. With respect to D.H. specifically, Mr. Subia testified that “based on his behavior
would be – it would indicate to me that it didn’t matter that he took the training; he
still violated the policy.” Id. Mr. Subia agreed that if an individual was going to
commit a crime, it did not matter what training MTC provided the individual, the
training would not prevent the crime. Id. at 46.
The Court has not been provided with Plaintiff’s expert designations, but it
appears from the current record that Plaintiff has designated Mr. Subia as an expert in the
field of corrections. See Mr. Subia’s Report [93-12] at 2.
According to Mr. Subia, “[i]f MTC staff would have - - would have been
following their procedures and training, then, yeah, the people would have been
notified at the moment that the person tried to open the door . . . . That the officer
tried to open the door.” Id. at 51-52. In addition, the control booth operator should
have known that the cell door was open, documented it, and notified the
supervisors. Id. at 52-53. According to Mr. Subia,
it’s very clear that these staff were trained. They were trained in
security issues. They were trained in PREA. They were trained to have
the knowledge to indicate that these policies and procedures were put in
place, the purpose of them being put in place, and the outcome should
they be violated.· And in this case, had those officers followed the
training that they had been made aware of, then the violation would
have been stopped before it occurred, and acts would not have been
taken to fruition, and you wouldn’t have had the JM and -- and his cell
mate, because the officers were properly trained.
Well, this is what I mean. MTC had a policy, MTC trained their
officers and their policy, the officers and supervisors had a clear
understanding of the outcomes, should that policy be violated, and with
that knowledge continued to violate the policy, which let [sic] to the
outcome that we’re now here talking about.
Id. at 65-66. Mr. Subia concludes that “[i]n this situation, the staff were
appropriately trained and failed to follow the appropriate training, which led to our
outcome,” id. at 70, and that the supervisors “failed to supervise appropriately,” id.
As for any discipline issues with D.H. prior to the alleged incident with
Plaintiff, an Employee Performance Log indicates that on or about September 11,
2013, a supervisor had to speak with D.H. about unprofessional conduct, specifically
“cussing.” Log [81-14] at 1. D.H. informed the supervisor that “it was the offender
instead of him.” Id. On August 5, 2014, a supervisor entered a comment on D.H.’s
performance log indicating that he had arrived late for work. Id. at 9. There is no
indication that D.H. had been accused of any prior conduct similar to the alleged
sexual assault in this case.
The competent summary judgment evidence demonstrates that D.H. and
other officers assigned to Housing Unit 8 on the night in question had received
relevant training from MTC. See, e.g., D.H.’s Dep. [93-5] at 12-13, 25, 42; Capt.
Moorehead’s Dep. [93-7] at 61, 66; Officer Gill’s Dep. [93-8] at 12, 18, 40-41, 43-44;
Sergeant Morgan’s Dep. [93-10] at 12-13, 15, 16-18; Subia’s Dep. [93-13] at 45, 70.
Plaintiff has presented no competent summary judgment evidence from which a
reasonable jury could conclude that MTC failed to train its employees in relevant
areas, such as the Prison Rape Elimination Act (“PREA”), 42 U.S.C. § 15601, et seq.,
and the protection of inmates from abuse. Contra, e.g., D.H.’s Dep. [93-5] at 25
(testifying he received PREA training); Capt. Moorehead’s Dep. [93-7] at 61, 69
(testifying she had received training from MTC on PREA, protecting inmates from
abuse from fellow prisoners and correctional officers, and vulnerability of bisexual
and homosexual inmates for sexual abuse). Plaintiff’s evidence instead arguably
tends to show that, at worst, the officers either completely disregarded their
training or perhaps did not fully comprehend it. See, e.g., Subia’s Dep. [93-13] at 45,
70. This is not sufficient to show deliberate indifference on the part of MTC or the
existence of a policy or practice of failure to train.
Nor has Plaintiff presented sufficient competent summary judgment evidence
to create a fact question on whether an MTC policymaker was on actual or
constructive notice, prior to Plaintiff’s alleged sexual assault, that a particular
omission in MTC’s training program or methods of supervision caused its employees
to violate inmates’ constitutional rights. See Connick, 563 U.S. at 61; Yara, 560 F.
