The Estate of Roosevelt Holliman v. Turner

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF MISSISSIPPI

GREENVILLE DIVISION

THE ESTATE OF ROOSEVELT PLAINTIFFS

HOLLIMAN; and MICHELLE

LUMZY, individually and in her

capacity as the Administratrix of

the Estate of Roosevelt Holliman

V. NO. 4:22-CV-75-DMB-JMV

MARSHAL TURNER, et al. DEFENDANTS

OPINION AND ORDER

Roosevelt Holliman was stabbed to death in his cell by fellow inmates at the Mississippi

State Penitentiary in Parchman, Mississippi. Holliman’s estate and the administratrix of his estate

sued multiple Mississippi Department of Corrections employees under 42 U.S.C. § 1983 alleging

violations of Holliman’s Eighth and Fourteenth Amendment rights as well as wrongful death under

Mississippi law. Certain defendants have moved to dismiss the claims on arguments that sovereign

immunity and qualified immunity bar the federal claims and the Mississippi Tort Claims Act bars

claims of inmates. Because sovereign immunity does not apply but these defendants are entitled

to qualified immunity, and because the plaintiffs failed to allege facts to show the wrongful death

claim is outside the Mississippi Tort Claims Act, dismissal will be granted.

I

Procedural History

On May 20, 2022, the Estate of Roosevelt Holliman and Michelle Lumzy, individually and

in her capacity as the Administratrix of the Estate of Roosevelt Holliman, filed a complaint in the

United States District Court for the Northern District of Mississippi against Marshal Turner,

Brenda S. Cox, Pelicia Hall, Jeworski Mallet, Sean Smith, Timothy Morris, Lee Simon, Marylen

Sturviant, Mike Hatten, Jacqueline Banks, Rita Bonner, Lola Nelson, Chanel Red Connor, and

John Doe. Doc. #1. Because Hatten, Banks, Bonner, and Nelson were named in the “Parties”

section of the complaint but not listed in the caption,1 the plaintiffs filed an amended complaint on

July 7, 2022. Doc. #16. Asserting jurisdiction under 28 U.S.C. § 1331, the amended complaint

alleges claims in four counts, all of which arise from the circumstances surrounding Holliman’s

death while he was an inmate at Parchman: (1) “Count I, Violation of Civil Rights Under 42 USC

§ 1983, Eighth Amendment – Failure to Protect;” (2) “Count II, Violation of Civil Rights Under

42 USC § 1983, Failure to Train & Supervise;” (3) “Count III, Violation of Civil Rights Under

42 U.S.C. § 1983, Eighth Amendment – Cruel and Unusual Punishment;” and (4) “Count IV,

Wrongful Death under Mississippi State Law.” Id. at 14–19. The plaintiffs seek “compensatory

damages;” “punitive damages;” and “reasonable attorney’s fees and costs;” and for the Estate only,

under the Mississippi Wrongful Death Act, “fair and equitable damages, including, but not limited

to, reasonable medical, hospital, funeral, and burial expenses …; reasonable compensation for Mr.

Holliman’s pain and suffering …; … damages for the loss of Mr. Holliman’s financial support,

society, and companionship; as well as any other damages cognizable under law;” and “[a]ny such

other relief as appears just and proper.” Id. at 19–20.

On July 28, 2022, Turner filed a motion to dismiss under Federal Rules of Civil Procedure

12(b)(1) and 12(b)(6). Doc. #20. On August 31, 2022, Banks, Cox, Hall, Mallett, Nelson, and

Smith filed a joint motion to dismiss also under Rules 12(b)(1) and 12(b)(6). Doc. #43. Both

motions are fully briefed.2 Docs. #21, #50, #54 (Turner’s motion); Docs. #44, #52, #55 (Banks,

Cox, Hall, Mallett, Nelson, and Smith’s motion).

1 See Doc. #1 at 1, 4.

2 Regarding Turner’s motion to dismiss, the plaintiffs initially filed their response and memorandum brief as one

document in violation of Local Rule 7(b)(2), and without the signature of local counsel in violation of Local Rule

83.1(d)(3). See Doc. #45. On September 2, 2022, the plaintiffs again incorrectly filed their response and memorandum

II

Standards

Motions under Federal Rule of Civil Procedure 12(b)(1) challenge a court’s subject matter

jurisdiction. A motion to dismiss under Rule 12(b)(1) is characterized as either “facial” or

“factual.” Superior MRI Servs., Inc. v. All. Healthcare Servs., Inc., 778 F.3d 502, 504 (5th Cir.

