# The Estate of Roosevelt Holliman v. Turner

> District Court, N.D. Mississippi · September 1, 2023

URL: https://www.frixlaw.com/law-library/cases/10245213

## Case

- **Court:** District Court, N.D. Mississippi
- **Decided:** September 1, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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 Amendment and Fourteenth Amendment rights as well as
wrongful death under Mississippi law. The Court dismissed some claims and defendants on earlier
motions. Two of the remaining defendants—Marylen Sturdivant and Rita Bonner—have moved
to dismiss the claims against them based on insufficient service of process, sovereign immunity,
qualified immunity, and the Mississippi Tort Claims Act. Dismissal on sovereign immunity
grounds will be denied because Sturdivant and Bonner are not sued in their official capacities.
However, because the plaintiffs have not shown service of process was properly effectuated on
Sturdivant and Bonner; because Sturdivant and Bonner are entitled to qualified immunity on the §
1983 claims regardless; and because the plaintiffs fail to allege facts showing the wrongful death
claim is outside the Mississippi Tort Claims Act, Sturdivant and Bonner’s motion to dismiss such
claims 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 Mallett, Sean Smith, Timothy Morris, Lee Simon, Marylen
Sturdivant, 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, adding them to the caption. 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 2, 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.

1 See Doc. #1 at 1, 4.
On February 10, 2023, the Court granted the motions to dismiss of Turner, Banks, Cox,
Hall, Mallett, Nelson, and Smith based on failure to state a claim and dismissed those defendants
without prejudice. Doc. #87.
On January 9, 2023, Sturdivant and Bonner filed a joint motion to dismiss under Federal
Rules of Civil Procedure 12(b)(1), 12(b)(5), and 12(b)(6).2 Doc. #72. The motion is fully briefed.

Docs. #73, #75, #77.
II
Standards
Motions under Federal Rule of Civil Procedure 12(b)(1) challenge a court’s subject matter
jurisdiction. “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).
“Federal Rule of Civil Procedure 12(b)(5) provides for dismissal of a claim if service of
process was not timely made in accordance with Federal Rule of Civil Procedure 4 or was not
properly served in the appropriate manner.” Thomas v. New Leaders for New Sch., 278 F.R.D.
347, 349–50 (E.D. La. 2011) (citation omitted). “Unless service is waived, proof of service must
be made to the court. Except for service by a United States marshal or deputy marshal, proof must
be by the server’s affidavit.” Fed. R. Civ. P. 4(l)(1). “[O]nce the validity of service of process has

been contested, the plaintiff bears the burden of establishing its validity.” Henderson v. Republic
of Tex. Biker Rally, Inc., 672 F. App’x 383, 384 (5th Cir. 2016) (quoting Carimi v. Royal
Caribbean Cruise Line, Inc., 959 F.2d 1344, 1346 (5th Cir. 1992)).

2 Bonner and Sturdivant’s arguments to dismiss under Rules 12(b)(1) and 12(b)(6) are virtually identical to those
arguments made by the defendants already dismissed from this case. Compare Docs. #21 and #44 with Doc. #73.
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., 16 F.4th 1144, 1150 (5th Cir. 2021) (citing Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). 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) (citation omitted). However, the Court does not accept as true
“conclusory allegations, unwarranted factual inferences, or legal conclusions.” Id. (citations
omitted). In ruling on a 12(b)(6) 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) (citation omitted).
III
Relevant Factual Allegations
At all relevant times, the Mississippi Department of Corrections (“MDOC”) employed
Marylen Sturdivant as an Associate Warden and Rita Bonner as a Lieutenant. Doc. #16 at 4.
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 the
neighboring unit where she released several inmates and provided them with large knives” that
had been “chained to the kitchen tables.” 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 on 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 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
In seeking dismissal under Rule 12(b)(1), Sturdivant and Bonner argue that the Eleventh
Amendment provides sovereign immunity. Doc. #72 at PageID 377. And in seeking dismissal
under Rule 12(b)(5), they argue that the defendants failed to properly and timely serve process
upon Sturdivant and that service on Bonner was untimely. Id. at PageID 376–77. Finally, in
seeking dismissal under Rule 12(b)(6), they argue that the § 1983 claims are barred by qualified
immunity and that the state wrongful death claim is statutorily barred under the Mississippi Tort
Claims Act. Id. at PageID 377–79.
A. State Sovereign Immunity
Sturdivant and Bonner argue that the “Eleventh Amendment precludes claims against state