App’x at 360. Plaintiff has not directed the Court to a sufficient number of prior
similar constitutional violations which occurred after MTC took over management
of WGCF to place an MTC policymaker on notice about alleged deficiencies in
MTC’s training or supervision.
Without competent summary judgment evidence that an MTC policymaker
had actual or constructive knowledge that instances of failure to train or supervise
were resulting in constitutional violations, a jury would not have a sufficient
evidentiary basis to find MTC deliberately indifferent in choosing to retain its
training program, its supervisors, or its supervision structure. In sum, Plaintiff
cannot withstand summary judgment on his § 1983 claim based upon pattern or
practice of failing to train or supervise.
Plaintiff has not shown a pattern or practice of understaffing sufficient
to impose municipal liability.
“Mere understaffing, without more, is not proof of an official policy.” Gagne v.
City of Galveston, 671 F. Supp. 1130, 1135 (S.D. Tex. 1987), aff’d, 851 F.2d 359 (5th
Cir. 1988) (citing Anderson v. City of Atlanta, 778 F.2d 678, 687 (11th Cir. 1985)).
In Gagne, a § 1983 case which involved a pretrial detainee’s medical needs, the
district court explained that “[i]t would become so only if more complete funding
and staffing were possible, and that it was the deliberate intent of the policy
making official not to adequately fund and staff the jail, having in mind a gross
indifference to the medical needs of pretrial detainees.” Id.
“Knowledge of prison under-staffing and a decision not to increase the
number of guards on duty may amount to deliberate indifference to the safety and
well-being of the inmates, in violation of the Eighth Amendment.” Miles v.
Wilkinson, No. CIV A CV-06-1079-A, 2007 WL 5023592, at *7 (W.D. La. Nov. 26,
2007) (citing Edwards v. Gilbert, 867 F.2d 1271 (11th Cir. 1989); Anderson, 778
F.2d at 685). Miles held that to prevail on such a claim, the plaintiff had to prove
that there was a policy at the prison, promulgated or implemented by the warden
and/or the private-prison operator, of deliberate indifference to the risk of
understaffing and that this policy caused his injury. Id. (citing Greason v. Kemp,
891 F.2d 829, 838 (11th Cir. 1990); Westmoreland v. Brown, 883 F. Supp. 67, 76
(W.D. Va. 1995)). When understaffing appears to have contributed to a violation of
an inmate’s Eighth Amendment rights, a causal link exists between that violation
and the prison’s policy if officials are aware of the staffing problem but fail to take
corrective action. Id. (citing Greason, 891 F.2d at 837 n.18).
There is evidence in the record that WGCF was understaffed on the night in
question. See, e.g., Officer Gill’s Dep. [93-8] at 33-35, 66. However, mere
understaffing is not proof of an official policy. See Gagne, 671 F. Supp. at 1135.
Plaintiff has not pointed the Court to sufficient, competent summary judgment
evidence of a policy promulgated or implemented by MTC of deliberate indifference
to the risk of understaffing. See id. Nor has Plaintiff pointed the Court to any
competent summary judgment evidence tending to demonstrate how more complete
funding and staffing were possible at WGCF, or that it was the deliberate intent of
any MTC policymaker not to adequately fund and staff the prison. See id. Plaintiff
has not demonstrated that a genuine issue of material fact precludes summary
judgment on this claim.
Plaintiff has not shown that the limited, single-incident exception for
municipal liability applies.
There is a limited exception to the requirement of a pattern of similar
violations by which “a plaintiff may demonstrate liability based on a single incident
if the constitutional violation was the highly predictable consequence of a particular
failure to train.” Davidson v. City of Stafford, Texas, 848 F.3d 384, 397 (5th Cir.