2015). “Where, as here, the movant mounts a facial attack on jurisdiction based only on the

allegations in the complaint, the court simply considers the sufficiency of the allegations in the

complaint because they are presumed to be true.” Lee v. Verizon Commc’ns., Inc., 837 F.3d 523,

533 (5th Cir. 2016) (internal quotation marks omitted).

To survive dismissal under the Rule 12(b)(6) standard, “a complaint must present enough

facts to state a plausible claim to relief. A plaintiff need not provide exhaustive detail to avoid

dismissal, but the pleaded facts must allow a reasonable inference that the plaintiff should prevail.”

Mandawala v. Ne. Baptist Hosp., Counts 1, 2, & 11, 16 F.4th 1144, 1150 (5th Cir. 2021) (citation

omitted). The Court must “accept all well-pleaded facts as true and construe the complaint in the

light most favorable to the plaintiff.” Heinze v. Tesco Corp., 971 F.3d 475, 479 (5th Cir. 2020).

However, the Court does not accept as true “conclusory allegations, unwarranted factual

inferences, or legal conclusions.” Id. In ruling on a motion to dismiss, “[t]he court’s review is

limited to the complaint, any documents attached to the complaint, and any documents attached to

the motion to dismiss that are central to the claim and referenced by the complaint.” Serrano v.

U.S. Customs & Border Patrol, 975 F.3d 488, 496 (5th Cir. 2020).

brief, this time by using the login credentials of one attorney and the signature of another attorney, and by linking the

memorandum to the response instead of to the original motion. See Docs. #46, #47. At the Clerk of Court’s

instruction, the plaintiffs finally properly filed their response documents.

III

Factual Allegations

At all relevant times, the Mississippi Department of Corrections (“MDOC”) employed

Marshal Turner as the Superintendent of Parchman Farms; Jacqueline Banks as a supervisor;

Brenda S. Cox as Warden and Chief of Security at Parchman Farms; Jeworski Mallet as Deputy

Commissioner of Institutions; Lola Nelson as Corrections Supervisor; and Sean Smith as

Corrections Investigation Division Director, also known as the Criminal Investigations Director.

Doc. #16 at 2–4. Pelicia Hall was MDOC Commissioner until she resigned on December 31,

2019. Id. at 3.

In mid-December 2020, Banks and Nelson “were personally contacted by [inmates’]

family members who explained [the] risks of violence and … [the] conduct by guards at Parchman

Farms. Nothing was done in response to these concerns.” Id. at 10–11. Hall, Mallet, and Smith

also “were warned by gang investigators of the high risk of gang violence in MDOC prisons,

including gang-affiliated guards giving keys to prisoners to allow them to attack other prisoners.”

Id. at 5, 13.

On January 2, 2020, Roosevelt Holliman was in his cell in “Unit 29 in Area 1 of Parchman

Farms,” the “Mississippi State Penitentiary … in Parchman, Mississippi.” Id. at 2, 6. Unit 29 is a

segregated section for prisoners “with heightened security and greater restrictions than general

population.” Id. at 8.

In “the evening of January 1, 2020, or early morning of January 2, 2020,” “Chanel Red

Conner, also known as Redmond,” a corrections officer at Parchman Farms, was on duty in

Holliman’s unit. Id. at 5–6. Redmond “was involved in gang related drug smuggling at Parchman

Farms” and “wanted to ‘get rid’ of a prisoner as a result of his involvement with an opposing gang.

This prisoner was not … Holliman.” Id. at 6. Redmond left Holliman’s unit “and went to a

neighboring unit where she released several inmates and provided them with large knives” that

had been “chained to the kitchen tables” before she unlocked them. Id. at 6–7. Officer John Doe

was the officer on duty in the neighboring unit when “Redmond instructed the prisoners to carry

out the murder.” Id. at 7. Doe “did nothing to stop … Redmond or the prisoners with whom she

had provided … weapons.” Id. Redmond and the armed prisoners returned to Holliman’s unit,

where she unlocked or provided the armed prisoners with keys to unlock Holliman’s cell door. Id.

Holliman was “stabbed to death by the prisoners [Redmond] released.” Id.

Redmond contacted Michelle Lumzy, Holliman’s sister and the administratrix of his estate,

to “explain[] that the death of [Holliman] was a mistake and … to apologize to [Lumzy] for causing

the death of her brother.” Id. at 2, 7. The public explanation of Holliman’s death is that he “was

killed in a ‘gang fight.’” Id. at 7. Redmond continues to work for MDOC at Parchman Farms

“and was not terminated nor disciplined for her conduct.” Id.