officials acting in their official capacities” and “also immunizes states and their officials from
state-law claims brought in federal court.” Doc. #73 at PageID 390. The plaintiffs respond that
this case falls under the Ex parte Young exception to Eleventh Amendment sovereign immunity.
Doc. #75 at 12–14. The defendants reply that no official capacity claims have been pled and
regardless, they would be barred by Eleventh Amendment immunity. Doc. #77 at 2.
Under the Eleventh Amendment, “[d]efendants in an official-capacity action may assert
sovereign immunity” because “sovereign immunity does not erect a barrier against suits to impose
individual and personal liability.” Lewis v. Clarke, 581 U.S. 155, 163 (2017) (cleaned up).
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 Sturdivant and Bonner in their personal and supervisory capacities.
Doc. #16 at 2–4. In their response to the motion to dismiss, the plaintiffs fail to explain the legal
significance of suing Bonner and Sturdivant in their supervisory capacities and do not equate
supervisory capacity claims to official capacity claims. Because the amended complaint does not
allege any official capacity claims against Sturdivant and Bonner, there are no official capacity
claims against them to dismiss.3
B. Insufficient Service of Process
Sturdivant and Bonner submit that the claims against them should be dismissed for

improper service of process, arguing that the plaintiffs “failed to properly and timely serve process
upon Sturdivant” and “while the plaintiffs personally served Bonner, that service is still, untimely
and subject to dismissal.” Doc. #73 at PageID 383. The plaintiffs respond that “[b]ecause service
has been made on Defendants Sturdivant and Bonner in their official capacities [at the Mississippi
Attorney General’s office], dismissal of these defendants in their official capacities is not
warranted.” Doc. #75 at 8–9. Bonner and Sturdivant reply that “[t]here are no official-capacity
claims levied against [them].” Doc. #77 at 2.
Service of process may be accomplished by:
(1) following state law for serving a summons … in the state where the district court
is located …; or

(2) doing any of the following:

(A) delivering a copy of the summons and of the complaint to the individual
personally;

(B) leaving a copy of each at the individual’s dwelling or usual place of
abode …;

(C) delivering a copy of each to an agent authorized by appointment or by
law to receive service of process.

3 “Inasmuch as [the plaintiffs] bring [§1983] claims against these officials in their supervisory capacity, these claims
fail …. In Monell v. Department of Social Services of City of New York, the [United States] Supreme Court held that
the doctrine of respondeat superior does not apply to claims brought under section 1983.” Torns v. City of Jackson,
622 F. App’x 414, 417 (5th Cir. 2015) (citing 436 U.S. 658, 692–93 (1978)). To the extent it may be argued the
supervisory capacity claims in this case equate to official capacity claims, such is barred by Eleventh Amendment
immunity because the claims are for money damages, not prospective relief. Oliver v. Scott, 276 F.3d 736, 742 (5th
Cir. 2002) (“[T]he Eleventh Amendment bars recovering § 1983 money damages from [state prison] officers in their
official capacity.”).
Fed. R. Civ. P. 4(e). Mississippi law allows service “by delivering a copy of the summons and of
the complaint to [a defendant] personally or to an agent authorized by appointment or by law to
receive service of process; or … by leaving a copy of the summons and complaint at the
defendant’s usual place of abode.” Miss. R. Civ. P. 4(d)(1). Mississippi law also allows service

“[u]pon the State of Mississippi or any one of its departments, officers or institutions, by delivering
a copy of the summons and complaint to the [Mississippi] Attorney General.” Id. at 4(d)(5).
… [T]o the extent [a plaintiff] asserts official-capacity claims against Individual
Defendants, service on the Attorney General would be appropriate. But to the extent
the claims against Individual Defendants are asserted against them in their
individual capacities [a plaintiff is] required to serve the defendants personally, as
an individual, in accordance with the requirements of Mississippi Rule of Civil
Procedure 4(d)(1)(A).