2017), as revised (Mar. 31, 2017) (quotation omitted). Under this “narrow range” of
single-incident liability, “the unconstitutional consequences of failing to train could
be so patently obvious that a city could be liable under § 1983 without proof of a preexisting pattern of violations.” Connick, 563 U.S. at 64. A plaintiff must “show that
it was so predictable that failing to train the [employees] amounted to conscious
disregard” for the rights of those in the plaintiff’s position. Id. at 71 (emphasis in
Plaintiff has not demonstrated that the limited, single-incident exception to
the requirement of a pattern of similar violations applies in this case. Plaintiff has
not presented evidence from which a reasonable person could infer that the alleged
sexual assault was the “highly predictable consequence” of MTC’s official training or
supervisory policies. See Davidson, 848 F.3d at 397.
In sum, Plaintiff has not supplied sufficient competent summary judgment
evidence to survive MTC’s request for dismissal of his § 1983 claims. Because
Plaintiff has not created a fact question as to the other necessary elements of a §
1983 municipal-liability claim, the Court need not reach the question of whether
D.H. actually violated Plaintiff’s Eighth Amendment rights. Without more,
Plaintiff is unable to distinguish an individual constitutional violation allegedly
perpetrated by an individual employee from a violation that can be fairly identified
as an action of MTC itself. See Piotrowski, 237 F.3d at 578. Summary judgment is
appropriate as to Plaintiff’s federal § 1983 claims against MTC.
Plaintiff’s State-Law Claims
Plaintiff has not demonstrated that a triable issue of fact exists as to his
state-law negligent and/or grossly-negligent training and supervision
claims against MTC.
The Amended Complaint asserts that
MTC negligently, or grossly negligently, hired, supervised, and retained
its employees, specifically, D.H., inter alia, by a) failing to care for and
ensure the Plaintiff’s safety while at WGCF; b) failing to properly train,
supervise, discipline, retain, hire, and/or discharge its employees agents,
and/or representatives; and c) were otherwise negligent or grossly
negligent in their care and treatment of the Plaintiff, and as a direct and
proximate result, the Plaintiff sustained the harms alleged herein.
Am. Compl.  at 6.
MTC contends that under Mississippi law, Plaintiff “bears the burden of
proving that MTC possessed ‘either actual or constructive knowledge of [D.H.’s]
incompetence or unfitness before [MTC] will become liable for the negligent hiring
or retention of an employee who injures a third party.’” MTC’s Mem.  at 19
(quoting Brown v. Pontotoc County Sch. Dist. (In re Doe), 957 So. 2d 410, 417 (Miss.
Ct. App. 2007)). To the extent Plaintiff claims that MTC was negligent in
supervising D.H., MTC maintains that D.H.’s acts were the intervening and
superseding cause of Plaintiff’s injuries, id. at 20, and that it cannot be held liable
for such unforeseeable acts, id. at 20-21.
“Plaintiff concedes that there is no evidence to show that MTC negligently
hired or retained [D.H.] . . . .” Pl.’s Mem.  at 30. Thus, MTC’s Motion will be
granted as unopposed as to the state-law claim for negligent hiring or retention.
However, Plaintiff insists that “there is sufficient evidence to show that MTC
negligently supervised [D.H.].” Id. at 30-31.
The parties each rely upon Holmes v. Campbell Props., Inc., 47 So. 3d 721
(Miss. Ct. App. 2010), to support their positions. See MTC’s Mem.  at 19-20;
Pl.’s Mem.  at 31. In Holmes, a car wash employee attacked a customer with a
baseball bat, killing the customer. The customer’s estate filed a wrongful death suit
against the owners and operators of the car wash, and also advanced premises
liability and negligent hiring and retention claims. Holmes, 47 So. 3d at 723. The
lower court granted summary judgment in defendants’ favor.
On appeal, the Mississippi Court of Appeals noted that the plaintiff’s failureto-train and failure-to-supervise claims were negligence-based, but focused on the
alleged failure to train. Id. at 726 n.7 (citing Foradori v. Harris, 523 F.3d 477, 484
(5th Cir. 2008)). The Court declined to adopt a broad standard that violent behavior
by an employee is by itself sufficient evidence of a failure to train to establish
liability, and held that “the violent act of an employee standing along is simply
insufficient to defeat summary judgment on an allegation of failure to train.” Id. at
Although there is no Mississippi case law directly on point, courts in
other jurisdictions have generally recognized that specific evidence of an
employer’s actual or constructive knowledge of its employee’s dangerous
or violent tendencies is necessary in order to create a genuine issue of
material fact on an improper training or supervision theory of liability .
