Harris v. Sistrunk et al
MEMORANDUM OPINION AND ORDER OF PARTIAL DISMISSAL: Officer Duck Doe is voluntarily dismissed by plaintiff, and dismissal of this defendant is without prejudice. The claims against Chief Lisa Doe are dismissed with prejudice as frivolous and for fail ure to state a claim upon which relief could be granted. This dismissal counts as a strike. Defendants Sheriff's Department and Leake County Jail are dismissed without prejudice. The remainder of the case shall proceed. Signed by District Judge Tom S. Lee on 2/16/17 (copy of opinion and NEF mailed to LaDale Harris #575517, Milwaukee Secure Detention Facility, P.O. Box 05911, Milwaukee, WI 53205-0911) (LWE)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
LA’DALE HARRIS, # 575517
CIVIL ACTION NO. 3:16cv870-TSL-RHW
LIEUTENANT MICHAEL SISTRUNK,
OFFICER ADAM WADE, TRANSPORT
OFFICER DUCK DOE, CHIEF OF
SECURITY LISA DOE, and SHERIFF
DEPARTMENT OF LEAKE COUNTY JAIL
MEMORANDUM OPINION AND ORDER OF PARTIAL DISMISSAL
This matter is before the court sua sponte.
plaintiff La’Dale Harris is incarcerated with the Wisconsin
Department of Corrections.
He challenges the conditions of his
prior confinement at the Leake County Jail, in Carthage,
The court has considered and liberally construed
As set forth below, defendants Transport Officer
Duck Doe, Chief of Security Lisa Doe, and “Sheriff Department of
Leake County Jail” are dismissed.
(Compl. at 1).
Harris claims that he was attacked by two State inmates,
while he was housed at the Leake County Jail.
Harris, Defendant Officer Adam Wade was supposed to be watching
the security cameras at the time, but he had abandoned his post.
Harris disavows any prior knowledge by Wade that the alleged
attack would take place, but Harris contends that Wade was
negligent and acted in retaliation for a prior lawsuit.
result, Harris was allegedly punched and kicked multiple times
and received a laceration above his right eye, a compression
fracture to his back, and injuries to his face, left hip, and
upper left leg.
Harris was subsequently transported to the hospital by
defendant Transport Officer Duck Doe.
Harris contends that the
doctor prescribed more inpatient treatment, but defendant
Lieutenant Michael Sistrunk ordered that plaintiff be transported
back to the jail instead.
According to Harris, Sistrunk then
placed him in a holding cell with no mattress for three days,
despite the fact that his back was injured.
ibuprofen at the jail.
Harris was given
It is not clear if he is alleging that he
was not given the pain medicine prescribed by the doctor.
Harris filed this Complaint, invoking 42 U.S.C. § 1983 and
He alleges a denial of medical treatment against
Sistrunk and Duck and asserts a failure to protect, negligence,
and retaliation against Wade.
Besides these defendants, Harris
also sues Chief of Security Lisa Doe and the “Sheriff Department
of Leake County Jail.”
Chief Lisa is sued because she allegedly
violated Equal Protection when she would not let Harris press
criminal charges against the two inmates who beat him.
has subsequently moved to dismiss Duck.
relief and compensatory damages.
Harris seeks declaratory
The Prison Litigation Reform Act of 1996, applies to
prisoners proceeding in forma pauperis in this court.
statute provides in pertinent part, “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. §
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).
“[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).
court is authorized to test the proceeding for frivolousness or
maliciousness even before service of process or before the filing
of the answer.”
The court has permitted Harris to proceed
in forma pauperis in this action.
His Complaint is subject to
sua sponte dismissal under § 1915.
Among others, Harris sues Duck, Chief Lisa, and the
Sheriff’s Department and Jail.
On February 13, 2017, Harris clarified that he is
voluntarily dismissing Officer Duck.
This defendant is therefore
dismissed without prejudice.
Harris accuses Chief Lisa of “violat[ing] my equal
protection rights by . . . depriving me of my constitutional
right to commence charges as I[’]ve constantly reported to her
that I want to pursue charges.
On [sic] the two inmates.”
(Resp. at 2).
First, to state an equal protection claim, a plaintiff must
allege (1) he was intentionally discriminated against because of
his membership in a protected class, or (2) he was “intentionally
treated differently from others similarly situated and that there
is no rational basis for the difference in treatment.”
Tex. Dep’t of Ins., 700 F.3d 227, 238 (5th Cir. 2012). Harris
does not allege that he was treated differently because of his
membership in a protected class, and he does not identify anyone
else who was allowed to file criminal charges against fellow
Second, Harris does not have a constitutional right to
institute criminal proceedings.
60 (5th Cir. 1990).
Oliver v. Collins, 914 F.2d 56,
The allegations against Chief Lisa are
frivolous and fail to state a claim upon which relief could be
Finally, Harris sues the Sheriff Department of Leake County
Both the jail and Sheriff’s Department’s capacities to be
sued are determined by Mississippi law.
Fed. R. Civ. P.
In Mississippi, a county jail and a Sheriff’s
Department are not separate legal entities which may be sued,
rather they are extensions of the county.
Tuesno v. Jackson, No.
5:08cv302-DCB-JMR, 2009 U.S. Dist. LEXIS 61416 at *2-3 (S.D.
Miss. Apr. 30, 2009); Brown v. Thompson, 927 So. 2d 733, 737
(¶12) (Miss. 2006).
Therefore, the Sheriff’s Department and
Leake County Jail are dismissed.
IT IS THEREFORE ORDERED AND ADJUDGED that, for the reasons
stated above, defendant Transport Officer Duck Doe should be, and
is hereby, DISMISSED WITHOUT PREJUDICE, pursuant to Federal Rule
of Civil Procedure 41(a).
IT IS FURTHER ORDERED AND ADJUDGED that the claims against
defendant Chief of Security Lisa Doe are DISMISSED WITH PREJUDICE
as frivolous and for failure to state a claim upon which relief
could be granted.
This dismissal counts as a strike pursuant to
28 U.S.C. § 1915(g).
IT IS FURTHER ORDERED AND ADJUDGED that defendant Sheriff
Department of Leake County Jail is DISMISSED WITHOUT PREJUDICE.
The remainder of this case shall proceed.
SO ORDERED AND ADJUDGED, this the 16th day of February,
/s/Tom S. Lee
UNITED STATES DISTRICT JUDGE
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