Coleman v. McKenzie-Kelly, 3:21-cv-168, 2021 WL 3673111, at *4 (S.D. Miss. Aug. 18, 2021)
(cleaned up). “The party making service has the burden of demonstrating its validity when an
objection to service is made.” Holly v. Metro. Transit Auth., 213 F. App’x 343, 344 (5th Cir.
2007). And under Federal Rule of Civil Procedure 4(m), service must be made “within 90 days
after the complaint is filed.”
Though the plaintiffs here have the burden of demonstrating the validity of service of
process, in response to Sturdivant and Bonner’s arguments, they only discuss the record of service
of process on the Mississippi Attorney General’s office. As discussed above, only individual
capacity claims are alleged against Sturdivant and Bonner so they must be served personally in
accordance with Rule 4(e). Since the plaintiffs present no evidence they served Sturdivant and
Bonner in their individual capacities,4 Sturdivant and Bonner’s motion to dismiss for insufficient
service of process is properly granted.

4 While Sturdivant and Bonner do not mention in their response when they were served, the docket reflects Bonner
was served on December 20, 2022, see Doc. #70, and Sturdivant was served on December 19, 2022, see Doc. #71.
However, according to a declaration by Sturdivant, the summons was left at an address where she does not live, see
C. Failure to State a Claim
Even if Sturdivant and Bonner were properly served, their motion to dismiss still would be
granted under Rule 12(b)(6) for failure to state a claim.
1. 42 U.S.C. § 1983

Sturdivant and Bonner submit the § 1983 claims against them should be dismissed for
failure to state a claim because the amended complaint’s allegations fail to overcome qualified
immunity. Specifically, they argue there is “no factual allegation that [they] knew, inferred, or
should have known about an excessive risk that correctional staff were affiliated with prison gangs
or that such staff posed an excessive risk to Roosevelt Holliman in particular.” Doc. #73 at PageID
397. The plaintiffs respond that Sturdivant and Bonner “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. #75 at 19 (internal quotation marks omitted). In their reply, Sturdivant
and Bonner do not address the qualified immunity argument except to say it was raised out of an

abundance of caution and is not yet ripe because the defendants have not been properly served.
Doc. #77 at 7.
“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) (citation omitted). “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

Doc. #72-1, and thus service on her as an individual was never completed. While summons was served on Bonner
individually on December 20, 2022, such was well after the October 19, 2022, extended deadline, see Doc. #39.
wrongful actions were causally connected to it.” Stem v. Gomez, 813 F.3d 205, 210 (5th Cir. 2016)
(citation and 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) (cleaned up).
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) (quoting
Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)). 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 do not allege any personal involvement of Sturdivant and Bonner. Nor do
the plaintiffs allege that any violation was the result of an unconstitutional policy implemented by
Sturdivant and Bonner. Accordingly, qualified immunity applies to require dismissal of the federal
claims against Sturdivant and Bonner. 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).
2. Mississippi Tort Claims Act
Sturdivant and Bonner argue the wrongful death claim under the Mississippi Torts Claim
Act should be dismissed for failure to state a claim because “the [Mississippi Tort Claims Act]
precludes any official-capacity claim for wrongful death” by “claimants who are inmates at the
time the claim arises” and because “the plaintiffs have failed to plead an individual-capacity
wrongful death claim against [them].” Doc. #73 at PageID 399. The plaintiffs concede that the
“provisions of the MTCA apply in this case as to any non-intentional/non-criminal acts alleged to

have been committed … by officers while in the course and scope of their employment” but
contend they “alleged intentional criminal acts” and “violations of [Holliman’s] constitutional
rights.” Doc. #75 at 23-24. Sturdivant and Bonner reply that “any official capacity claim for
wrongful death against [them] is barred by [the MTCA] and must be dismissed.” Doc. #77 at 6.
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) (2013). 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) (2013).
In Count IV of the amended complaint, the plaintiffs allege that the “Defendants[’]
wrongful acts and omissions as discussed herein caused the death of Mr. Holliman.” Doc. #16 at
19. Because the plaintiffs fail to allege that Sturdivant’s or Bonner’s “wrongful acts and
omissions” meet the elements of any criminal offense, they were acting within the course and
scope of their employment, meaning the wrongful death claim is barred by the MTCA and properly
dismissed.
VI
Conclusion
Sturdivant and Bonner’s motion to dismiss [72] is GRANTED. The claims against Bonner
and Sturdivant are DISMISSED without prejudice.
SO ORDERED, this 1st day of September, 2023.
/s/Debra M. Brown
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10245213. Public record. Not legal advice.