Johnson v. Jackson et al

Filing 51

MEMORANDUM OPINION AND ORDER granting Christopher Epps's 45 Motion to Dismiss; Epps is dismissed with prejudice. Signed by Magistrate Judge Linda R. Anderson on 8/30/2013. (ACF)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
MARCUS JERMAINE JOHNSON
VS.

PLAINTIFF
CIVIL ACTION NO. 4:11CV152-LRA

RAY CHARLES JACKSON, ET AL

DEFENDANTS

MEMORANDUM OPINION AND ORDER
Defendant Christopher Epps, Commissioner of the Mississippi Department of
Corrections, filed a Motion to Dismiss pursuant to Rule 12(b)(6) and 12(b)(1) of the
Federal Rules of Civil Procedure [45]. Marcus Jermaine Johnson [hereinafter "Plaintiff"]
has not responded to the motion or otherwise objected to the relief requested. This
motion is now before the Court.
I. Facts and Procedural History
Jurisdiction of this case is based upon 42 U.S.C. § 1983. Plaintiff was incarcerated
in the custody of the Mississippi Department of Corrections (“MDOC”) in the East
Mississippi Correctional Facility (“EMCF”) in Meridian, Mississippi, during the pertinent
period.
Plaintiff contends that prison officials at EMCF used excessive force on him and
retaliated against him after he complained. His claim against Defendant Epps is only that
Epps responded to the grievance Plaintiff filed through the Administrative Remedy
Program (“ARP”) in an unsatisfactory manner. Plaintiff admitted at the omnibus hearing

conducted by the Court that Commissioner Epps had no personal involvement in his
complaints; Plaintiff was not pleased with the results of the ARP proceedings.
In the Complaint [1-10], paragraph 8, Plaintiff states as follows:
Defendant Christopher B. Epps after hearing of the complaint
after it reached Parchman, MS, he should have made
recommendations about (Defendant Sgt. Jackson) in this
facility going by MDOC policy to reduce assaults that occur
within this facility. Defendant Epps does not enforce the
policy of MDOC and letting inmates rights be violated by
employees of MDOC/EMCF/GEO. This violates Plaintiff’s
right to be free from harm, protection from discrimination,
free from harassment while working under the 8th Amendment
& 14th Amendment of the United States Constitution.
In his prayer for relief, Plaintiff requests that Epps “enforce the special training of
the GEO Group Inc. so MDOC inmates [are] not around employees of unexperienced
handling of mental[ly]-ill inmates.” [1-12].
At the omnibus hearing, when asked to explain his claims against Epps, Plaintiff
only stated that he was not pleased with Epps’s handling of his ARP— but that Epps was
not personally involved in his claims.
II. Standard of Review

In considering a motion under Rule 12(b)(6), the “court accepts ‘all well-pleaded
facts as true, viewing them in the light most favorable to the plaintiff.’ “ Martin K. Eby
Constr. Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir.2004) (quoting
Jones v. Greninger, 188 F.3d 322, 324 (5th Cir.1999)). To overcome a Rule 12(b)(6)
motion, Plaintiff must plead “enough facts to state a claim to relief that is plausible on its

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face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “Factual allegations must be
enough to raise a right to relief above the speculative level, on the assumption that all the
allegations in the complaint are true (even if doubtful in fact).” Id. at 555 (citations and
footnote omitted). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 556). It follows that “where the well-pleaded facts do not permit
the court to infer more than the mere possibility of misconduct, the complaint has
alleged-but it has not ‘show[n]’-‘that the pleader is entitled to relief.’ “ Id. at 1950
(quoting Fed.R.Civ.P. 8(a)(2)).
III. Analysis
When questioned by the Court, Plaintiff replied that his only claim against
Defendant Epps is that Epps's response to his grievance in the ARP proceedings was
inadequate. But Plaintiff has no constitutional right to a grievance procedure, and he has
no due process liberty interest right to have his grievance resolved to his satisfaction. See
Geiger v. Jowers, 404 F.3d 371, 374-75 (5th Cir. 2005). Even if Epps failed to adequately
investigate Plaintiff’s grievance, this would still not give rise to a constitutional claim
under Geiger. See also Dehghani v. Vogelgesang, 226 F.App’x 404, 406 (5th Cir. 2007)
(allegation that warden failed to adequately investigate a grievance did not amount to a
constitutional violation).