. . . This flows from the same logic behind our precedent holding that
the mere occurrence of an accident is insufficient evidence to hold a
premises owner liable. Cf. Byrne v. Wal-Mart Stores, Inc., 877 So.2d 462,
465 (¶ 6) (Miss. Ct. App. 2003) (citing Sears, Roebuck & Co. v. Tisdale,
185 So. 2d 916, 917 (Miss.1966)). As our supreme court once stated:
“[I]njury of itself confers no legal right; . . . danger of itself is not
negligence; and . . . negligence of itself is not liability.” Campbell v.
Willard, 205 Miss. 783, 793, 39 So.2d 483, 484 (Miss.1949).
Id. at 729 (collecting cases).
The Holmes Court found that
every indication is that the beating incident occurred in a matter of
seconds. Campbell Properties contends the episode happened without
warning, and the management of the car wash had no reason to know
or anticipate its employee would behave in such a violent manner.
There was no contradicting evidence of prior actual or constructive
knowledge of [the employee]’s violent nature. Nor is there any
indication of any actual or constructive knowledge that an atmosphere
of violence existed at the car wash. We are simply unable to locate any
evidence from Holmes tending to show a fact issue for the jury to resolve.
Id. Holmes held that the plaintiff failed to support his allegations with specific facts
showing genuine issues for trial and that the circuit court had properly granted
summary judgment for Campbell Properties on the plaintiff’s claims that “Campbell
Properties failed to train/regulate/supervise its employees or failed to control their
actions.” Id. at 730.
Plaintiff argues that, even if MTC had no actual or constructive knowledge as
to D.H.’s violent nature prior to the alleged sexual assault, MTC nevertheless had
knowledge that an “atmosphere of violence” existed at WGCF. Pl.’s Mem.  at 31.
According to Plaintiff, Depriest pointed out that “[r]apes and assaults were
commonplace,” and “[e]mployee misconduct was rampant.” Id. This does not show
how MTC had or should have had actual knowledge of D.H.’s specific tendencies,
which is insufficient to create a fact question within the meaning of Holmes as to
D.H.’s alleged dangerous or violent tendencies. See Holmes, 47 So. 3d at 728.
As for Plaintiff’s “atmosphere of violence” theory, the Court is not persuaded
that Holmes stands for the proposition that an atmosphere of any type of violence at
a prison renders it liable for negligent supervision or training of a rogue prison
guard who commits a single sexual assault. Following Plaintiff’s argument to this
logical conclusion would come dangerously close to finding the prison strictly liable
for any acts of its employees, as long as there was some general “atmosphere of
violence” at the prison. The Court does not read Holmes so broadly, and Plaintiff
has not directed the Court to any other controlling authority which stands for such
a proposition. Based upon the facts and holding in Holmes, the appropriate
question in this case appears to be whether there was an atmosphere of sexual
assaults by prison guards at WGCF at the time of Plaintiff’s alleged sexual assault,
sufficient to place MTC on reasonable notice that D.H. could behave in the manner
Plaintiff has not presented competent summary judgment evidence to
establish a fact question on this point. The Court is not persuaded that the Consent
Decree [93-15] or Orders [93-14], [93-16] in Depriest necessarily establish, by
themselves, that during the time MTC operated WGCF there was such an
atmosphere of sexual assaults by guards sufficient to create a fact question on
Plaintiff’s state-law negligent training and supervision claims as to D.H.
The Order [93-16] approving settlement and the Consent Decree [93-15] were
entered in March 2012, prior to MTC taking over management of the facility and
about three years before Plaintiff’s alleged assault. The second Court Order [93-14]
relied upon by Plaintiff was entered in June 2015, after Plaintiff’s incident, but
contains no specific mention of other incidents sufficiently similar to Plaintiff’s.
Much of that Order [93-14] was focused on evidence of other issues at WGCF, not
sexual assaults on inmates by correctional officers. At that time, the Court found
that “[m]uch of the danger still prevalent at Walnut Grove is attributable to gang
activity and the influence these organizations have over daily prison operations.”
