Opinion
CIVIL ACTION NO. 4:08CV74-SA-JAD.
December 4, 2008
REPORT AND RECOMMENDATION
On December 2, 2008, plaintiff, an inmate of the Mississippi Department of Corrections, appeared before the court via video conference for a hearing pursuant to Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985) to determine if there exists a justiciable basis for his claim filed pursuant to 42 U.S.C. § 1983.
Plaintiff was assaulted by fellow inmate Timothy Payne and seeks damages for the alleged failure to protect him from the attack. He has stated a claim against those individuals with alleged direct, personal involvement in his case. His complaint also seeks damages from Warden Joe Roger, Superintendent Lawrence Kelly, and Commissioner Christopher Epps. In a § 1983 action the employers and supervisors cannot be held liable for the actions of prison employees under a respondeat superior theory of liability. Monell v. Department of Social Services, 436, U.S. 658, 98 S. Ct. 2018, 56 1. Ed. 611 (1978).
Accordingly it is recommended that Roger, Kelly and Epps be dismissed from this action with prejudice.
The parties are referred to 28 U.S.C. 636(b)(1) and Local Rule 72.1(C) for the appropriate procedure in the event any party desires to file objections to these findings and recommendations. Objections are required to be in writing and must be filed within ten days of this date. Failure to file written objections to the proposed finding and recommendations contained in this report within ten days from the date of filing will bar an aggrieved party from challenging on appeal both the proposed factual findings and the proposed legal conclusions accepted by the district court Douglass v. United Services Automobile Association, 79 F.3d 1415 (5th Cir. 1996).
Plaintiff is directed to acknowledge receipt of this report and recommendation by signing the enclosed acknowledgment form and returning it to the court within ten days of this date. Plaintiff is warned that failure to comply with the requirements of this paragraph may lead to the dismissal of this lawsuit under F.R.Civ.P. 41(b) for failure to prosecute and for failure to comply with an order of the court.