When Holliman was killed in the evening of January 1, 2020, or early morning of January

2, 2020, Parchman Farms was already “on lock down as a result of ‘major disturbances,’ i.e.

several violent altercations and deaths within MDOC prisons.” Id. at 8–9. On January 1, 2020,

and January 3, 2020, respectively, other inmates in Unit 29 were “stabbed to death as a result of

gang related violence.” Id. at 8, 10.

IV

Analysis

Though two separately filed motions to dismiss are before the Court, the motions and the

accompanying memoranda are virtually identical. In seeking dismissal under Rule 12(b)(1), the

defendants argue that the Eleventh Amendment provides sovereign immunity. Doc. #21 at PageID

118; Doc. #44 at PageID 202. In seeking dismissal of the federal claims under Rule 12(b)(6), the

defendants argue qualified immunity. Doc. #21 at PageID 121; Doc. #44 at PageID 205. And

regarding the state law wrongful death claim, the defendants argue such claims are statutorily

barred under the Mississippi Tort Claims Act (“MTCA”). Doc. #21 at PageID 126; Doc. #44 at

210.

The plaintiffs respond that (1) the Ex parte Young exception to the Eleventh Amendment

applies here, Doc. #50 at 9; Doc. #52 at 10; (2) the defendants violated Holliman’s constitutional

right to be protected from violence and therefore are not afforded qualified immunity, Doc. #50 at

12; Doc. #52 at 13; (3) the defendants have supervisory liability because their “failure to act

amounts to deliberate indifference to [Holliman’s] rights;” Doc. #50 at 15; Doc. #52 at 16; and (4)

the state law wrongful death claim overcomes the statutory bar to claims of inmates because the

wrongful acts here are intentional and criminal, Doc. #50 at 18–19; Doc. #52 at 19–21.

The defendants reply that the amended “complaint contains no specific allegations these

Defendants were involved in the alleged incident or that [they] committed any specific, intentional

criminal act in furtherance of the incident.” Doc. #55 at PageID 327; Doc. #54 at PageID 318.

A. State Sovereign Immunity

The defendants argue that the “Eleventh Amendment precludes claims against state

officials acting in their official capacities” and “also immunizes states from state-law claims

brought in federal court.” Doc. #21 at PageID 118; Doc. #44 at PageID 202–03. The plaintiffs

respond that this case falls under the Ex parte Young exception to Eleventh Amendment sovereign

immunity. Doc. #50 at 9; Doc. #52 at 10.

While “42 U.S.C. § 1983 does not disturb Mississippi’s state sovereign immunity”3 under

the Eleventh Amendment, only “[d]efendants in an official-capacity action may assert sovereign

immunity” because “sovereign immunity does not erect a barrier against suits to impose individual

3 Williams v. Banks, 956 F.3d 808, 811 (5th Cir. 2020).

and personal liability.” Lewis v. Clarke, 581 U.S. 155, 163 (2017) (internal quotation marks

omitted). Likewise, the Ex parte Young doctrine applies only to officers sued in their official

capacities. Williams ex rel. J.E. v. Reeves, 954 F.3d 729, 736 (5th Cir. 2020).

[T]o establish personal liability in a § 1983 action, it is enough to show that the

official, acting under the color of state law, caused the deprivation of a federal right.

More is required in an official-capacity action, however, for a governmental entity

is liable under § 1983 only when the entity itself is a moving force behind the

deprivation; thus, in an official-capacity suit the entity’s policy or custom must have

played a part in the violation of federal law.

Kentucky v. Graham, 473 U.S. 159, 166 (1985) (cleaned up).

Here, the plaintiffs sued the defendants in their personal and supervisory capacities. Doc.

#16 at 2–4. The amended complaint does not expressly allege any claims against the defendants

in their official capacities. Even if the plaintiffs intended the supervisory capacity claims to be

construed as official capacity claims, the claims still would be barred and dismissal still would be

proper because “absent waiver by the State or valid congressional override, the Eleventh

Amendment bars a damages action against a State,” or its officers sued in their official capacity,

in federal court. Graham, 473 U.S. at 169.

B. Qualified Immunity

The defendants argue that the plaintiffs made “no factual allegations to indicate that [they]

should have known or inferred an excessive risk that correctional staff … have affiliations with

prison gangs or that such staff … posed an excessive risk to Roosevelt Hamilton in particular.”