Order [93-14] at 13. Plaintiff, however, has not alleged that he was injured due to
any gang-activity at the facility.13
The Court recognizes that one might argue that gang activity is peripherally
related to this case, because Plaintiff testified that D.H. threatened him and his cellmate to
engage in sexual activity by stating that “if y’all don’t do it I’m going to pay somebody to
fuck y’all up.” Pl.’s Dep.  at 35. Later in the morning during breakfast service, D.H.
again purportedly threatened the inmates. Id. at 38. Plaintiff testified that the gang
members would “do anything for spice,” and that he had “witnessed officers getting inmates
jumped on . . . at Walnut Grove.” Id. at 44. It does not appear that D.H. threatened
Plaintiff with gang violence specifically, and Plaintiff has not directed the Court to any
record evidence on this point.
While the June 2015 Order [93-14] did note the past “history of staff
corruption at the facility, ranging from sexual and physical assault by guards, to
guards assisting inmates in the assault of other inmates,” Order [93-14] at 15-16
(footnotes omitted), the only specific incident cited by the Court which occurred
after MTC took over control of WGCF was a riot in July 2014. Id. at 16 n.43.
Plaintiff’s alleged incident did not occur during a riot.
Even though Plaintiff has not referred to them in support of this particular
state-law claim, see Pl.’s Mem.  at 30-33, the seven specific incidents Plaintiff
relied upon in support of his § 1983 claim, whether considered alone or in toto, do
not reflect the existence of such an atmosphere of sexual assaults by guards during
the time MTC controlled WGCF to support an “atmosphere” of guard-on-inmate
Viewing the facts and drawing reasonable inferences in the light most
favorable to Plaintiff, a triable issue of fact does not exist on whether MTC
management knew, had reason to know, or anticipated that D.H. would behave in
the manner Plaintiff alleges. Plaintiff has not presented any contradicting evidence
of prior actual or constructive knowledge of D.H.’s violent nature. Nor is there any
indication of any actual or constructive knowledge by MTC that an atmosphere of
sexual assaults by prison guards existed at the facility during the time MTC
controlled WGCF. Plaintiff’s state-law negligent and/or grossly-negligent training
and supervision claims will be dismissed.
Genuine disputes of material fact exist on Plaintiff’s state-law
respondeat superior and vicarious liability claims against MTC.
The Amended Complaint asserts that
Defendant MTC and other unknown WGCF correctional officers (Does
1-100) acted with negligence, gross negligence, and/or intentionally
allowed or failed to prevent the Plaintiff’s sexual assault on March 7,
2015. At all times relevant, each Defendant owed a duty to the Plaintiff
to ensure his safety, and the Defendants breached this duty. The actions
and inactions of Defendant MTC and/or other WGCF correctional
officers led directly to the injuries suffered by the Plaintiff. Defendant
MTC, as Defendant John and Jane Does 1-100’s employer, is liable for
their actions which were undertaken during the course and scope of
their employment with Defendant MTC.
Am. Compl.  at 6.
“[T]he doctrine of respondeat superior, from which vicarious liability is
derived, . . . specifically applies to an employer-employee relationship and holds
employers liable in tort for the negligent actions of their employees, taken on behalf
of the employer while in the course and scope of their employment.” Cooper v. Sea
W. Mech., Inc., 219 So. 3d 550, 553 (Miss. Ct. App. 2017) (quoting Thomas v. Cook,
170 So. 3d 1254, 1260 (Miss. Ct. App. 2015)). “In determining whether an employee
is acting within the scope of his employment, the proper question to ask is ‘was he
at the time doing any act in furtherance of his master[’s] business?’” Id. (quoting
Holliday v. Pizza Inn Inc., 659 So. 2d 860, 864 (Miss. 1995)).