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"To state a claim under § 1983, a plaintiff must allege the violation of a right
secured by the Constitution and laws of the United States, and must show that the alleged
deprivation was committed by a person acting under color of state law." West v. Atkins,
487 U.S. 42, 28 (1988). Furthermore, there is no liability under section 1983 under a
theory of respondeat superior. Monell v. Department of Social Services, 436 U.S. 658,
691-95 (1978).
Fifth Circuit precedent requires either personal involvement by an individual
Defendant in the alleged violation, or the enforcement of some policy or practice resulting
in the constitutional deprivation. Champagne v. Jefferson Parish Sheriff's Office, 188
F.3d 312, 314 (5th Cir. 1999) (emphasis added); Stewart v. Murphy, 174 F.3d 530, 53637 (5th Cir. 1999); Alton v. Texas A & M University, 168 F.3d 196, 200 (5th Cir. 1999).
Any claims against Epps in his individual capacity must be based on "direct acts or
omissions ... not the acts of subordinates." Coleman v. Houston Indep. School Dist., 113
F.3d 528, 534 (5th Cir. 1997).
Plaintiff claims it was Epps’s responsibility in his capacity as Commissioner to
monitor EMCF and make certain that it was upholding MDOC policies. Plaintiff also
contends that Epps personally failed to enforce policies of MDOC by his response to the
grievance. Plaintiff points to no policy which Epps enforced that led to his alleged
injuries. Yet a "prison official's failure to follow the prison's own policies, procedures, or
regulations does not constitute a violation of due process." Myers v. Kelvenhagen, 97

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F.3d 91, 94 (5th Cir. 1996). Without more, Plaintiff fails to allege sufficient facts to state
a claim against Commissioner Epps.
Because the Fifth Circuit has held that a prisoner has no federally protected liberty
interest in having his prison grievances investigated or answered favorably; Epps is not
liable for any failure of the ARP process to provide the result Plaintiff may desire.
Geiger, 404 F.3d at 374.
In this case, Plaintiff's allegations failed to establish that Epps was personally
involved in any constitutional violation against him. Supervisory liability under §1983
cannot attach where the allegation of liability is based upon a mere failure to act; instead,
any liability must be based upon active unconstitutional behavior. Leach v. Shelby
County Sheriff, 891 F.2d 1241, 1246 (6th Cir. 1989). There are no facts asserted that
Defendant Epps affirmatively participated in the acts that caused the alleged
constitutional deprivation or that he implemented unconstitutional policies that caused
Plaintiff’s alleged injuries while housed at the EMCF. See Mouille v. City of Live Oak,
Tex., 977 F.2d 924, 929 (5th Cir. 1992).
Epps claims Eleventh Amendment immunity for any official capacity claim against
him. For the reasons set forth in the motion and memorandum, the Court agrees and finds
any such claim barred. The Court also agrees that Commissioner Epps is personally
immune from suit under these circumstances, having qualified immunity from Plaintiff's
claims. However, because Plaintiff simply has failed to state a constitutional claim

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against Epps, no cause of action has been stated, and a detailed analysis of the immunity
involved in this case is unnecessary.
IV. Conclusion
For the foregoing reasons, Defendant Epps's Motion to Dismiss [45] is granted,
and all claims against Epps in his individual or in his official capacity are hereby
dismissed with prejudice.
SO ORDERED AND ADJUDGED, this the 30th day of August 2013.

S/ Linda R. Anderson
UNITED STATES MAGISTRATE JUDGE

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