Brown et al v. Smith

Filing 8

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 4 Report and Recommendations. A separate judgment will be entered in accordance with Federal Rule of Civil Procedure 56. Signed by District Judge Daniel P. Jordan, III on 1/9/2017 (ND)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION

DAVID BROWN AND LUCY MOORE
V.

PLAINTIFFS
CIVIL ACTION NO. 3:16-CV-612-DPJ-FKB

RICHARD SMITH, ET. AL

DEFENDANTS
ORDER

This pro se case is before the Court on United States Magistrate Judge F. Keith Ball’s
Report and Recommendation (R&R) [4] in which he recommends dismissal under 28 U.S.C.
§ 1915(e)(2)(b) for failure to state a claim upon which relief may be granted. For the reasons
that follow, the Court agrees that this matter should be dismissed without prejudice.
It appears that Plaintiff David Brown is, or has been, incarcerated in Warren County,
Mississippi. According to the Complaint, Brown has been “sick” since 1994, has received
behavioral health care “many times,” and “is living off God and medicine.” Compl. [1] at 3. On
August 4, 2016, he and his mother Lucy Moore filed a complaint [1] suing Richard Smith, the
District Attorney for Warren County, and Circuit Court Judge Isadora Patrick. Plaintiffs also
have a pending motion seeking in forma pauperis (IFP) status. See Mot. [2].
On October 13, 2016, the Magistrate Judge recommended that the Court grant IFP status.
R&R [4] at 1. The Court agrees and hereby grants Plaintiffs’ motion. But proceeding IFP
triggers § 1915(e)2)(B)(ii), which states that “the court shall dismiss the case at any time if the
court determines that . . . the action . . . fails to state a claim on which relief may be granted.” On
this basis, the Magistrate Judge also recommended dismissal because even a liberal reading of
the pro se complaint left the court “unable to determine the legal basis for Plaintiffs’ claim, the

type of relief they are seeking, or even whether the Court has jurisdiction.” R&R [4] at 3.
Plaintiffs were given fourteen (14) days to file an objection, and were counseled that they could
“amend their complaint within fourteen (14) days.” Id. at 4. The Court later extended the
deadline for filing objections until January 6, 2017. Order [6. ], On January 5, Moore filed an
objection on behalf of herself and her son that generally repeats the allegations of her complaint.
No motion to amend has been filed.
Although the Report and Recommendation did not offer great detail regarding the
deficiencies in the Complaint, the undersigned agrees that it fails to state a claim. To survive
under Federal Rule of Civil Procedure 12(b)(6), a 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). The present Complaint, even as supplemented by Plaintiffs’ objections, falls well short
of this mark.
To begin with, it is not apparent how Plaintiff Moore has standing to sue these defendants
as it is her son who was apparently incarcerated.1 As for Brown’s claims, the allegations in the
Complaint appear to relate to the conditions of his confinement, yet he has sued the district
attorney and the circuit court judge. Again, it is not apparent from the Complaint how these
officials can be liable for the conditions of confinement—an issue usually involving those
responsible for administering the incarceration. Moreover, the Complaint lacks sufficient facts
to overcome prosecutorial and judicial immunity. See Imbler v. Pachtman, 424 U.S. 409, 430
(1976) (holding that prosecutors enjoy absolute immunity when their actions are “intimately
associated with the judicial phase of the criminal process”); Davis v. Tarrant Cnty., Tex., 565

1

Moore is cautioned that unless she is a licensed attorney, she may not represent her son in legal
proceedings. See Miss. Code. Ann. § 73-3-55.
2

F.3d 214, 221 (5th Cir. 2009) (“A judge generally has absolute immunity from suits for
damages.”). And even if Plaintiffs had named the correct defendants, it appears from the
Complaint and Objection that Brown is receiving some care, though not the care Moore would
want for him. To state a valid claim under 42 U.S.C. § 1983, an inmate must show deliberate
indifference; mere disagreement with the care provided is not sufficient. See Norton v.
Dimazana, 122 F.3d 286, 292 (5th Cir.1997).
This list of deficiencies is not meant to be exhaustive, but it is sufficient to find that the
Report and Recommendation should be adopted by the Court. Moreover, the Court will not
construe a motion to amend, because Plaintiffs failed to file such a motion within the time
Magistrate Judge Ball allowed and because they appear to have pleaded their best case as to
these defendants. But because Defendants have not been called upon to answer, dismissal will
be without prejudice.
A separate judgment will be entered in accordance with Federal Rule of Civil Procedure
56.
SO ORDERED AND ADJUDGED this the 9th day of January, 2017.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE

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