MTC argues that it is not vicariously liable for the acts or omissions of any
employee acting outside the course and scope of his employment, such as D.H. in
this case. MTC’s Mem.  at 13-15. Plaintiff does not dispute MTC’s legal
argument, but counters instead that MTC is liable under respondeat superior for
the purportedly negligent or grossly negligent actions of other MTC employees in
not preventing the alleged assault. Pl.’s Mem.  at 26; see also Am. Comp.  at
6. These employees include the officers and supervisors who were on duty with
D.H. in Housing Unit 8 at the time of the incident.
The Amended Complaint contains allegations that other unknown WGCF
correctional officers acted with negligence or gross negligence, and/or intentionally
allowed or failed to prevent the sexual assault on Plaintiff. Plaintiff has presented
competent summary judgment evidence that specific MTC employees other than
D.H. may have acted negligently on the night in question. This includes testimony
indicating that the pod control officer, Officer Gill, did not observe D.H. open
Plaintiff’s cell door, either visually or on her control board, even though the cell was
“[r]ight in front of [her],” Officer Gill’s Dep. [93-8] at 61, and the parties do not seem
to dispute that D.H. did in fact open Plaintiff’s cell door. There is also record
evidence tending to show that Officer Gill might have been asleep in the control
booth at the time. See, e.g., R.H.’s Dep. [93-1] at 14, 16; Mr. Subia’s Dep. [93-13] at
68-69; Capt. Moorehead’s Dep. [93-7] at 85-87.
Plaintiff has further presented evidence indicating that supervisors may not
have conducted the required walkthroughs in the housing unit during that shift,
see, e.g., Officer Gill’s Dep. [93-8] at 21-22, 36-37; Capt. Moorehead’s Dep. [93-7] at
47-49, and that employees may have failed to properly log their activities in the
logbooks, see, e.g., Officer Gill’s Dep. [93-8] at 23-25, 64; Capt. Moorehead’s Dep.
[93-7] at 47-49, 87-88. The record evidence also reflects that Captain Moorehead’s
interpretation of the assignments on the night in question was different than that of
the employees whom she assigned to work in Housing Unit 8. This suggests some
confusion among the ranks as to the division of responsibility for the shift that
evening. See, e.g., Capt. Moorehead’s Dep. [93-7] at 88-89; Officer Gill’s Dep. [93-8]
at 33-35, 66; Sergeant Morgan’s Dep. [93-10] at 9.
Viewing the facts and drawing all reasonable inferences in the light most
favorable to Plaintiff as the nonmoving party, a genuine dispute of material fact
exists as to whether MTC can be held liable on a state-law respondeat superior or
vicarious liability theory based upon the negligence of employees other than D.H.
MTC’s Motion for Summary Judgment will be denied as to this claim.14
Plaintiff’s punitive damages claim should be dismissed.
The Amended Complaint seeks an award of punitive damages. Am. Compl.
 at 7. MTC posits that it cannot be held vicariously liable for punitive damages
based upon D.H.’s actions, and Plaintiff cannot demonstrate that any conduct on
MTC’s own part warrants imposition of punitive damages. MTC’s Mem.  at 23.
Plaintiff responds that this issue is not ripe for consideration, but that “punitive
damages are appropriate against MTC pursuant to § 11-1-65 of the Mississippi
MTC also makes an intervening- and superseding-cause argument. See MTC’s
Reply  at 9. “A superseding cause is an act of a third person or other force which by its
intervention prevents the actor from being liable for harm to another which his antecedent
negligence is a substantial factor in bringing about.” Rausch v. Barlow Woods, Inc., 204 So.
3d 796, 801 (Miss. Ct. App. 2016) (quotation omitted). “For such [an] intervening and
super[s]eding cause to extinguish the liability of the original actor, the cause must be
unforeseeable.” Id. (quoting Newell v. S. Jitney Jungle Co., 830 So. 2d 621, 623 (Miss.
2002)). This argument is not persuasive. MTC has not shown that D.H.’s alleged actions
were so unforeseeable to it that they constituted an intervening or superseding act
Code . . . .” Pl.’s Mem.  at 33-34. Plaintiff urges the Court to “defer the issue of
punitive damages” until after the liability phase of trial concludes, but if it does not,
“Plaintiff submits that genuine issues of material fact preclude summary judgment .
. . .” Id. at 34.
