Claiborne v. Shaw et al
Filing
12
ORDER OF PARTIAL DISMISSAL: For the reasons set out in the Order, Defendant Lieutenant Struting is DISMISSED WITHOUT PREJUDICE for failure to state a claim against him upon which relief could be granted. The remainder of the case shall proceed. Signed by Chief District Judge Daniel P. Jordan III on February 23, 2018.(SP)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
TOMMIEL QUENPONTA CLAIBORNE,
# 191617
VERSUS
PLAINTIFF
CIVIL ACTION NO. 3:17-CV-734-DPJ-FKB
WARDEN F. SHAW, LIEUTENANT
STRUTING, CAPTAIN JONES, OFFICER
MCWILLIAMS, UNIT MANAGER
DONALD, and LIEUTENANT MCCLAREN
DEFENDANTS
ORDER OF PARTIAL DISMISSAL
This pro se prisoner case is before the Court, sua sponte, for consideration of dismissal.
Plaintiff Tommiel QuenPonta Claiborne is incarcerated with the Mississippi Department of
Corrections (“MDOC”), and he brings this action under 42 U.S.C. § 1983, challenging the
conditions of his confinement. The Court has considered and liberally construed the pleadings.
As set forth below, Defendant Lieutenant Struting is dismissed.
I.
Background
Claiborne alleges that during July, 2017, he was housed in the lockdown Security Threat
Group Unit at East Mississippi Correctional Facility. Claiborne claims that Defendant Unit
Manager Donald ordered that sprinklers be turned on in the unit for testing. Defendant Officer
McWilliams then informed Claiborne and the other inmates and directed them to move their
property to their beds. Claiborne allegedly asked McWilliams to allow him out of the cell, with
his legal papers, before the sprinklers came on because the “legal papers [were] very important . .
. to prove [his] innocen[ce].” Compl. [1] at 4. Particularly, Claiborne contends that he had an
affidavit from a witness that Claiborne believes exculpates him. According to the pleadings,
McWilliams refused, because Defendant Captain Jones ordered that the prisoners would not be
moved from their cells during the testing. Claiborne also alleges that Defendant Lieutenant
McClaren was present and did not enforce the MDOC policy that would have allowed for the
removal of Plaintiff’s property. Plaintiff claims he moved his legal work to his bed, but the
papers were still soaked, and he is now unable to present them in court. Claiborne claims that
the sprinklers also sprayed him, his cell, and belongings, including his bed.
Claiborne alleges that he complained to Defendant Warden F. Shaw and Donald after the
incident but the legal papers have not been replaced.
Claiborne initiated this action on September 12, 2017, pursuant to § 1983, asserting
claims for a deprivation of property without due process and cruel and unusual punishment,
under the Fifth and Eighth Amendments. Claiborne also appears to be claiming a denial of
access to courts. Besides the above Defendants, Claiborne sues Lieutenant Struting, even though
Claiborne does not think Struting was there. Rather, Claiborne sues Struting, because, “if he
played apart . . . then he is . . . responsible. . . . I did not see Lt. Struting non[e] that day but this
does not means [sic] he didn’t play as Lt. [sic] of this shift as well as Lt. McClaren.” Pl.’s 2nd
Resp. [11]. Claiborne asks for the return of his legal work.
II.
Discussion
The Prison Litigation Reform Act of 1996, applies to prisoners proceeding in forma
pauperis in this Court. One of the provisions reads, “the court shall dismiss the case at any time
if the court determines that . . . the action . . . (i) is frivolous or malicious; (ii) fails to state a
claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is
immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). The statute “accords judges not only the
authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual
2
power to pierce the veil of the complaint’s factual allegations and dismiss those claims whose
factual contentions are clearly baseless.” Denton v. Hernandez, 504 U.S. 25, 32 (1992). “[I]n an
action proceeding under [28 U.S.C. § 1915, a federal court] may consider, sua sponte,
affirmative defenses that are apparent from the record even where they have not been addressed
or raised.” Ali v. Higgs, 892 F.2d 438, 440 (5th Cir. 1990). “Significantly, the court is
authorized to test the proceeding for frivolousness or maliciousness even before service of
process or before the filing of the answer.” Id. The Court has permitted Claiborne to proceed in
forma pauperis in this action. The Complaint is subject to sua sponte dismissal under § 1915.
Claiborne sues Lieutenant Struting, among others, alleging the loss of legal papers and
cruel and unusual punishment. Claiborne admits however that he does not know if Struting was
involved but is suing him only because he may have been a shift commander.
“There is no vicarious or respondeat superior liability of supervisors under section
1983.” Rios v. City of Del Rio, 444 F.3d 417, 425 (5th Cir. 2006). Rather, the supervisor must
either be personally involved in the violation or otherwise have caused the violation. Id. All that
is alleged against Struting is that he is a Lieutenant and that he may have been a shift commander
that day. Claiborne admits that he does not know whether Struting was involved in the incident
or not. This fails to state a claim against Struting upon which relief can be granted.
III.
Conclusion
IT IS THEREFORE ORDERED AND ADJUDGED that, for the reasons stated above,
Defendant Lieutenant Struting is DISMISSED WITHOUT PREJUDICE for failure to state a
claim against him upon which relief could be granted. The remainder of the case shall proceed.
SO ORDERED AND ADJUDGED this the 23rd day of February, 2018.
s/ Daniel P. Jordan III
CHIEF UNITED STATES DISTRICT JUDGE
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?