Doc. #21 at PageID 124; Doc. #44 at PageID 208. The plaintiffs respond that the defendants “had

been warned of the risk of violence and gang affiliated guards and … did not act on [their]

knowledge of the excessive risk of harm from uncontrolled violence when [they] knowingly

permitted guards with gang affiliations to work in Parchman Farms.” Doc. #50 at 15 (internal

quotation marks omitted); Doc. #52 at 16 (internal quotation marks omitted).

“To state a claim under § 1983, a plaintiff must allege a 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.” Sanchez v. Oliver, 995 F.3d 461, 466 (5th

Cir. 2021). “When a government official is sued under Section 1983, the plaintiff must allege that

the official was either personally involved in the deprivation or that his wrongful actions were

causally connected to it.” Stem v. Gomez, 813 F.3d 205, 210 (5th Cir. 2016) (internal quotation

marks omitted). “A supervisory official may be held liable only if (1) he affirmatively participates

in the acts that cause the constitutional deprivation, or (2) he implements unconstitutional policies

that casually result in the constitutional injury.” Porter v. Epps, 659 F.3d 440, 446 (5th Cir. 2011)

(alteration omitted).

Even when a § 1983 cause of action exists, the doctrine of qualified immunity “shields

federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the

official violated a statutory or constitutional right, and (2) that the right was clearly established at

the time of the challenged conduct.” Angulo v. Brown, 978 F.3d 942, 948 (5th Cir. 2020). Once

qualified immunity has been “raised as a defense by a defendant, … the plaintiffs have the burden

of establishing the proof and arguments necessary to overcome it.” Strickland v. City of Crenshaw,

114 F. Supp. 3d 400, 412 (N.D. Miss. 2015) (citing Pierce v. Smith, 117 F.3d 866, 871–72 (5th

Cir. 1997)).

Assuming without deciding that the plaintiffs’ allegations amount to a constitutional

violation, the plaintiffs did not allege any personal involvement on the part of any of the defendants

seeking dismissal. Further, the plaintiffs did not allege that any violation was the result of an

unconstitutional policy implemented by such defendants. Accordingly, qualified immunity applies

to require dismissal of the claims. See Cass v. City of Abilene, 814 F.3d 721, 728–29 (5th Cir.

2016) (defendant entitled to qualified immunity where plaintiff failed to establish personal

involvement).

C. State Law Claim

The defendants argue that the plaintiffs’ wrongful death claim is prohibited by statute

because Holliman was an inmate at the time the claim arose. Doc. #21 at PageID 126; Doc. #44

at PageID 210. The plaintiffs concede that the MTCA prohibits recovery by inmates based on

“non-intentional/non-criminal acts” but argue the MTCA does not apply here because the “acts

that led to Mr. Holliman’s death were intentional violations of his constitutional rights.” Doc. #50

at 19; Doc. #52 at 20–21.

Under the Mississippi Tort Claims Act,

[a] governmental entity and its employees acting within the course and scope of

their employment or duties shall not be liable for any claim: … [o]f any claimant

who at the time the claim arises is an inmate of any detention center, jail,

workhouse, penal farm, penitentiary, or other such institution[.]

Miss. Code. Ann. § 11-46-9(1)(m). The “jail inmate provisions of the MTCA apply … as to any

non-intentional/non-criminal acts alleged to have been committed upon [an] inmate.” Lee v.

Thompson, 859 So. 2d 981, 987 (Miss. 2003). However, allegations of intentional criminal acts

against inmates can form the basis of a viable claim, “not under the MTCA, but under

[Mississippi’s] wrongful death statute.” Id. While there is a “rebuttable presumption that any act

or omission of an employee within the time and at the place of his employment is within the course

and scope of his employment,” “an employee shall not be considered as acting within the course

and scope of his employment … if the employee’s conduct constituted … any criminal offense

other than traffic violations.” Miss. Code Ann. § 11-46-5 (2)–(3).

Under Count IV of the amended complaint, the plaintiffs allege that the “Defendants [sic]

wrongful acts and omissions as discussed herein caused the death of Mr. Holliman.” Doc. #16 at

19. Because the plaintiffs fail to allege that any moving defendant’s “wrongful acts and omissions”

meet the elements of any criminal offense, the defendants were acting within the course and scope

of their employment, meaning the wrongful death claim is barred by the MTCA and properly

dismissed.

V

Conclusion

The motions to dismiss [20][43] are GRANTED. The plaintiffs’ claims against Turner,

Banks, Cox, Hall, Mallett, Nelson, and Smith are DISMISSED without prejudice.

SO ORDERED, this 10th day of February, 2023.

/s/Debra M. Brown

UNITED STATES DISTRICT JUDGE