Mississippi Code § 11-1-65(1)(a) provides that,
[i]n any action in which punitive damages are sought:
Punitive damages may not be awarded if the claimant does not
prove by clear and convincing evidence that the defendant against
whom punitive damages are sought acted with actual malice,
gross negligence which evidences a willful, wanton or reckless
disregard for the safety of others, or committed actual fraud.
Miss. Code Ann. § 11-1-65(1)(a).
“To prevail on a claim for punitive damages, the plaintiff must prove that the
breach was the result of an intentional wrong or that a defendant acted maliciously
or with reckless disregard of the plaintiff’s rights.” Daniels v. Crocker, No. 2016CA-00566-SCT, 2017 WL 2505196, at *11 (Miss. June 8, 2017) (quotation omitted).
“The issue of punitive damages should be addressed by the trial judge in accordance
with Section 11-1-65(1)(b) after it is determined whether or not the [plaintiffs] are
entitled to an award for compensatory damages.” Id. at *12.
Here, Plaintiff’s only remaining claim against MTC is a state-law respondeat
superior or vicarious liability claim based upon alleged negligence or gross
negligence of employees other than D.H. Though the parties have not cited any
controlling authority directly on point,15 district courts in the Southern and
MTC argues that Mississippi Code § 11-1-65(1)(a) “absolutely forecloses vicarious
liability for punitive damages,” and cites Duggins v. Guardianship of Washington, 632 So.
2d 420, 433 (Miss. 1994). MTC’s Mem.  at 23. MTC’s quotation from this case is from a
Northern Districts of Mississippi have routinely held that punitive damages are not
available under the Mississippi law based solely upon vicarious liability. See, e.g.,
King v. Cole’s Poultry, LLC, No. 1:14-cv-88-MPM-DAS, 2016 WL 6993763, at *12
(N.D. Miss. Nov. 29, 2016) (collecting cases); Littlejohn v. Werner Enterprises, Inc.,
No. 1:14-CV-00044-SA-DAS, 2015 WL 3484651, at *2 (N.D. Miss. June 2, 2015)
(citing Duggins v. Guardianship of Washington Through Huntley, 632 So. 2d 420,
433 (Miss. 1993) (Lee, J., dissenting)); Bass v. Hirschbach Motor Lines, Inc., No.
3:14CV360-TSL-JCG, 2014 WL 5107594, at *3 (S.D. Miss. Oct. 10, 2014); Bradley v.
Wal-Mart Stores, Inc., No. 2:04CV360-JMR, 2006 WL 2792338, at *4 (S.D. Miss.
Sept. 27, 2006); see also Gamble ex rel. Gamble v. Dollar General Corp., 852 So. 2d
5, 15 (Miss. 2003) (looking only to the acts of Dollar General itself, not those by its
employee alone which violated store policy, in determining if the proof offered at
trial demonstrated the question of punitive damages should have been allowed to go
to the jury). The Court finds the reasoning of these cases persuasive and will grant
MTC’s Motion for Summary Judgment as to punitive damages.
To the extent the Court has not addressed any of the parties’ arguments, it
has considered them and determined that they would not alter the result. MTC’s
Motion for Summary Judgment  should be granted in part and denied in part,
and Plaintiff’s Supplemental Motion to Strike  should be denied as moot.
dissent on a petition for rehearing which the Mississippi Supreme Court denied, not from
the majority’s opinion. See Duggins, 632 So. 2d at 433 (Lee, J., dissenting).
IT IS, THEREFORE, ORDERED AND ADJUDGED that, Defendant
Management & Training Corporation’s Motion for Summary Judgment  is
GRANTED IN PART as to Plaintiff’s federal claims and as to Plaintiff’s state-law
negligent and grossly-negligent hiring, retention, training, and supervision and
punitive damages claims, and DENIED IN PART as to Plaintiff’s state-law
respondeat superior and vicarious liability claims as to the allegedly negligent
conduct of employees other than D.H.
IT IS, FURTHER, ORDERED AND ADJUDGED that, Plaintiff J.M.’s
Supplemental Motion to Strike  is DENIED AS MOOT.
SO ORDERED this the 5th day of September, 2017.
s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE
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